Legal Advocacy

Supreme Court Petitions: Civil and Political Rights

Political Participation

The Right to Demonstrate for Uprooted Arab Residents of Umm El Faraj. The Committee for the Defense of the Rights of Uprooted Palestinians applied to the police for a permit to demonstrate inside Moshav Ben 'Ami to protest the Moshav's recent destruction of a mosque and cemetery. The Moshav sits on the land of Umm al-Faraj, an Arab village uprooted in 1948. Petitioned the Court in 09/98 to compel the police to grant a permit to the uprooted Arab residents to demonstrate at the holy sites. Reached a final settlement in 01/99, when the police subsequently agreed in to allow a maximum of 300 demonstrators to gather at the site, provided that they enter the Moshav on buses and that speeches are not electronically amplified.

(H.C. 5913/98, Wakim Wakim, et. al. v. Israel Police, et. al.)

The Right for Arab Representation in Arab Local Government. Petition filed in 8/99 against the government-appointed Mayor and Local Council Secretary (both ultra-Orthodox Shas party members) of the Arab village of Mazra'ah demanding that the appointment of the Council Secretary be rescinded on the grounds that it was politically biased, with recruitment conducted through a closed bid, which effectively excluded all Arab residents of the village.

Result: Petition withdrawn in 9/00, as open elections were scheduled to take place on the day following the last hearing. Court ordered the respondents to pay NIS 5,000 in legal fees to Adalah.

(H.C. 5734/99, Omar Imbaraki v. Yitzhak Edan, Mayor of Mazra'ah, et. al.)

Appeal Against Six-Month Administrative Detention Order Issued Against a Palestinian Citizen Political Activist. In 12/00, then Prime Minister and Minister of Defense, Ehud Barak, issued an order based on "secret evidence" to hold Mr. Ghassan Athamleh (Central Committee member of the National Democratic Assembly Party) under administrative detention for six months. Adalah submitted an appeal against the order to the President of the Nazareth District Court (NDC), which was rejected. In 2/01, Adalah filed an appeal to the Supreme Court against the Minister of Defense seeking to overturn the District Court's decision. Adalah argued that administrative detention severely violates Mr. Athamleh's due process rights, in clear contradiction with the Basic Law: Human Dignity and Liberty (1992). Further, Adalah argued that Mr. Athamleh's detention was politically motivated, and demanded that if the State had evidence, it should initiate a criminal prosecution and submit an indictment.

Result: Appeal rejected and District Court decision upheld. Administrative detention order affirmed. Mr. Athamleh was released from administrative detention in 6/01.

(A.D.A. 1232/01, Ghassan Athamleh v. The Minister of Defense, unpublished decision)

MK Bishara’s Political Speeches Case: Parliamentary Immunity is a Per Se Matter of Law. In 11/01, the Knesset voted to lift the immunity of MK Dr. Azmi Bishara, head of the National Democratic Assembly (NDA) party. The lifting of MK Bishara’s immunity is the first time since 1948 that an MK has been stripped of his immunity for voicing political dissent in the course of performing his duties as an elected, public representative. This move came at the request of then-Attorney General Elyakim Rubenstein, in order to initiate two criminal prosecutions against MK Bishara:

(1) Syria Visits Case: MK Bishara and two of his parliamentary assistants were charged under Article 18(d) of the Emergency Regulations (Foreign Travel) – 1948 for organizing a series of visits for elderly Palestinian citizens of Israel to travel to Syria to visit refugee relatives they had not seen since 1948. Adalah represented MK Bishara and his parliamentary aides before a three-judge panel in the Magistrate Court in Natzeret Illit. After oral hearings and the filing of numerous written briefs, in 4/03, the Court unanimously decided to dismiss the indictment against MK Bishara, accepting Adalah’s argument that Article 17(c) of the Emergency Regulations exempts MKs from prosecution for this offense. In 12/05, the Magistrate Court ruled to not convict MK Bishara’s former parliamentary assistants, Mr. Mousa Diab and Mr. Ashraf Qurtam of the criminal charges against them. In lieu of conviction, the Court sentenced Mr. Diab and Mr. Qurtam to a symbolic punishment of 200-300 hours of community service.

(2) Political Speeches Case: In this case, MK Bishara is charged with two counts of allegedly “supporting a terrorist organization,” namely Hezbollah, based on political speeches he made, in violation of sections 4(a), 4(b) and 4(g) of the Prevention of Terrorism Ordinance - 1948. In these public speeches, made in Umm al-Fahem (2000) and in Syria (2001), MK Bishara analyzed the factors that led to the end of the Israeli occupation of South Lebanon and spoke about the realities of the continued Israeli occupation of the Palestinian territories. According to the Attorney General: MK Bishara’s speeches were not legitimate expressions of political opinions, but a call to adopt terrorist methods against Israeli citizens and the Israeli government, in order to alter government policies; parliamentary immunity was not intended to protect MKs who make such speeches and therefore it was correct for MK Bishara’s immunity to be lifted; and the Magistrate Court does not have the jurisdiction to rule on the legality of removing MK Bishara’s immunity by the Knesset.

After numerous hearings and written submissions, the Magistrate Court ruled, in a half-page decision delivered in 11/03, not to dismiss the indictment against MK Bishara. The Court stated that there is no need to decide on MK Bishara’s preliminary arguments regarding his parliamentary immunity, among other issues, at this stage stating that they relate to “factual questions, which belong in the main part of the case and not within the framework of preliminary arguments.” The Court also determined that “the aforementioned arguments have no place in the preliminary stage but rather following the hearing the evidence of the case,” and further stated that, “detailed reasons will be given as necessary in the body of the verdict, which will be provided hereafter.”

Adalah filed a petition to the Supreme Court in 12/03, shortly after the Magistrate Court’s refusal to dismiss the indictment against MK Bishara in the “political speeches case,” challenging this decision on his behalf. The petition, along with a motion to stay the proceedings in the Magistrate Court pending a final outcome of the case, was brought against the Attorney General, the Knesset, and the Magistrate Court. The petition seeks a ruling by the Supreme Court on the issue of immunity. Specifically, the petition demands that: (i) the Knesset cancel its November 2001 decision to revoke MK Bishara’s immunity from prosecution; (ii) the Attorney General cancel the indictment; and (iii) the Magistrate Court stop all criminal proceedings as long as no final decision has been made on the status of MK Bishara’s parliamentary immunity.

Adalah had raised several preliminary arguments before the Magistrate Court as to why the “political speeches” indictment is legally flawed and must be dismissed. A key argument raised is that there is no legal basis for the lifting of MK Bishara’s immunity. The two speeches delivered by MK Bishara, Adalah argued, fall within the scope of his parliamentary immunity and are classical cases of political speech, which enjoy full legal protection. In addition, Adalah argued, MK Bishara’s political speeches were made in fulfillment of his role as an elected political representative, and as such, he cannot be criminally prosecuted for expressing opinions in accordance with the political party agenda for which he was elected. Adalah also contended that MK Bishara also made identical speeches in the Knesset, for which no indictments were sought, prior to the delivery of the Umm al-Fahem and Syria speeches.

Adalah argued that the lifting of MK Bishara’s immunity by the Knesset was illegal in the first instance, as was his subsequent indictment by the Attorney General. Further, Adalah contended that the Magistrate Court also erred in that it should have provided a reasoned decision concerning the preliminary arguments, particularly on the issue of immunity, which is a per se matter of law. Under the law, substantive immunity includes political statements made by members of Knesset both in the Knesset and at public gatherings outside of the Knesset.

In 11/04, the Supreme Court held a first hearing on the petition, at which the Court determined, as Adalah had argued, that the issue of MK Bishara's immunity must be resolved pre-trial. The Court suggested that the AG should choose one of two tracks: either the case should be sent back to the Magistrate Court to decide on the status of MK Bishara's parliamentary immunity, or the Supreme Court will hold hearings and give the final decision on this issue. The Court granted the AG's request of 30 days to prepare its written response.

According to a decision of the Inter-Parliamentary Union's (IPU) Committee on the Human Rights of Parliamentarians issued in 1/05 in MK Bishara’s case, “Deciding upon the question of immunity at the end of a trial is legal absurdity, as it wholly defeats the purpose of immunity.” The IPU is an international organization of 130 national parliaments worldwide, including Israel's Knesset.

In 2/05, the AG's representative informed Adalah that the AG decided that the Supreme Court is the appropriate venue for deciding on this matter.

In 2/06, the Supreme Court ruled that the speeches made by MK Bishara fell were protected under his parliamentary immunity and dismissed all criminal charges against him.

H.C. 11225/03, MK Azmi Bishara, et. al. v. The Attorney General, et. al.

Right to Demonstrate against the War on Iraq. Adalah filed a petition in 4/03 on behalf of two protest demonstration organizers against the Israel Police and the Police Commander of the Amakim Region, Moshe Waldman. The petitioners applied to the police for a permit to demonstrate in major thoroughfares in Haifa against the US-led War on Iraq. Two days prior to the proposed demonstration date, the police issued directives restricting the protest to minor roads. Petition withdrawn after the Attorney General’s office contacted Adalah and guaranteed that the respondents would allow the demonstration to proceed on the proposed route.

H.C. 3479/03, Hisham Nafa’, et. al. v. Israel Police and Moshe Waldman, Commander of the Amakim Region (petition withdrawn).

Right to Commemorate al-Nakba Petition submitted by Adalah in 5/03 on behalf of the Association for the Defense of the Rights for the Internally Displaced Persons in Israel against the Haifa Police. The Association sought a permit in 3/03 to demonstrate on Israel’s Independence Day, which is also the day that al-Nakba is commemorated. For the Palestinian people, al-Nakba marks the “catastrophe” of 1948 - the losses of life, property, and the national home. Al-Nakba is part of Palestinian history, culture, and identity, and, for Palestinians, maintaining a memory of al-Nakba is essential to upholding one’s dignity. The police refused to grant the organizers a permit, rejecting the proposed route of the demonstration and prohibiting the raising of the Palestinian flag by the protestors. Adalah, on behalf of the organizers, challenged the restrictions imposed on the demonstration by the police. Initially, the Court scheduled a hearing for the day after the proposed march. Adalah then filed a motion for an injunction against this decision and the next day, the date of the planned march, the Court rejected the petition. The Court stated that: “Without needing to go into the petitioners’ arguments, the Court rejects the petition because the issues addressed do not justify convening a Court hearing on Independence Day.”

(H.C. 4130/03, Association for the Defense of the Rights for the Internally Displaced Persons in Israel, et. al. v. Haifa Police, et. al.)

Request to Annul Prior Supreme Court Judgment Concerning the National Democratic Assembly Party (NDA) and the 1999 Knesset Elections. A petition and appeal were filed in 3/02 on behalf of MK Azmi Bishara and the NDA political party against Avner Erlich and others, seeking the extraordinary remedy of canceling a 1999 Supreme Court judgment. While the Supreme Court dismissed the original appeal seeking the NDA’s disqualification from running in the 1999 Knesset elections, the Court noted in its ruling, inter alia, that MK Bishara and the NDA party had been “dangerously close to the line that should not be crossed.” Adalah argued that the Court had no jurisdiction to discuss the merits of Erlich’s appeal seeking to disqualify the NDA party from the 1999 national elections; that the proceedings were fundamentally unfair as MK Azmi Bishara was not afforded the right to be heard; and that the ruling is being used in a prejudicial manner in the context of the criminal cases pending against MK Bishara.

Result: In 2/03, in an unprecedented ruling, the Supreme Court issued a de facto cancellation of statements made in its 1999 decision. The Court stated that the statements contained in the Erlich case against MK Bishara and the NDA cannot be used against them, because of the undisputed facts that they were not present at the hearing, were not notified by the Court, and did not have the opportunity to explain or to respond to allegations against them. Based on the Court’s statement, agreed upon by the parties, Adalah withdrew the petition. While the 1999 Supreme Court decision was not cancelled, the new judgment effectively deprives it of any legal authority.

(H.C. 2247/02, MK Azmi Bishara, et. al. v. Avner Erlich, et. al., decision delivered on 17 February 2003)

The Supreme Court decision in English translation

Appeal to End Two-Month House Arrest of Political Protestor. An appeal was filed in 5/02 on behalf of Mr. Basil Amara, a 23-year-old Arab citizen of Israel, who was arrested and detained following a Land Day demonstration where he displayed a photo of Sheikh Hassan Nasrallah, the Secretary-General of Hezbollah. In 4/02, Mr. Amara was indicted for “supporting a terrorist organization” under the emergency powers Prevention of Terrorism Ordinance (1948). In 5/02, the Nazareth Magistrate Court ordered that Mr. Amara remain under house arrest until the end of trial; a subsequent appeal to the Nazareth District Court was rejected. Adalah argued before the Supreme Court that there is no legal cause for holding Mr. Amara under house arrest, and that the conditions of his arrest amount to preventive punishment and are disproportionate to the charges against him.

Result: In 6/02, the Supreme Court upheld the decisions of the lower courts, ruling that Mr. Amara could request that the Magistrate Court re-examine the conditions of his detention if the criminal trial continues for an extended period of time.

(Detention Appeal 4285/02, Basil Amara v. The State of Israel, unpublished decision delivered on 11 June 2002).

Right to Arab Representation on the Knesset's Special Economic Committee. This petition was filed in 5/02 on behalf of three Arab political parties - The United Arab List, The National Arab Party and The National Democratic Assembly - challenging the Knesset's decision to establish a special Economic Committee, which excluded all Arab members of Knesset (MKs). Since the largest Arab political party - The United Arab List - has only three seats in the Knesset, the Knesset's decision to give seats to political parties with over five MKs effectively denied representation to the Arab minority in the decision-making process on crucial budgetary matters. The petitioners argued that the Knesset's decision violated Article 3 of the Basic Law: The Knesset, which enumerates the right for equality in election to the Knesset.

Result: As a result of the filing of the petition, within two days, the special Economic Committee recommended that the Knesset add one Arab MK (and one alternate from the coalition) to the committee. Based on this settlement, Adalah withdrew the petition on 29 May 2002.

(H.C. 4514/02, The United Arab List, et. al. v. The Knesset Committee, et. al., petition withdrawn).

Elections Disqualifications Cases. In mid-12/02, the Attorney General, right-wing MKs and political parties filed motions to the Central Elections Committee (CEC) seeking to ban three Arab MKs, as individual candidates, and three Arab political parties from participating in the 2003 Knesset elections. The disqualification motions were submitted pursuant to 2002 amendments to Section 7A of the Basic Law: The Knesset, relating to the denial of the "Jewish and democratic nature of the state" and "support of terror." Adalah represented all of the Arab political leaders and political party lists before the CEC. Extensive materials were prepared and submitted to the CEC, and later to the Supreme Court, challenging the evidence and the constitutionality of the new law. In late 2002, the CEC voted to ban the NDA and MKs Azmi Bishara and Ahmad Tibi (Ta'al) from participating in the elections; the CEC approved the candidacy of MK 'Abd al-Malek Dahamshe, as well as the participation of the United Arab List and the Democratic Front for Peace and Equality - Ta'al list. Adalah filed an appeal to the Supreme Court against the CEC's decision to disqualify the NDA, and arguments regarding the disqualification of MKs Bishara and Tibi.

Result: An 11-justice Supreme Court panel reviewed the disqualifications and heard Adalah's appeal. In 1/03, the Supreme Court overturned the decisions of the CEC, allowing the NDA and MKs Azmi Bishara and Ahmad Tibi to participate in the elections. In 5/03, the Supreme Court delivered its substantive, written decision on all of the elections disqualifications cases. There was widespread local and international media coverage of these cases prior to the elections, including the major threat posed to the political participation rights of Arab citizens of Israel.

(Election Confirmation 11280/02, Central Elections Committee v. Ahmed Tibi;
Election Confirmation 50/03, Central Elections Committee v. Azmi Bishara;
Election Appeal 131/03, Balad - The National Democratic Assembly v. Central Elections Committee)

Fair Representation for Arab Citizens on Municipal Merger Committees. A petition was filed in 5/03 on behalf of the National Committee of Arab Mayors and in Adalah’s own name against the Minister of Interior, demanding fair representation for Arab citizens of Israel on regional hearing committees appointed to consider public responses to the government's proposed municipal merger legislation. Although 23 of 62 (37%) municipal mergers proposed by the government involve Arab municipalities, at the time of the filing of the petition, there was only one Arab member out of a total of 37 members on the committees. Adalah argued that the failure to provide fair representation for Arab citizens violates the principle of equality, and that the committees will not be able to give suitable consideration to issues which impact the unique needs and concerns of Arab towns and villages. In response to the petition, the state declared that it would add four more Arab members to the hearing committees dealing with the proposed mergers of Arab municipalities. In 5/03, Adalah informed the Court that although five Arab members are not a sufficient number to ensure fair representation, pursuant to these new developments, Adalah would withdraw the petition. The Court ordered state to pay NIS 7,500 in legal expenses.

(H.C. 4110/03, Adalah and the National Committee of Arab Mayors v. the Minister of Interior)

(1) Syria Visits Case: MK Bishara and two of his parliamentary assistants were charged under Article 18(d) of the Emergency Regulations (Foreign Travel) – 1948 for organizing a series of visits for elderly Palestinian citizens of Israel to travel to Syria to visit refugee relatives they had not seen since 1948. Adalah represented MK Bishara and his parliamentary aides before a three-judge panel in the Magistrate Court in Natzeret Illit. After oral hearings and the filing of numerous written briefs, in 4/03, the Court unanimously decided to dismiss the indictment against MK Bishara, accepting Adalah’s argument that Article 17(c) of the Emergency Regulations exempts MKs from prosecution for this offense. The case against MK Bishara's two parliamentary aides, Mr. Mousa Diab and Mr. Ashraf Qurtam, is still pending.

In 2/05, the AG's representative informed Adalah that the AG decided that the Supreme Court is the appropriate venue for deciding on this matter. To date no hearing has been scheduled.

H.C. 11225/03, MK Azmi Bishara, et. al. v. The Attorney General, et. al. (case pending).

Contesting Knesset's Decision to Punish MK Issam Makhoul for Political Statements. Petition submitted to Supreme Court in 12/04, on behalf of Member of Knesset (MK) Issam Makhoul (The Democratic Front for Peace and Equality – DFPE), demanding that the Court cancel a Knesset decision of 12/04, which banned MK Makhoul from exercising his right to speak in the Knesset and its committees for ten Knesset sessions. Adalah also demanded an injunction to freeze the implementation of the decision pending a final judgment on the petition. The Knesset's decision was issued after MK Limor Livnat, the Minister of Education, filed a complaint against MK Makhoul to the Knesset's Ethics Committee. MK Livnat accused MK Makhoul of making negative statements against the government of Israel, when he described it as, "a government of death," "a government of blood," and "a 'pork' (immoral) government." MK Makhoul made his statements during a Knesset debate in 6/04 on a strike being undertaken by lifeguards. MK Makhoul criticized MKs who wished to force the strikers back to work. MK Makhoul noted that the number of persons who drown in Israel is increasing, and used the title of the book “The Sea of Death” by Brazilian author George Amado, as a metaphor for the government’s policy toward the lifeguards’ demands. MK Shimon Peres had also described the Israeli government as a "pork government" on the same day but no complaint was submitted against him for this comment. The Ethics Committee decided that MK Makhoul had violated the ethical code for MKs, which stipulates that an MK is duty-bound to respect the Knesset and its members, to behave in a manner fitting for the status of an MK, to work towards strengthening the public's trust in the Knesset, and to convey his/her message with responsibility, integrity and honesty, and imposed its punishment. The Knesset rejected MK Makhoul’s appeal against the Ethics Committee's decision.

Adalah argued in the petition that the Law of Immunity of the Knesset – 1951 applies to political speech and that immunity means that an MK is exempt from any legal action based on political statements made in the course of carrying out his/her work, making the restriction on MK Makhoul's right to speak in the Knesset illegal under Israeli law. Adalah also argued that imposing punishments for political statements could lead to MKs' censoring themselves and limiting their political speech, including that made during the course of carrying out their duties as MKs. The Ethics Committee’s decision might, therefore, become a tool for restricting the immunity of MKs, and particularly Arab MKs, who are members and representatives of the national minority, Adalah warned. Adalah further contended that MK Makhoul did not violate the ethical rules of the Knesset, since his speech was not directed against the Knesset or its members, but against the policy of the executive branch. In addition, the petition contended that MK Makhoul conveyed his message as a responsible leader of a socialist list: one of the main goals of the DFPE party is to protect workers’ rights, including their rights to strike and protest against government policy towards them.

Following a hearing held in 1/05, the Supreme Court dismissed the petition, issuing a written judgment in 9/05. The Court ruled that the Ethics Committee is authorized to take disciplinary measures against MKs for speech voiced in the Knesset, even speech protected by parliamentary immunity. The Court further held that, whilst the Committee’s decision may be considered a “legal action,” it is not the kind of legal action against which parliamentary immunity is intended to protect, as an MK’s immunity, according to the judgment, does not apply to internal procedures of the Knesset. The Court refused to decide on the petitioners’ argument that MK Makhoul did not breach the Knesset’s Ethical Code, stating that judicial review of decisions of the kind made by the Knesset’s Ethics Committee is extremely limited, and the Court tends towards total non-intervention in them.

In Adalah’s view, the Supreme Court’s decision is ambiguous and entails harsh repercussions, particularly for Arab MKs. The political statements of Arab MKs vehemently challenge governmental policy and the prevailing consensus in the Knesset, and on most occasions are harshly contested by the majority of MKs. It is probable that MKs opposed to the viewpoints of Arab MKs for purely political reasons will exploit the Supreme Court’s decision and demand the punishment of Arab MKs for their political statements.

H.C. 12002/04, M.K. Issam Makhoul v. The Knesset (petition dismissed).

Securing Right to Demonstrate for Arab Bedouin in the Naqab (Negev). Petition submitted to Supreme Court in 1/05 on behalf of the chairman of the Regional Council of Unrecognized Villages in the Naqab (RCUV), the coordinator of the Together Forum, and in Adalah's own name, against the Police Commander of the southern region of Israel; the Commander of the Rahat police station; and the Israel Lands Administration (ILA). The petition was filed following attempts by the police to dismantle and evacuate a tent erected in the unrecognized Arab Bedouin village of al-Araqib in 1/05. The tent was set up in protest against the ILA's policy of destroying land and crops cultivated by Arab Bedouin citizens of Israel in al-Araqib and elsewhere in the Naqab through digging up the ground. (See also Adalah's Crop Spraying petition, H.C. 2887/04, Saleem Abu Medeghem, et. al. v. Israel Lands Administration, et. al.) After the tent was erected, and contrary to previous assurances, the police informed the chairman of the RCUV that police permission was required for the tent. An application was duly submitted, but denied based on ILA claims that the protesters were trespassing on state lands. After being approached by the protestors, Adalah contacted the police, who responded by denying permission for the tent and ordering its evacuation and dismantling. Their position was supported by the AG's Office. Adalah then submitted the petition to the Supreme Court, arguing that permission for the tent's erection was not required, and that the police have no right to dismantle it as the residents of al-Araqib enjoy a basic right to demonstrate, which it is especially important to protect as the residents are attempting to prevent their cultivated land from being destroyed.

On 1/02/05, in response to Adalah's petition, the Attorney General agreed to grant permission for the tent and not to order its evacuation and dismantling. The following day, Adalah withdrew the petition and submitted a motion for expenses.

H.C. 971/05,Hussein al-Rafaya, et. al., v. The Southern Chief Commander of the Police, et. al.

Challenging Travel Ban Imposed on Literary Critic and Journalist Antwan Shalhat. Petition submitted to Supreme Court in 1/06, challenging a 12-month travel ban imposed by the Interior Minister in 12/05 on renowned Israeli journalist and literary critic, Antwan Shalhat. Adalah also demanded that the Court order the Interior Minister to use his authority to impose travel bans only when there is a near certainty that a citizen’s travel will harm state security. The petition argued that one’s right to leave the country is a constitutional right, enumerated in Article 6 of Basic Law: Human Dignity and Liberty, and is also protected under Article 12 of the International Convention on Civil and Political Rights (ICCPR), which Israel has ratified. Adalah further contended that the Interior Minister lacks the official authority to impose a travel ban in this case as Mr. Shalhat had no plans to leave Israel. Moreover, the Minister issued the order based on secret evidence without first granting Mr. Shalhat an opportunity to challenge the order, violating his right to due process. The Interior Minister responded to the petition in 2/06, repeating his arguments in favor of the travel ban. On the same day, Adalah submitted a request for an urgent hearing to the Court.

At a hearing in 3/06, Adalah presented its arguments to the Supreme Court and emphasized that the strength of the evidence against Mr. Shalhat is questionable, particularly since he was not summoned for investigation or interrogation by authorities before the travel ban was issued. The Court excluded Adalah from a closed meeting between representatives of the state and the GSS, after which Chief Justice Aharon Barak, apparently submitting to the dictates of the GSS, recommended that the petition be withdrawn. Adalah withdrew the petition in order to avoid a Court decision approving the GSS’s secret materials, a ruling which would cause further harm to Mr. Shalhat. Adalah remarked after the hearing that the GSS’s unrelenting arbitrariness and illegal control over the Arab minority in Israel, which operate in opposition to the truth and the rule of law, is unacceptable.

Update: In 1/07, the Interior Minister extended the ban until 9/07, arguing that the GSS’s information is credible and cannot be revealed to Mr. Shalhat for security reasons.

H.C. 841/06, Antwan Shalhat et. al. v. The Minister of the Interior (petition withdrawn)

Family Unification and Freedom of Movement

Freedom of Movement for Palestinian Citizens of Israel. Petition filed to the Court in 3/00 on behalf of a Palestinian citizen of Israel (a student registered for Masters Degree study at Bir Zeit University) against the IDF Chief Commander of the Central Division challenging the Commander's order barring the petitioner from entering the West Bank for six months. Adalah argued that the order violated the petitioner's right to travel and right for education, as well as his due process right for a hearing and to confront the 'secret evidence' against him. Case dismissed in 04/00. Court refused to intervene in the decisions of the IDF. Prohibition order against the petitioner not renewed by the IDF Commander.

(H.C. 1964/00, Mahmoud Mahameed, et. al. v. Moshe Ya'alon, IDF Chief Commander of the Central Division, unpublished decision)

Six-Month Foreign Travel Ban Imposed on Sheikh Ra'ed Salah is Unconstitutional. Sheikh Ra’ed Salah is the Head of the Islamic Movement in Israel. In 2/02, the Minister of Interior imposed a six-month foreign travel ban on Sheikh Ra’ed Salah pursuant to his powers under the Emergency Regulations (Foreign Travel) (1948). According to the Minister, Sheikh Ra'ed Salah's travel allegedly constituted a threat to state security. In 6/02, Adalah and Al Mezzan Center for Human Rights filed a petition on behalf of Sheikh Ra’ed Salah asking the Supreme Court to declare the Minister’s restriction order unconstitutional and void. The order was based solely on secret evidence, and there was no opportunity to challenge the order or the Minister's claims prior to its issuance. Petitioners' argued that the restriction order violates Sheikh Ra'ed Salah's right to due process, and his rights to freedom of movement and freedom of religion, as it prevented his travel to Qatar as well as his travel to Mecca for al-Umra pilgrimage. The petition also argued that the restriction order is overbroad, unreasonable, and fails to satisfy the proportionality test.

Result: The Supreme Court dismissed the petition in 7/02. The Court ruled that the restriction order is not among the gravest of infringements on liberty or movement, nor is the six-month time period impossible to withstand. The Court state that preventing travel for religious pilgrimage is a grave violation of freedom of religion; however, the Court also held that this pilgrimage could be performed following the expiration of the travel restriction order. The Court also stated that it was convinced, based on secret evidence presented by the General Security Service and the Ministry of Interior, that Sheikh Ra'ed Salah could "gravely endanger" the security of the state if permitted to leave the country. The Court applied the "frank and earnest fear" test, despite the increased importance assigned to an individual's right of freedom of movement by the passage of the Basic Law: Human Dignity and Liberty (1992). The six-month travel restriction ban was renewed repeatedly, until Sheikh Ra’ed Salah was detained in 5/03.

For more information, please see out Special Webreport on the Travel Ban

(H.C. 4706/02, Sheikh Ra'ed Salah, et. al. v. the Minister of Interior, decision delivered on 17 July 2002).

The Supreme Court decision in English translation.

Seeking Cancellation of the Cabinet’s Discriminatory Decision to Prevent Family Unification for Palestinian Spouses of Israeli Citizens. Petition filed in 5/02 on behalf of 57 individuals (14 families) against the Prime Minister, the Interior Minister, and the Director of the Population Bureau, challenging a cabinet decision to prohibit family unification of any non-citizen spouse of an Israeli who is a resident of the Palestinian Authority or of Palestinian origin or descent. Thousands of Arab citizens of Israel, who are the Israeli citizens who marry Palestinians, and their families are affected by this decision. The petition argued that the ethnically-based decision violates the petitioners' rights to dignity, equality and privacy; harms the petitioners’ right to marry and found a family; and contradicts domestic and international human rights law. In 5/02 and 7/02, the Court issued temporary injunctions prohibiting the deportation of 13 Palestinian spouses until the issuance of a final judgment. At the same time, the Supreme Court refused to accept the petitioners as a single group, instructing Adalah to submit separate petitions for each family in 8/02. The Court also issued an order nisi. Adalah submitted the individual petitions as well as two additional petitions on behalf of two families in 3/03.

At a hearing in 7/03, the Court stated that the petitions raise a principle question that is disconnected from the legislative process which began following the submission of the petition, and which had yet to be completed. The state committed to extend some of the petitioners' residency permits. Later in 7/03, the Knesset enacted an amendment to the Nationality Law - 1952, adopting the main principles of the cabinet decision, prohibiting the granting of citizenship or residency status to Palestinians from the 1967 Occupied Territories married to Israeli citizens. The Association for Civil Rights in Israel (ACRI) also filed a petition against the Interior Ministry’s policy and the cabinet’s decision (H.C. 4022/02, Association for Civil Rights in Israel et. al. v. Minister of Interior). In 11/03, the Court ruled that a decision on Adalah's and ACRI's petitions would be postponed until after the delivery of a judgment on a separate petition subsequently submitted by Adalah in 8/03, and still pending, against the “Nationality and Entry into Israel Law (Temporary Order) – 2003” (see Adalah’s petition H.C. 7052/03 below).

In 5/06, following the Supreme Court’s 6-5 decision to uphold the law, Adalah and ACRI filed a joint motion requesting that the Court issue its decision on the petitions pending before it which challenge the cabinet decision. The motion stated that the ruling by a clear majority of the Court that the law is unconstitutional renders the cabinet decision legally void, since the violation of a constitutional right is only permissible with or according to specific authorization in a law. The petitioners argued that a ruling which declared the cabinet decision void would allow Israeli citizens and residents who attempted to apply during the period between the cabinet decision and the enactment of the law, but were prohibited, to enter the graduated naturalization process, which operates for all non-Palestinian spouses of Israeli citizens.

Result: In 1/07 the Supreme Court rejected the petition.

H.C. 4608/02, Awad, et. al., v. The Prime Minister of Israel, et. al. (petition dismissed).

For more information, please see our Special Webreport on the Ban of Family Unification Law

Petition: English | Hebrew

Challenging the Citizenship Law Banning Family Unification. Petition and a motion for injunction submitted in 8/03, challenging the constitutionality of a new law entitled, “Nationality and Entry into Israel Law (Temporary Order) - 2003,” passed on 31/7/03. Similar to the cabinet’s 5/02 decision (see Adalah’s petition H.C. 4608/02 above), the amendment to the Nationality Law - 1952 prohibits granting residency or citizenship status to Palestinians from the 1967 Occupied Palestinian Territories (OPTs) married to Israeli citizens. The law affects thousands of families comprised of tens of thousands of individuals. The petition was filed in Adalah’s own name and on behalf of the El-Sana and Tbilah families; the Chairperson of the High Follow-up Committee for the Arab Citizens in Israel; and all Arab MKs from the Democratic Front for Peace and Equality-Arab Movement for Renewal, the National Democratic Assembly, and the United Arab List political parties.

Adalah argued that the law violates the rights of equality, liberty and privacy, by limiting the ability of Arab citizens of Israel to exercise these rights based on the ethnicity of their spouses. The law violates the principle of due process (owing to its retroactive application), and is discriminatory and racist, as it exclusively targets Palestinians from the OPTs, the general policy for residency and citizenship status in Israel for all other “foreign spouses” remaining unchanged. Moreover, Adalah argued that the security concerns used by the state to justify the law cannot justify such sweeping measures: while the state claims that increasing involvement in terror activity by residents of the OPTs granted status in Israel through family unification justifies the law, of a group of thousands of status-receivers it could name only 23 people suspected of indirect involvement, none of whom was involved in any actual terror activity. Further, as these numbers constitute a minute number of people, the law is completely disproportionate. Adalah requested that the Court cancel the law and instate alternative procedures for granting status in Israel for Palestinian spouses of Israeli citizens. Adalah also asked the law's implementation to be frozen pending a final decision. The Court declined to do so.

In 11/03, the Court issued an order nisi compelling the state to explain why the ban on family unification should not be declared null and void. The Court also issued injunctions preventing the deportation of three Palestinians married to Arab citizens of Israel, pending its final judgment on the seven petitions currently pending before the Court against the law filed by individual petitioners, the Association for Civil Rights in Israel and the Meretz political party (see e.g., H.C. 7102/03, MK Zahava Gal-On, et. al. v. Attorney General, et. al. and H.C. 8099/03, The Association for Civil Rights in Israel v. Minister of Interior, et. al.). The Supreme Court joined all of these cases, for hearing before an enlarged panel of 13 justices.

At a 1/04 hearing, the Attorney General's (AG) Office argued that the law was necessary as Israel had failed to predict potential involvement in terror activity by those requesting family unification, and indicated that only 8% of requests for family unification were rejected on the grounds of security. The state further claimed that the ban on family unification was justified and directed against all Palestinians, as they support the resistance against Israel, and are potential terrorists. Adalah countered that the law and the AG's position that 3 million Palestinians in the OPTs are all potential terrorists is racist and indefensible, and vilifies the entire Palestinian nation. Adalah emphasized the racist character of the law, differentiating it from a discriminatory law and comparing it to apartheid-era laws in South Africa. Adalah also argued that love is beyond the law and ethnicity. Adalah contended that, while the law was legislated as a temporary order for one year, the Court's failure to rule on the issue would constitute a dangerous precedent, sending a message that the Knesset can legislate racist laws as long as they are temporary in nature. Thus, not ruling on the case is a de facto ruling.

In 7/04, the Knesset voted to approve an Israeli cabinet decision to extend the law for an additional 6 months. On the same day, Adalah requested an injunction from the Court to prevent the implementation of the law, pending final ruling on the 8/03 petition. Adalah argued that the extension of the law would further exacerbate the existing infringement on basic constitutional rights, owing to the fact that the longer the infringement goes on, the harsher the damage inflicted, since the forced separation of families becomes harder to bear the longer it continues. Adalah also contended that families have already de facto been damaged by forced separation prior to the law's passage, as a result of the previous cabinet decision of 5/02: some families have even been affected since 3/02, by an earlier Interior Minister decision. Further, extending the law contradicts what the AG has previously stated in response to the petition. Adalah also contended that the government and parliament did not present any information to justify the law's extension. Finally, Adalah argued that extending the law will cause severe and irreversible damage and suffering to families. In contrast, no damage will be sustained by the respondents if the Court temporarily suspends the law, as the "graduated" process of granting status in Israel is still in effect for non-Israeli spouses. This process allows the Interior Minister to reject applications for family unification on an individual basis for various reasons, including security concerns. In 7/04, Adalah submitted a further motion asking for a judgment on the petition, and for the delivery of a final order from the Court declaring the law void.

In 8/04, the Attorney General stated that the government may seek to amend the law once again in 2/05, through widening the exceptions to the ban on family unification as stipulated under the law. Based on the Attorney General's representations, the Supreme Court ruled that it would wait to see the new amendments before deciding on Adalah's petition, as well as six additional petitions filed against the law to the Court. In response to the Court's decision Adalah stated that it violates the constitutional right to access to the courts, and may constitute a very dangerous precedent, according to which the Knesset will be able to legislate any racist law by merely stating that it is temporary in nature, in order to avoid the Court making decisions on the law's validity.

In 1/05, Adalah sent a letter to the newly-appointed Interior Minister requesting his immediate intervention to terminate a process initiated in 12/04 by the Interior Ministry to amend and re-extend the law through the drafting of a proposed bill. Adalah argued that the proposed amendments stand to impose even more stringent conditions on Palestinians from the OPTs wishing to obtain status in Israel through family unification, and add to the grave constitutional defects within the law. On the following day, the Interior Minister announced the suspension of the all legal procedures connected with the proposed amendments in order to examine them thoroughly.

On 31/1/05, despite the Attorney General's representations that the government would seek to amend the law before attempting to renew it when it expired in 2/05 - which were the basis for the Supreme Court's decision to delay deciding on the petitions challenging the law pending before it - the law was extended by the Knesset for a further four months without amendment.

In 5/05, the government approved a draft bill to extend the validity of the bill further, with some amendments related to age and gender restrictions. The Knesset did not vote on the draft bill, but, in the same month, decided to extend the law without amendment until 31/08/05.

In 7/05, the Knesset extended the validity of the law until 31/03/06, although it is defined as a "temporary order," and introduced new amendments to it. In 7/05, Adalah filed a motion to the Court demanding an order to suspend the implementation of the law and that the Court rule on the petition. As Adalah argued, the new amendments allow family unification between residents of the OPTs and citizens of Israel in very limited circumstances, and include new age and gender-related stipulations which impose a sweeping ban on applications from all Palestinian men under 35 years of age, and all Palestinian women under 25 years of age. Further, while individuals who do meet these criteria can now apply for a permit to stay in Israel, they are only eligible for a temporary permit at most, and cannot qualify for work permits, social benefits, etc. A further amendment provides that no status will be granted to Palestinians who are related to individuals whom security officials suggest might constitute a threat to the state of Israel.

In 12/05, the Association for Civil Rights in Israel (ACRI) and Adalah submitted joint concluding arguments to the Supreme Court of Israel on petitions demanding the cancellation of the racist amendment to the law. The organizations argued that, contrary to the state's representations, the law and its subsequent amendments lack any substantive factual basis. The organizations emphasized in the concluding arguments that the new amendments do not change the racist nature of this legislation, which applies only to Palestinian spouses and is based on their national origin. Therefore, Adalah and ACRI argued that the main challenge to this legislation - that the law is unconstitutional as it discriminates on the basis of national origin - remains pending for deliberation by the Supreme Court.

Result: In 5/06, a 6-5 majority of the Supreme Court rejected the petition and the six other petitions joined to it in a 263-page decision. As a result of the Court’s decision, thousands of Arab Palestinian families will be prevented from living together on the basis of their national belonging. Six out of the eleven Justices ruled against the petitions. Six of the Justices, however, accepted the petitioners’ argument that the law disproportionately violates the constitutional rights to a family life and equality, with one of these refusing to order the remedy of the cancellation of the law. Justice Heshin, who voted to dismiss the petitions, stated that, “The right to human dignity does not include any constitutional obligation on the state to allow “foreigners” married to Israeli citizens to enter the state.” Chief Justice Aharon Barak, who voted in favor of the petitions, stated that, “The issue concerns the right of Israeli citizens of the state to family life and equality, which derive from the constitutional right to human dignity, as espoused in the Basic Law [Human Dignity and Liberty]… this violation of rights is directed against Arab citizens of Israel. As a result, therefore, the law is a violation of the right of Arab citizens in Israel to equality.”

In its response to the decision, Adalah argued that, with its decision, the Supreme Court approved the most racist legislation in the State of Israel. Adalah emphasized that in 1980, during Apartheid, a Court in South Africa refused to approve orders similar to the Nationality and Entry into Israel Law, on the ground that they contradicted the right to a family.

Update: In 1/07, Adalah also submitted a position paper to the AG, Justice Minister and the Chair of the Knesset’s Interior Committee, setting forth its legal arguments against a proposed two-year extension of the law, as well as its expansion to ban unification of spouses from so-called “enemy states”. Adalah argued that the essence of the new proposed legislation is to deny the right to family life on a national/ethnic basis. The Knesset did not pass the proposed law in 1/07, but rather extended the existing law for an additional three months, and Adalah petitioned the Supreme Court (See H.C. 830/07) demanding the cancellation of the extension. In 3/07, the Knesset passed the new law which maintains the ban on family unification where one spouse is a Palestinian from the OPT and adds the more stringent denial of family unification where one spouse is a resident or citizen of Lebanon, Syria, Iran or Iraq – states all defined by Israeli law as “enemy states” – and/or is an individual defined by the Israeli security forces as residing in an area where activity is occurring that is liable to endanger Israeli security. At a hearing held before the Supreme Court in 3/07, the Supreme Court decided that Adalah can file an amended version of the petition against the new law.

H.C. 7052/03, Adalah, et. al., v. Minister of Interior, et. al. (petition dismissed).

For more information, please see our Special Webreport on the Ban of Family Unification Law

Challenging Military Order Forcing Israeli Citizens Visiting the Gaza Strip to Remain There for Three Months. Petition filed in 5/04 by Adalah and HaMoked Center for the Defence of the Individual seeking the cancellation of an order conditioning the issue and extension of entry permits into the Gaza Strip for citizens and/or residents of Israel on their commitment to remain in Gaza for three consecutive months. The order was issued by the Southern Command with the intention of limiting the use of the Erez checkpoint. The petition was filed on behalf of four families affected by the order, against IDF Major General, Southern Command.

Some Arab residents and citizens of Israel have close family ties to residents of the Gaza Strip. However, since 1994 entry into Gaza has required obtaining a special permit issued by the Southern Command, which has consistently restricted the entry of Israeli citizens and residents into the Strip. Furthermore, the criteria for receiving the permit, which have never been published, have been repeatedly tightened since 1994. The policy of the Southern Command concerning the entry of Israeli residents and citizens into Gaza has meant that entry permits have been granted only in extremely limited circumstances, namely for visiting an immediate family member in a critical medical condition, verified by medical documentation, and for attending the funeral or wedding of an immediate family member.

However, there has been one exception to this policy: that entry into the Gaza Strip for Israeli residents and citizens who fall within the category of a 'split family' (where spouse or children of a citizen or resident of Israel reside in Gaza) was not limited, thereby allowing such families to maintain a family life. The procedure administrating their passage from Israel to the Gaza Strip, named the ‘split families procedure,’ has been continuously in force, apart from short periods of suspension. Since 4/04, however, with the exception of two days in 5/04, the ‘split families procedure’ has been canceled, with severe repercussions for the lives of these families. During these two days, the entry of citizens and residents of Israel into Gaza was conditioned upon their signing a document stating their agreement not to leave the Gaza Strip and re-enter Israel for three consecutive months. Extending the permits of Israeli citizens and residents currently in the Gaza Strip was conditioned upon the obligation to remain there for three consecutive months.

The petitioners argued that the order specifically affects and targets Arab citizens and residents of Israel, since it is overwhelmingly they who marry Palestinian residents of the Gaza Strip. Since the order does not affect Israeli citizens and residents requesting to enter the Gaza Strip to visit settlers, the new order constitutes discrimination on the basis of national belonging. Furthermore, the new order blatantly discriminates against Arab citizens and residents of Israel who are married to, or are parents of, Gaza residents, thereby violating their constitutional rights to family life, dignity, equality and privacy, and breaching their constitutional right to enter Israel. As such, the objective of this order is inappropriate, and unacceptably broad and sweeping.

At a 7/04 hearing, the Israeli Military Southern Command declared the freezing of the order. The Israeli Military representative also stated that all permit requests will be reviewed on an individual basis, and the actual necessity for the order will be reviewed. Although the Court did not rule on the legality of the order, it declared that the petitioners may return to the Court should the Southern Command decide to renew the order.

H.C. 5076/04, Z. Housaini et. al., v. IDF Major General, Southern Command.

Demanding Cancellation of Extension of Nationality and Entry into Israel Law as it Contradicts the Court’s Prior Decision. Petition filed in 1/07 demanding the cancellation of the extension of the Nationality and Entry into Israel Law (Temporary Order) – 2003 for a period of three months ending on 15.4.07. The law denies Palestinian citizens of Israel the right to acquire any status in Israel for their Palestinian spouses from the OPT solely on the basis of their national belonging. Adalah argued that the extension of the law for three additional months contradicts the decision of the majority of justices of the Supreme Court in H.C. 7052/03, delivered on 14.5.06 (see above). Although the Supreme Court dismissed the petition, a majority of the justices decided that the law in its current form violates the constitutional right to family life and discriminates against Arab citizens of Israel by preventing them from living in Israel with their families from the OPT. Therefore, the Court ruled that the law disproportionately violates the principle of equality. In addition, a majority of justices recommended that the state amend the law to make it rely essentially on individual checks. Therefore the extension of the law’s validity is a clear infringement of the Court’s decision, and a grave breach of the principles of the rule of law and the separation of powers. Adalah emphasized that this is the fifth extension of the law since the issuance of a governmental decision in May 2002 (see H.C. 4608/02 above), the basic elements of which were enacted into law in 7/03.

Update: In 3/07, the Knesset passed the new law which maintains the ban on family unification where one spouse is a Palestinian from the OPT and adds the more stringent denial of family unification where one spouse is a resident or citizen of Lebanon, Syria, Iran or Iraq – states all defined by Israeli law as “enemy states” – and/or is an individual defined by the Israeli security forces as residing in an area where activity is occurring that is liable to endanger Israeli security. At a hearing held before the Supreme Court in 3/07, the Supreme Court decided that Adalah can file an amended version of the petition against the new law.

H.C. 830/07, Tabeli et al. v. The Minister of the Interior, et al. (case pending)

The Commission of Inquiry into the October 2000 Protest Demonstrations

Access for Families of Deceased to Autopsy Reports. Petition filed in 2/01 with Physicians for Human Rights-Israel (PHR-I), on behalf of the families of four Palestinian citizens of Israel killed in October 2000 by Israeli police against the Forensic Institute in Tel Aviv and Mahash (the Ministry of Justice Police Investigation Unit). Although the families had requested copies of the autopsy reports for four months, both the Forensic Institute and Mahash refused to provide them with the documents. Adalah and PHR-I argued that the refusal to give the families copies of the reports is illegal and a breach of their fundamental rights protected by the Basic Law: Human Dignity and Liberty. There is no law prohibiting disclosure of autopsy reports to family members. Furthermore, the petitioners argued that the refusal is against the public interest and the right to know the facts and circumstances of these suspicious killings.

Result: Petition withdrawn in 3/01, when family members gained access to these reports from the official Commission of Inquiry.

(H.C. 1274/01, Ahmad Mohammad Jabareen, et. al. v. National Institute of Forensic Medicine, et. al.)

Removing Northern District Police Commander Alik Ron from his Post. A petition was filed in 3/01 on behalf of the High Follow-Up Committee for Arab Citizens in Israel and 35 mayors of Arab towns and villages against the Minister of Internal Security, the Chief of Police, and the Police Commander of the Northern District, Alik Ron. The petition demanded Ron's permanent removal and/or suspension from his post. The petitioners' also requested an injunction suspending Ron from his command of the police forces during Land Day (30 March 2001) for fear that the October 2000 events could be repeated. Adalah provided abundant evidence of Ron's abuses of power and racist remarks against the Palestinian minority in Israel since 1998 to the Court. The Court rejected Adalah's request for an injunction. Ron subsequently went on study leave from his position, and Adalah withdrew the petition on 14 January 2002. In 2/02, Ron received a letter of warning from the official Commission of Inquiry. In 5/03, Ron retired from the police. The Or Commission in its final report issued in 9/03 recommended that in the future, Ron should not hold any command or administration position in the area of internal security.

(H.C. 2431/01, Mohammad Zidan, Chairperson of the High Follow-Up Committee for Arab Citizens in Israel, et. al. v. The Minister of Internal Security, et. al., petition withdrawn).

Blocking the Promotion of and Suspending Border Police Commander Benzy Sau. Petition filed in 4/01 on behalf of the Committee of the Martyrs' Families against Uzi Landau, the Minister of Internal Security and Shlomo Aharonishky, the Chief of Police, asking to freeze the promotion and suspend Border Police Commander Benzy Sau until the official Commission of Inquiry publishes its final conclusions. Based on his testimony before the Commission, the petitioners argued that Sau lacked even basic knowledge of the police open fire regulations, and that Sau violated the open fire regulations by using "snipers" to shoot at Arab citizen demonstrators in Umm al-Fahem. The petitioners also argued that Sau's testimony before the Commission was clearly contradicted by the testimonies of police under his command in a way that undermines his credibility.

Result: In 5/01, the Court dismissed the petition, summarily ruling that it would not intervene in the respondents' decision. In 2/02, Sau received a letter of warning from the official Commission of Inquiry.

(H.C. 3286/01, The Committee of the Victims' Families (October 2000) v. The Minister of Internal Security, et. al., decision delivered 31 May 2001)

Demanding that the Commission Hold Open Hearings During Testimonies of GSS Witnesses. A motion was filed to the Commission in 1/02 followed by petition submitted to the Supreme Court in 2/02. The petition asked the Court to overturn the Commission’s decision to hold in camera hearings during testimonies of GSS witnesses. Adalah argued that closing the hearings violates the rights of the victims' families as well as the public’s right to know. Adalah further argued that as the Commission is investigating the behavior of security and intelligence officers, which greatly damaged the public’s trust in state authorities, it is of fundamental importance that the Commission hold open hearings to fully disclose the testimony of GSS witnesses. Adalah emphasized that the findings of the Landau Commission (1987) as well as the State Comptroller’s Report (2000) both indicate that the GSS has a history of giving false testimonies and obscuring the truth of events in which they played a role. Moreover, according to the testimony of other intelligence officers, the GSS had direct and primary involvement with the Arab minority in Israel before and during the October 2000 demonstrations. Petition dismissed. The Court affirmed the Commission's decision to hold in camera hearings and to consider releasing portions of the GSS testimony at a later date, reasoning that this decision strikes a reasonable balance between the interests of state security and the public's right to know. The Commission held closed-door hearings to receive GSS testimonies and other GSS evidence on 31 January 2002 and 6 February 2002.

(H.C. 950/02, The Committee of the Victims’ Families (October 2000) v. The Commission of Inquiry, decision delivered 4 February 2002).

Request to Cancel Commission’s Letters of Warning Against Arab Public Representatives. A motion was filed to the Commission in 3/02 followed by a petition to the Supreme Court in 7/02. The motion and petition were filed on behalf of MK ‘Abd al-Malek Dahamshe, MK Azmi Bishara, Sheik Ra'ed Salah, the High Follow-up Committee for Arab Citizens in Israel, and the Committee of the Bereaved Families, seeking the cancellation of warnings against the Arab leaders on the grounds that they are discriminatory, illegal, and constituted a breach of power by the Commission. Adalah argued that the Commission exceeded the scope of its mandate, which is restricted by law to executive branch officials; investigated the issue of incitement in a discriminatory manner - questioning only Arab public representatives as to these matters and no Israeli Jewish rioters or Ariel Sharon about his provocative visit to al-Aqsa compound; lacked authority to ask many questions of the three Arab leaders regarding their political positions and posed such inquiries only to them; and relied on undisclosed and biased GSS and police intelligence materials as a basis for the warnings against the Arab elected representatives, whereas no such information was provided and/or requested by the Commission concerning any Jewish figures.

Result: The petition was dismissed. The Supreme Court, in a 1 ½ page decision, held that: the petition was submitted too late; that it should have been filed against the government and not the Commission, as it challenged the government-issued mandate; and that the Commission would guarantee that the warnings were based solely on disclosed materials. In its judgment, the Court failed to address several of the arguments raised by Adalah in the petition, namely that: the Commission has the power to request a change in mandate and that although Adalah asked the Commission to exercise this power, it chose not to do so without explanation; that the mandate was implemented in a discriminatory way; that the Commission itself issued several contradictory decisions regarding its use of undisclosed materials; and that the Commission will certainly be influenced by disclosed and undisclosed materials in the course of its investigation.

(H.C. 6342/02, MK ‘Abd al-Malek Dahamshe, et. al. v. The Commission of Inquiry, decision delivered 4 August 2002).

Challenging Promotion of Benzi Sau to Senior Position in Ministry of Public Security. In 6/06, Adalah submitted a petition to the Supreme Court on behalf of the Committee of the Victims’ Families of October 2000 and in its own name against Benzi Sau and the Public Security Minister Avi Dichter, formally the head of the General Security Services. The petition demanded the cancellation of the appointment of Sau as the Head of the Minister’s Operational Staff Unit in the Ministry of Public Security. Sau was one of the senior police commanders who brutally responded to protest demonstrations mounted by Arab citizens of Israel in October 2000, which resulted in the deaths of 13 Palestinian citizens of Israel and injury and detention of hundreds more. In 10/00, Sau was among those commanding police units, including snipers, that opened fire on protestors in and around the Arab town of Umm al-Fahem, which resulted in the deaths of three individuals and injury of several others.

In 9/03, the Or Commission, established by the government to look into the events of October 2000, recommended that Sau not be promoted for a period of four years. The new appointment, then, is illegitimate, constituting a clear promotion for Sau from his position as a border police commander. In his new position, for example, Sau is authorized set the work schedule of the Minister of Public Security; make recommendations to the Minister regarding the possible work and priorities of the police; participate in high-level government meetings at which all security matters in Israel are discussed; and override the opinion of even the Police Chief in his recommendations on the priorities of the police force’s work and the best means of achieving them. In addition, the appointment of Sau is illegal as it runs contrary to the law, in particular several Supreme Court decisions issued in similar contexts. Therefore, if the authorities are to maintain a minimum level of public trust, in particular with Arab minority, the promotion of Sau must be cancelled, Adalah argued.

Result: In 10/06, the Supreme Court issued a landmark decision that the promotion of Benzi Sau by the Minister of Public Security should be cancelled as it contradicts the conclusions of the Or Commission. The Court ordered Sau to resign from his current position as Head of the Minister of Public Security’s Operational Staff Unit within one month. The Court also ruled that it has the power of judicial review over the lack of implementation by the government of recommendations made by the Or Commission against specific individuals.

H.C. 4585/06, The Families, et. al., v. Avi Dichter, et. al. (petition accepted)

Criminal Cases

Unjust and Unduly Severe Sentence for Bereaved Father. In 3/01, at one of the opening hearings of the Or Commission of Inquiry (appointed by the government to investigate the causes and results of the October 2000 protest demonstrations, which included the killing of 13 Arab citizens of Israel by the police), Mr. Abdel Menem Abu Saleh struck Police Sergeant Guy Raif after hearing surprise evidence that the latter had been involved in the killing of his son, Walid Abdel Menem Abu Saleh. Mr. Abu Saleh was subsequently indicted for assault. In 11/01, Adalah submitted a motion to the AG requesting the dismissal of the indictment, arguing that Mr. Abu Saleh attacked Sgt. Raif on impulse, without premeditation; that the case was exceptional, in that Mr. Abu Saleh had not been warned that evidence would be presented suggesting that Sgt. Raif had fired live rounds at his son; and that it was grievously unjust that there had been no criminal investigation into Sgt. Raif’s conduct during the events of October 2000, while the father of one of the victims in those events was indicted. The AG rejected the motion. Adalah represented Mr. Abu Saleh at trial and he was convicted in 5/02. In 7/02, he was sentenced to two months of community service. The state appealed the sentence to the District Court in 12/02, seeking a six-month community service term. The District Court granted the state’s appeal.

Result: In 1/03, Adalah filed a motion to the Supreme Court for permission to appeal against the District Court’s erroneous decision to increase Mr. Abu Saleh’s sentence. One of the main legal arguments raised by Adalah was that despite the fact that an appeal by the state had already been heard in the case, Mr. Abu Saleh had not yet exercised his right of appeal, and thus, the Supreme Court should hear it. This fundamental due process right of appeal, Adalah argued, is also a “constitutional right,” and follows from the Basic Law: Human Dignity and Liberty (1992), as well as Supreme Court precedent. The Supreme Court rejected the motion. In its decision, issued in 1/03, the Court did not address the issue of Mr. Abu Saleh’s constitutional right of appeal and ignored the special circumstances of the case, contending that he had been given an adequate opportunity to present his arguments at hearings before the lower courts.

(Criminal Appeal Permission 968/03, Abdel Menem Abu Saleh v. the State of Israel, unpublished decision.)

Challenging Attorney General's Failure to Indict Police Who Shot and Killed 17-Year-Old Mahmoud Sadi. Petition submitted to Supreme Court in 12/04, demanding that the Court order the AG to file a criminal indictment against two Israeli police officers who shot and killed Mahmoud Sadi, a Palestinian citizen of Israel from Led (Lod). The petition was submitted after the State Attorney’s Office rejected an appeal filed by Adalah in 4/04 against the decision of the Ministry of Justice Police Investigation Unit (“Mahash”) to close the investigatory file against the two police officers - Yogev Kogon and Efi Tshuva - in 9/04. Like Mahash, the State Attorney’s Office claimed that the evidence failed to indicate that the police officers committed any crime. Mr. Sadi was shot and killed in 12/03 in the town of Ramle. At the time of his death, Mr. Sadi’s car, containing Mr. Sadi and two other passengers, was stopped at a red traffic light. Two police cars surrounded the car, from which police officers then came out and shot no less than fifteen bullets in the direction of Mr. Sadi and his car. The police initially falsely alleged in public announcements that Mr. Sadi was one of the area's biggest drug dealers, and that he had pointed a gun at one of them from his car.

However, according to the officers' testimonies, only one police officer, Officer Tshuva, who shot Mr. Sadi in the chest, said that Mr. Sadi was pointing a gun or that anyone else in the car had a gun; in fact, Officer Kogon, who shot the fatal bullet which hit the back of Mr. Sadi's head told Mahash that there was “no” gun. In addition, the fingerprint report of the alleged gun held by Mr. Sadi did not have his fingerprints on it, and the autopsy report does not mention any gun residue on his hands. Further, an independent eyewitness to the events supports all of the evidence that Mr. Sadi did not pose any danger to the police. Based on a thorough review of the state’s evidence, Adalah argued in the petition that Mr. Sadi was killed by the police without posing any danger to them, and that their use of deadly force against him constitutes manslaughter, causing death by negligence, and causing harm with aggravating intent. Thus, based on all the facts, none of which are disputed by the parties, Adalah argued that the decision not to indict the police officers is an error of law and must be overturned by the Court. Adalah further emphasized that the decision legitimizes the dangerous use of force by the police against citizens in general, and demonstrates an almost total disregard for the right to life of Palestinian citizens of the state.

Result: In 09/05, the Supreme Court supported the respondent’s position and requested that Adalah withdraw its petition. The Court’s decision did not take into account the testimonial and physical evidence which supported Adalah’s position that Mr. Sadi did not pose an immediate threat to the police officers at the scene of the crime.

H.C. 12000/04, Labiba Sadi and Adalah v. The Attorney General (petition withdrawn).

Demanding the Release of Summary Report into the Israeli Military's Killing of 31-year-old Meteb al-Nebari to his Family. Petition filed to Supreme Court in 3/05, seeking an order requiring the Israeli military to release a summary of the operational military report on the death of Mr. Meteb al-Nebari, a Palestinian Bedouin citizen of Israel killed by the Israeli army in the West Bank in 10/03, almost 18 months after his death. The petition was filed against the IDF Chief of Staff, the Judge Advocate General, and the Chief Military Prosecutor. The military did not launch any investigation following the death, only doing so eight months later after Adalah submitted a motion to the Beer el-Sabe Magistrate Court in 10/03 requesting the appointment of an investigatory judge to examine the circumstances of Mr. al-Nebari's death (Cause of Death Investigation 1027/03, In Re Meteb al-Nebari, deceased). Adalah stressed that severe injuries to his body, including serious damage to several of his internal organs from being shot, and wounds to his arm, skull and back, confirmed by an autopsy, strongly indicate that his death was unnatural and/or caused by an offense committed against him. The petitioners unsuccessfully requested the report, when the respondents refused to provide it on the ground that there is an ongoing military investigation into the case. Adalah argued in the petition that the military has a legal duty to release the report to the al-Nebari family - who are still yet to receive any information regarding the circumstances of his killing - regardless of the ongoing investigation. Adalah stressed that the respondents did not raise national security concerns for their refusal to release the report in 8/04, the only legal exception to the release of the report under the Military Justice Law – 1955. Adalah also argued that the bereaved family has a basic right to know the military's findings, especially as the military has a connection to the death. Adalah contended that it is essential for the victim's family to receive this report without delay, in order that they can probe the credibility and reliability of the military's investigation.

Responding to the petition in 3/05, the AG's representative raised two main claims: when a military investigation is ongoing the release of the summary operational report is a matter of discretion for the Chief of Staff; and the petitioners should await the Military Prosecutor's decision. At a hearing before the Supreme Court later in 3/05, Chief Justice Barak asked the petitioners to wait for the Military Prosecutor's decision. Adalah responded that, at the very least, a timetable for the release of information was necessary. The Court ruled that the Military Prosecutor must inform the Court within 30 days of decisions made regarding the military's investigation into the case.

H.C. 2366/05, Atwa al-Nebari and Adalah v. IDF Chief of Staff, et. al. (case pending).

Challenging Chief Military Prosecutor’s Decision not to Indict Israeli Soldiers Responsible for Killing of Mr. Meteb al-Nebari. Petition filed in 12/06, requesting that the Court order the Chief Military Prosecutor to initiate criminal proceedings against the soldiers responsible for killing Mr. Meteb al-Nebari. On 10/03 a unit of Israeli army soldiers opened fire near the Jewish settlement of Negohot in the West Bank (Hebron Region), killing Mr. al-Nebari, a 31-year-old Palestinian Bedouin citizen of Israel from Tel el-Sabe (Tel Sheva). Mr. al-Nebari was unarmed and did not constitute any threat to the soldiers, and, according to the General Security Services (GSS), had no record of prior security offenses. The report of an autopsy conducted close to the time of his death stated that the lethal shooting was sustained to his back, revealing multiple injuries to the back of his body. The military police launched an investigation in 7/04 which was concluded in 4/05, with the Chief Military Prosecutor deciding not to indict any of the soldiers responsible.

The soldier who opened fired at Mr. al-Nebari stated in a testimony to the military police that he opened fire after he “saw the white in the eyes” of the deceased. The Chief Military Prosecutor accepted the soldier’s account, despite the established fact that he was shot from behind. Moreover, according to the soldiers present at the scene, Mr. al-Nebari did not move forwards toward them, and never posed any clear and immediate threat to them to warrant lethal shooting. Further, according to the report of the military police, based on the evidence gathered the Chief Commander of the Central Division of the Israeli military harshly criticized the conduct of the soldiers who opened fire and killed Mr. al-Nebari, and stated that the shooting was not carried out in accordance with military regulations. In light of these conclusions and other relevant facts Adalah argued that the decision of the Chief Military Prosecutor not to initiate any proceedings, either criminal or disciplinary, against any of the soldiers responsible for the killing is incompatible with basic legal principles governing prosecutorial discretion and thus void. For more information, see: Cause of Death Investigation 1027/03, In Re. Meteb al-Nebari, deceased, and H.C. 2366/05, Atwa al-Nebari and Adalah v. IDF Chief of Staff, et al. (above).

H.C. 10682/06, Ayman Atrash v. The Chief Military Prosecutor (case pending)

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