Palestinians jailed on secret charges based on secret evidence

Instead of presenting evidence, the Israeli army uses administrative measures against Palestinians such as deportation or breaking up families, based on evidence that never sees the light of day, and cannot be refuted, for crimes the public – and the accused – will never know.

By Sari Bashi

You can’t sell Bakr Haffi’s case to the mainstream media, and you can’t win it in the Israeli High Court of Justice. The 38-year-old Palestinian man, a bee keeper by trade, has not seen his wife and two daughters for two years. It all began when he was arrested in his home in Tulkarem in the northern West Bank on suspicion of being a Hamas activist. After a month of interrogation that yielded no results, a military judge ordered his release. But instead of releasing him back to his home and family in Tulkarem, the military removed him to the Gaza Strip, which is listed as his place of residence in the Israeli-administered Palestinian population registry. Israel refuses to recognize relocation from the Gaza Strip to the West Bank, even for people like Bakr, who moved to the West Bank back in 1999 and established a family there.

It has been two years since Bakr was removed from his home. He now relies on his brother in Gaza for financial support and hasn’t seen his wife and daughters, now aged 2 and 3.5, for two years. Bakr’s wife and daughters have become dependent on the charity of welfare officials in the West Bank. The girls no longer know who their father is.

Bakr’s case has exhausted every legal procedure that Israel’s occupation bureaucracy has to offer. He requested legal assistance from Gisha, and we contacted the army on his behalf. We demanded and received a hearing at Erez Crossing, where we noted that his release from detention in 2010 was specifically due to lack of evidence. We mentioned a prior arrest, in 2003, for car theft, for which he was charged and convicted, and he served his sentence. We asked that if there is any evidence against him now, let it be presented, so that we can respond. We emphasized that the army apparently recognized Bakr’s residency in the West Bank, because in 2006, after he was previously removed from the West Bank to the Gaza Strip, he was granted a permit to enter Israel in order to return to the West Bank. The permit was valid for a month. We raised questions about the “risk” posed by a man who received a month-long permit to enter Israel, including overnight stay. When the military issued its final refusal, we submitted a petition to the High Court of Justice.

You can’t win Bakr’s case in the High Court of Justice, and there is no chance of getting public support for him through the mainstream media, because the state’s claim – that he is involved in hostile activity against Israel – is backed by secret information that will tip the scales against him. I know this, even though I am writing these words before the hearing in his case, scheduled for Wednesday, January 4.* The outcome is known, even though we haven’t yet gone through the usual ritual of leaving the courtroom to let the justices speak to ISA representatives in private, and we have yet to return to the courtroom to hear the judges explain that it is not possible to intervene in the security officials’ decision. For reasons of professional ethics, I have refrained from publishing this article before the justices dismiss the petition at the hearing. Let it not be said that I didn’t give the legal process a chance.

In the six years in which Gisha has been providing legal assistance to Palestinians, the High Court justices have yet to deliver a decision that goes against classified material presented by the Internal Security Agency (Shin Bet). Experience shows that information about security risks can be based on statements made by collaborators trying to please their handlers, and people can be accused as security risks based on non-violent political activism, a refusal to serve as a collaborator for the ISA, a relative’s actions against the State of Israel, and even because of the mere fact that a relative was injured or killed by the military, rendering the entire family suspect of wanting to seek revenge.

And yes, it’s safe to assume that in some cases the classified material does contain concrete evidence of violent actions. The law allows the army to present the alleged evidence against Bakr and charge him for any alleged crimes. Yet, as in so many other cases, the army prefers to use administrative measures, such as deporting a person and denying his or her return. These measures are based on evidence that never sees the light of day, and as such, cannot be refuted. Bakr’s punishment: the break-up of his family. Bakr’s crime: we’ll never know.

Unlike most of our clients in the Gaza Strip, we were able to speak with Bakr in person, when he was summoned for a hearing at Erez Crossing. It was the eve of Eid al-Fitr, 2010. At the end of the hearing, he gave Adv. Nomi Heger and Intake Coordinator Shadi Butthish, both from Gisha, three small boxes. Each contained a pair of small, delicate gold earrings, for his wife and daughters – presents for the holiday. Bakr understood that they would have to spend the holiday without him.

Another holiday has passed since then, but this year he wasn’t even able to send gifts.

*Epilogue: On January 4, 2012, the Israeli High Court of Justice heard HCJ 3010/11 Bakr Haffi v. Minister of Defense. After reviewing the classified material, the justices rejected Bakr’s request to return to his family in Tulkarem.

Sari Bashi is the Executive Director of Gisha-Legal Center for Freedom of Movement. A Hebrew version of this post was published in HaOkets on January 4, 2012.