Travel Ban on Al-Haq General Director Upheld: Once Again, the Israeli Judiciary Demonstrates Its Subservience to the Military and Security Authorities

from The Alternative Information Center (AIC)

The Israeli High Court of Justice (HCJ) yesterday issued its decision to dismiss the petition brought by the General Director of Al-Haq, Mr. Shawan Jabarin, challenging the arbitrary, indefinite and unconditional travel ban imposed on him by the Israeli military authorities.

Having heard the arguments and reviewed the evidence presented to it in two separate hearings on 5 March and 9 March 2009, the highest judicial body in Israel issued a judgment amounting to five paragraphs. A translation of the decision is available here. 

Over the course of the two hearings, parts of which were conducted ex parte, with only the judges, the State Attorney, and members of the Israeli General Security Services (GSS) present, the three-judge panel made repeated attempts to resolve the matter by exploring the possibility of a "limited travel permit or a ‘creative‘ solution that partially realises the petitioner‘s ability to enjoy his right to freedom of movement" (see para. 4 of the judgment), but the GSS refused to alter their position. 

Instead of then issuing a ruling to give effect to the compromise solution that it had discussed, the Court ultimately deferred absolutely to the position of the GSS. Despite acknowledging that denying Mr. Jabarin‘s lawyer access to the "evidence" against his client may compromise the fairness of the trial (see para. 5 of the judgment: "deviation from the rules of adversarial debate makes things difficult for the petitioner’s representative"), the Court nonetheless rejected the petition on the sole basis of the secret "evidence" that Mr. Jabarin is an active member of a “terrorist” organisation. 

Indeed, the secret evidence procedure adopted by the HCJ in this and other cases raises serious questions about basic due process principles and fair trial standards in Israel. The use of secret evidence has long been challenged in the jurisprudence of modern democracies as inimical to the pursuit of justice. Renowned US Supreme Court Justice Robert H. Jackson famously adjudged that “[t]he plea that evidence of guilt must be secret is abhorrent to free men” (U.S. ex rel. Knauff v. Shaughnessy (1950) 338 U.S. 537, 551). In the contemporary context of the ‘global war on terror,‘ the use of secret evidence procedures have been held in violation of the right to a fair trial by such esteemed judicial authorities as the House of Lords (see, for example, Secretary of State for the Home Department v. MB (2007) UKHL 46) and the European Court of Human Rights (see, for example, V. v Finland, ECHR 40412/98, Judgment of 24 July 2007).     

By basing its decision on such a procedure, by disregarding fundamental legal principles, and by refusing to take a stance that would deviate from the position of the GSS even in the slightest, the Israeli High Court has yet again exposed itself as merely a rubber-stamp for the decisions of the military and intelligence authorities, rather than an independent branch of government. 

Al-Haq would like to express its sincere thanks to the numerous Palestinian, Israeli and international organisations and diplomatic representatives who attended the hearings and continue to campaign and intervene on Mr. Jabarin’s behalf.