Israel: Palestinian's Conviction Violates Freedom of Assembly
|Publisher||Human Rights Watch|
|Publication Date||30 May 2012|
|Cite as||Human Rights Watch, Israel: Palestinian's Conviction Violates Freedom of Assembly, 30 May 2012, available at: http://www.refworld.org/docid/4fc8b1ab2.html [accessed 10 March 2014]|
|Disclaimer||This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.|
An Israeli military court's conviction on May 20, 2012, of a Palestinian activist, Bassem Tamimi, of leading illegal demonstrations violates his right to freedom of assembly, while its conviction of him on a second charge of urging children to throw stones on the basis of a child's coercively-obtained statement raises serious concerns about the fairness of his trial, Human Rights Watch said today. The court sentenced Tamimi on May 29 to 13 months in prison, which he has already served, as well as a 17-month suspended sentence.
"The Israeli military authorities seem to have known it would be hard to justify convicting an activist for only leading peaceful protests, so they apparently used oppressive methods to produce evidence that he also encouraged children to throw stones," said Joe Stork, deputy Middle East director at Human Rights Watch.
The court convicted Tamimi of leading illegal demonstrations, on the basis of Israeli military orders that criminalize even non-violent protests. The conviction came against a background of laws and practices that made it practically impossible for Tamimi to hold a demonstration in his home village, Human Rights Watch said.
"Israel's military justice system indicted itself with its verdict against Bassem Tamimi," Stork said. "In practice, the military made it virtually impossible for him to protest in his village and then convicted him of leading illegal demonstrations when he tried to hold protests anyway."
He was further convicted of soliciting children and youths to throw stones on the basis of evidence that, the court said, rested to a decisive degree on a statement obtained by police interrogators from a 15-year-old Palestinian boy whom soldiers had arrested at gunpoint late at night. They questioned the boy for more than four hours the following morning, after he had not slept, without letting him have a parent or lawyer present. In that statement, the boy said that Tamimi had encouraged youths to throw stones, but in court the boy retracted his statement and said the police had instructed him to incriminate Tamimi.
The Israeli military raided Tamimi's home and arrested him on March 24, 2011. The military authorities have detained Bassam Tamimi 11 times but had never previously charged him with a crime. The military court ordered his release on bail on April 24, 2012, so that he could visit his mother, who had suffered a stroke. Tamimi is currently living in Ramallah and is barred from participating in the weekly protests in his home village of Nabi Saleh, in the West Bank.
On May 29, the court sentenced Tamimi to 13 months in prison, amounting to the time he had already served. He also received a 17-month suspended sentence that will be triggered if he is convicted, during the next five years, of incitement or stone throwing, and a two-month sentence if he is convicted of participating in illegal demonstrations during the next two years.
In a similar case in 2011, an Israeli military appeals court sentenced Abdallah Abu Rahme, a Palestinian advocate of nonviolent protests, to 16 months in prison.
In court, Tamimi acknowledged organizing weekly protests in the village against the confiscation of village lands by a Jewish settlement, Halamish, and the denial of Palestinian access to the village's agricultural spring. Tamimi denied the charge of soliciting village youths to throw stones at Israeli security forces.
During the weekly Friday afternoon protests, villagers typically attempt to walk to the spring on the village's agricultural lands, but are prevented by Israeli security forces, based on Human Rights Watch observations and reports by the media and nongovernmental groups. The Israeli rights group B'Tselem has documented both stone throwing at Israeli soldiers by village youths and the repeated use of excessive force against demonstrators by Israeli soldiers. Israeli forces have repeatedly prevented villagers from demonstrating by firing rubber-coated bullets and tear-gas canisters at them before they could leave the village square to walk toward the agricultural spring, B'Tselem found.
The Ofer military court, in the West Bank, ruled that from January to November 2010 Tamimi had participated in protests in violation of Military Order No. 101, which prohibits West Bank Palestinians from holding any assembly, rally, or procession of ten or more people on any issue that "could be interpreted as political" without a military permit, with violators sentenced to a possible ten years in prison or a fine, or both (articles 3, 1, 10).
B'Tselem reported that, on many occasions, before the weekly demonstrations began, the Israeli army declared the Nabi Saleh a "closed military area," to which entry is prohibited, and blocked the roads leading to it. In court, Tamimi acknowledged his role in the protests but emphasized that he called consistently for the protests to be non-violent. Human Rights Watch has documented numerous other cases in which the Israeli military has subjected Palestinian advocates of peaceful protests to arbitrary arrests and abusive military prosecutions.
Tamimi's conviction for soliciting village youths to throw stones at Israeli military forces was based on a 2009 military order regarding security provisions, which carries a possible sentence of ten years in prison (articles 212(2), 201(a)(4)). The verdict is based on the written statement of the 15-year-old, Mu'tasim Tamimi, in the early morning hours of January 27, 2011.
In his statement to police after his interrogation, Mu'tasim Tamimi said that he had seen Bassem Tamimi standing on a rooftop in Nabi Saleh during some of the Friday demonstrations, gesturing at the location of Israeli security forces and speaking into his mobile phone. The statement also said that he had heard Bassem Tamimi encouraging children and youths to throw stones.
A video of Mu'tasim Tamimi's questioning shows police shouting at him and telling him to identify the "grownups" from the village who "incited you to throw stones." Two police questioned him, while several other police were in the room at the time. In a court hearing on November 29, 2011, the boy said that security forces had "beaten [him] up" after arresting him and instructed him to incriminate Bassem Tamimi.
Bassem Tamimi's lawyer, Labib Habib, argued that the court should exclude the boy's statement to police. The boy's allegation that Tamimi had orchestrated village youths to throw stones, which he later retracted in court, was elicited under coercive circumstances of arrest and questioning, Habib argued.
In its verdict, the military court acknowledged the harsh circumstances of the boy's arrest and interrogation, but declined to exclude his testimony. Although police failed to properly inform the boy of his right to remain silent at the beginning of his questioning, the court ruled, they did so later, before the boy had incriminated Bassem Tamimi. The court acknowledged that the boy repeatedly expressed fatigue during his interrogation, but argued that when police asked him if he wanted to sleep, the boy agreed to finish the interrogation first.
The verdict does not explicitly weigh the damage to the boy's rights resulting from the fact that the boy's lawyer and parents were not present during his interrogation, and states that the fact the boy could be seen laughing in the interrogation video was evidence that his testimony was not coerced.
The Israeli Youth Law (Amendment 14, of 2008), which applies to Israeli children (including settlers in the West Bank), obliges police not to arrest children at night, to allow their parents and lawyers to be present during questioning, and to use police questioners who have been trained to question children. In prior cases, the Israeli military courts have stated that they will apply the "spirit" of the Israeli Youth Law to Palestinian children in the West Bank, although it does not technically apply to them.
The court acknowledged inconsistencies in Mu'tasim Tamimi's testimony, but said it had found support for his incriminating claim that Bassem Tamimi had encouraged youths to throw stones during demonstrations in other witnesses' statements, including an Israeli army officer who said he had seen Bassem Tamimi gesturing at security forces and speaking on his mobile phone while observing Friday protests from a rooftop in Nabi Saleh. None of the other witnesses claimed to have heard him urging anyone to throw rocks or engage in any other violent behavior.
The verdict exonerated Bassem Tamimi of two other charges of incitement and obstruction of justice, which had been based on the incriminating statements of a 14-year-old boy, Islam Dar Ayyoub, obtained in a police interrogation similar to that of Mu'tasim Tamimi. Dar Ayyoub had also been arrested at gunpoint, denied sleep, and interrogated the following morning without a lawyer or parent present, and he, too, retracted his police statement in court. The court held that Dar Ayyoub's police statement was admissible but "unreliable" on certain points due to internal "contradictions.
"Israel should immediately stop the armed arrests of Palestinian children late at night unless strictly required by imperative reasons of security," Stork said. "Hanging a guilty verdict on a statement by a child after such an arrest, without sleep or a parent or lawyer present, smacks of a determination to convict regardless of fairness."
Another witness, Uday Tamimi, 20, also told the court that police interrogators had instructed him to incriminate Bassem Tamimi. The court excluded Uday Tamimi's allegation, made during his first interrogation by police, that Bassem Tamimi had solicited villagers to throw stones. The prosecution did not contest that UdayTamimi had participated in only one demonstration, or that he retracted the allegation against Bassem Tamimi during subsequent police questioning. In court, Uday Tamimi acknowledged that it was common knowledge in the village that protest organizers "call[ed] for a peaceful demonstration."