After four months in detention, Israeli Supreme Court released Palestinian attorney charged with speech-related offenses during anti-war demonstration in Umm al-Fahem, to house arrest
On 30 January 2024, a well-known Palestinian human rights lawyer, a citizen of Israel, was released from 110 days of detention and placed under house arrest for organizing a peaceful protest against Israel’s war on Gaza. The Supreme Court overturned the Haifa District Court's decision to detain Attorney Khalifa until the conclusion of all proceedings.
On 19 October 2023, Attorney Khalifa, along with 10 other protesters, including four minors, was arrested during a demonstration in Umm al-Fahm against the war. The police forcefully dispersed the protest, with reports indicating the police's use of rubber bullets and stun grenades. The courts released all detainees within three days, except for Attorney Khalifa and Mr. Mohammad Abu El Taher Jabareen, a 31-year-old activist and social worker.
The state prosecutor indicted Khalifa and Jabareen on 6 November 2023, for "incitement to terrorism" and "identifying with a terrorist organization" under Article 24 of Israel’s 2016 Counter-Terrorism Law. The charges are solely based on their participation in the protest and the slogans they chanted, which are commonly voiced during demonstrations by Palestinian citizens of Israel for several decades.
Since the state indicted Khalifa and Jabareen under the Counter-Terrorism Law, they were placed in the security wings of Israeli detention facilities that almost exclusively hold Palestinians from the Occupied Palestinian Territory (OPT) and in extremely dire conditions. Since the start of the war, the already poor conditions have deteriorated alarmingly, including severe overcrowding, denial of family visits, prolonged delays for lawyer visits, and inadequate food and access to hygiene items. Khalifa also reported being verbally abused and witnessed other prisoners being physically abused by the guards.
In accordance with the prosecution's general policy in place after 7 October 2023 for those charged with speech-related offenses under the Counter-Terrorism Law, the state requested an order to detain both Khalifa and Jabareen until the conclusion of proceedings. On 11 January 2024, the Haifa Magistrate's Court decided that Khalifa is to be held in house arrest, rejecting the prosecution’s request. In its decision, the Court highlighted that, up until this point, Attorney Khalifa had been a “social activist, in the positive sense of the term, in his city, involved in efforts to reduce violence in Arab society, working with youth, and had not been involved in any criminal events”. The prosecution appealed to the district court. On 15 January 2024, the Haifa District Court accepted the appeal, finding that Khalifa’s participation in the protest and the slogans chanted during the demonstration amounted to a violation of the law and attributed ideological motives to his actions. The court additionally decided that it is necessary to assess his level of dangerousness in light of the current security situation in the country, thus determining that ongoing detention in prison was warranted until the conclusion of proceedings.
On 25 January 2024, Khalifa's legal team – Adalah’s General Director, Dr. Hassan Jabareen, Adalah Attorney Myssana Morany, and Attorney Afnan Khalifa on behalf of the Human Rights Defenders Fund (HRDF) – filed a motion for permission to appeal to the Supreme Court from the District Court’s decision.
CLICK HERE to read the request (Hebrew)
In the motion, the legal team argued that the district court's decision relies on irrelevant considerations, which are not pertinent to Khalifa. The court further erred, Adalah and the HRDF contended, in ascribing ideological motivations to Khalifa's actions, while he consistently maintained that the slogans fall under the freedom of expression, not criminal incitement, as he fought for his innocence. The motion asserted that these errors necessitated a review by the Supreme Court.
CLICK HERE to read the decision (Hebrew)
In his decision, Supreme Court Justice Ofer Grosskopf affirmed that despite the perceived danger arising from suspicions of incitement, especially during wartime, it is necessary to examine Khalifa’s level of danger in light of his claim that his expressions are protected by freedom of speech. Importantly, in examining whether continued detention is justified and if Khalifa is likely to comply with house arrest restrictions, the court considered not only the alleged offense but also Khalifa's individual circumstances (including his profession as a lawyer, clean criminal record, and his social contributions to his community). This contrasts with the district court, which solely factored in the overall security situation of the war and the nature of the alleged offense. Finding no justification to continue to detain him, Justice Grosskopf overturned the District Court's decision and ordered Khalifa's release, in accordance with the alternative conditions set by the Magistrate's Court.
These cases are part of a severe and unprecedented crackdown on the freedom of expression rights of Palestinian citizens of Israel and Palestinian residents of East Jerusalem. Since the beginning of the war, the state has filed over 100 indictments against Palestinians for expression-related offenses under the Counter-Terror Law. All of the cases, except for Khalifa and Jabareen, involve expressions made on social media. Additionally, a recent report to the Knesset's Constitution, Law, and Justice Committee on 5 February 2024 notes that 394 investigations based on allegations of incitement to terror have been initiated since 7 October 2023. This number represents a significant increase compared to the period between 2018 and 2022 when the State Attorney’s office approved only 78 investigations of this nature over five years. In an earlier report to the Knesset committee, the State Attorney's office affirmed its policy, effective since October 7, to pursue criminal charges and seek the arrest of detainees until the conclusion of legal proceedings. This applies even to a single social media post, provided it is considered "serious" and directly linked to the present period.
Adalah commented:
“The arrests, along with the severe and prolonged detention of protesters and the issuance of serious criminal indictments under the Counter-Terrorism Law, not only violate the rights of Khalifa and Jabareen but also pose a significant threat to the exercise of free speech and peaceful assembly for all Palestinians in Israel. The authorities aim to create a chilling effect on speech on the broader Palestinian population in Israel. The requests for detention until the conclusion of legal proceedings, submitted in numerous cases, are designed to act as a deterrent and constitute a harsh form of punishment for individuals who, until the resolution of their cases, enjoy the presumption of innocence.”
