Statement from the EMHRN observer to the trial of Azmi Bishara on 27 February.

Azmi Bishara had his immunity lifted and was charged with 'supporting a terrorist organisation' on the basis of speeches he made in Syria and in the north of Israel (Umm Fahem), 11.3.2002

Report concerning the initial hearing in the case against Knesset member Azmi Bishara (Balad) in the magistrate court of Nazareth on the 27th February 2002.

The report is based on

1) A two-hour interview with Knesset member Hashem Mahameed in Um El-Fahm on February 26.

2) Conversations with Azmi Bishara and his lawyers in Nazareth on February 26.

3) Presence at a four-hour meeting on tactics with about 120 Arab lawyers in the evening of February 26.

4) Attendance (with simultaneous interpreting) at the hearing on February 27, 10am – 5pm.

5) Subsequent conversations with Bishara and his lawyers.

We tried to set up meetings with various Knesset members who had voted for the lifting of Azmi Bishara’s parliamentary immunity as well as with a representative of the Prosecution and a spokesman from the Ministry of Justice. Despite active assistance from among others the correspondent of Politiken and Danish Radio, Hanne Foighel, these attempts failed.

THE CHARGE

In these speeches Bishara gives a brief analysis of his view on the development in the Middle East since the Six-Day War in 1967. It was especially his view on the withdrawal of the Israeli troops from South Lebanon in May 2000 which angered his opponents:
Bishara disputes the official explanation of the withdrawal as a way to meet the UN resolutions. Instead he argues that the resistance against the occupation had gradually created such a strong support within Israel for the withdrawal of the troops that the government had to comply. He warns – on the basis of the last many years of experience – against choosing one of the two ways that the Israeli government try to impose upon the Arabs, that is, either total war or submission under the dictates of Israel. Instead a “third way” should be chosen: Resistance.
In the speech in Um El-Fahm, which is held only a few weeks after the withdrawal of the Israeli troops in South Lebanon, he
is more concrete. Here he explicitly calls attention to Hezbollah’s resistanc, and he says that Hezbollah has the right to be proud of its victory over Israel in South LebanonAzmi Bishara is charged with support of terrorism. Two speeches, held in Syria and Israel (Um El-Fahm) respectively, form the basis of the charge., of having humiliated Israel, and of having given him and other Arabs the first glimmer of hope since the Six-Day War.
These statements are picked out and directly quoted in the indictment

THE LEGAL BASIS

The indictment has been brought in relation to the Prevention of Terrorism Ordinance No. 33 of 5708/1948, Article 1 of which gives the following definition of a terrorist organisation:

“1. “Terrorist organisation” means a body of persons resorting in its activities to acts of violence calculated to cause death or injury to a person or to threats of such acts of violence.”

Azmi Bishara is charged with the breach of Article 4 of the Ordinance which deals with “Supporting a terrorist organisation.” References to especially Article 4 a, b, and g are made:

“4. A person who –

(a) publishes, in writing or orally, words of praise, sympathy or encouragement for acts of violence calculated to cause death or injury to a person or for threats of such acts of violence; or

(b) publishes, in writing or orally, words of praise or sympathy for or an appeal for aid or support of a terrorist organisation; or

(g) does any act manifesting identification or sympathy with a terrorist organisation in a public place or in such a manner that persons in a public place can see or hear such manifestation or identification or sympathy, either by flying a flag or displaying a symbol or slogan or by causing an anthem or slogan to be heard, or any similar overt act clearly manifesting such identification or sympathy as aforesaid,

shall be guilty of an offence and shall be liable on conviction to imprisonment for a term not exceeding three years or a fine not exceeding 22.500 NIS or to both such penalties.”

Without further explanation it is stated in the indictment that Hezbollah is a terrorist organisation according to the definition in the Ordinance.

DISCUSSION OF THE STRATEGY OF THE DEFENCE

The evening before the hearing a meeting was held for Arab lawyers to discuss the strategy of the Defence. About 120 Arab lawyers attended, and the meeting went on for four hours.

The discussion focused on how the Defence should weigh the political and the legal aspect of the case. Some argued that the Defence should approach the case as purely political. Nobody wanted the case to be seen as purely legal, but several argued that the professional and legal aspects had to be drawn in to a very high extent, as the judges would not tolerate a purely political approach. No clear conclusions were made at the meeting, but the strategy of the Defence was probably already decided: an emphasis on the political aspects of the case but with law and professionalism in place as well.
The importance of the right of resistance was agreed upon.
It was asked whether the Defence would use some of the many extremist statements from extreme, Jewish Knesset members in order to illustrate the practice concerning the freedom of expression. Azmi Bishara, however, answered that he had turned down this suggestion because it would drag the case down on a level where it did not belong. He added that he
did not want his statements to be compared with theirs.

There was great satisfaction with the initiative to hold the meeting – the first of its kind with a large number of Arab lawyers – and it was suggested that this should be repeated every two or three months, as there were plenty of issues that would be of common interest. No decision was made on the issue, but the interest was clear so the question is probably only whether someone will take the initiative to follow up on it.
Furthermore, it was argued that the group was far too big for further discussion of strategy in the concrete case. A smaller group, which Bishara’s lawyer should be able to consult when necessary, was suggested. As far as I understood this was set up at the meeting.

Finally it was suggested that all lawyers present should demand to be assigned as counsel for Azmi Bishara as a symbolic gesture of support. It was discussed for a while, and a list of 90 lawyers were presented at the hearing the following day.

THE SITUATION AT THE BEGINNING OF THE HEARING

Outside the court about 150 people staged a demonstration from the early morning and during most of the day on 27 February. The most visible and repeated phrase on the banners was “The settlements are terrorism”. There were no speeches. Everything seemed peaceful and relaxed. People talked to each other in small groups, and there was not the least sign of aggression or confrontation. The atmosphere was basically as it had been at the first trial (concerning the bus trips to Syria) in December 2001.

Inside the court room things were different. A lot more people wanted to attend the hearing than had been the case in December. The courtroom was the same as last time, with seats for about fifty people. We (the foreign observers) arrived early and waited at the front of the queue for about two hours before we were let in.
The media coverage was also much greater this time. There were about 12 television crews. They filmed before the hearing really got started, and then all but one had to leave the court room. This gave rise to the only scene that took place: An older gentleman protested loudly about something, did not follow the order about leaving, and was finally pushed and half-carried out of the room by four court ushers while he was shouting and kicking. He was, I was told, the chief editor of one of the Arabic newspapers, and he protested because all the Arab media were shown the door, while one Israeli television crew was allowed to stay. However, I was later told that the television crew in question was the Israeli public service station and that the “special treatment” of this station was the rule rather than the exception.
To state their sympathy and support 4-5 Arab Knesset members from other parties than that of Bishara showed up as audience. This had not been the case at the first trial in December, which clearly shows that this trial is considered the more important.

THE SKIRMISHING

Already before the start of the trial the Defence had won a few victories: The Prosecution had requested for the trial to be hastened, using the argument that Azmi Bishara is a man too dangerous to have walking around free(!). The Defence had opposed this by referring to the fact that they needed time in order to prepare the defence. The opening hearing was not speeded up. Quite on the contrary, it was postponed for a week.
The trial was originally – unlike the first trial – meant to take place in Jerusalem. The Defence asked for it to be moved to Bishara’s home town Nazareth, and this request was complied with.

However, the young, female prosecutor from the first trial had been replaced by what was allegedly a “big shot” from Jerusalem, a man who is expected to become the next public prosecutor of Israel. In Bishara’s camp people were a little anxious of how tough he would turn out to be.

Tug-of-war about procedure
As mentioned, the hearing started with the presentation of a list of 90 Arab lawyers who all requested to be assigned as
counsel for Azmi Bishara in the trial.
Thereafter there was a rather long tug-of-war on procedures: The Defence wanted to begin by dealing with the indictment in a general way, and do it orally. The Prosecution, on the other hand, preferred to do it all in writing. Furthermore, it requested that – if the court should decide to go for an oral presentation – the Defence should consider the hard facts in the indictment from the very beginning and only include its general views and considerations if absolutely necessary.
The court was initially inclined to support the view of the Prosecution but ended up letting the Defence begin its presentation as it wished – however, with the admonition to avoid further repetition of the general views when the facts were later to be considered.
It turned out, as the day went by, that the Defence was let do exactly as it wanted. This was probably crucial for the Defence as it was almost the precondition of being able to emphasise the political aspects of the case.

THE MAIN POINTS OF THE DEFENCE

The Defence began by declaring that the trial against Bishara is political. The legal action taken against Bishara was not caused by what Bishara actually said in the speech in Syria. Rather, it is caused by what the speech is understood to represent and by the way it was presented on television.
Originally the public prosecutor did not think there was basis for taking legal action. When he later changed his mind, it happened, according to his own statements to the press, after he had had discussions with the Security Service, with members of government, and with representatives from the larger parties in Knesset.

The significance of the Um El-Fahm speech
It was the speech in Syria, and especially the media coverage of the event, which made Bishara’s political opponents demand to have him indicted. But why is a speech given in Um El-Fahm, Israel, a year before then included?
Simply because it was necessary, as the speech in Syria does not mention Hezbollah or any other named organisation with one word!
This, however, is irrelevant, and even more so because it already in year 2000 had been investigated if the speech in Um El-Fahm could lead to legal proceedings. The case was closed when the local prosecution concluded that there was no basis for formal charging, among other things because of the substantial immunity of Knesset members.
(The Defence presented a copy of the decision to close the case made by the local prosecution on 19 December 2000. The prosecutor objected against the fact that the document was discussed at all, as it had no weight as evidence what a local prosecution had decided. After some discussion the presiding judge stated that the document could not be considered “evidence”, but that it would still be included in the considerations of the court as an act or document. The same thing happened with a couple of other documents that the Defence put forward during the course of the trial. This can probably be considered a 90% victory for the Defence).

The Defence pointed out that the higher levels of the prosecution originally had not reacted to the closing of the case and thus must be considered to have consented to the closing. It was not until after the speech in Syria that the public prosecutor re-opened the case and now – after discussions with the Security Service – a basis for formal charging is found! It can hardly be more political than that!

The Defence then showed that Bishara five days before the speech in Um El-Fahm had given almost the exact same speech in Knesset. This speech had not prompted any reaction at all and was not included in the indictment. What was the difference?

(The prosecutor would not exclude that legal action should have been taken after the statements in Knesset five days before Um El-Fahd. However, he emphasised that the different context of the two speeches was important. The same remark gets a whole new function and character when it is given at a public meeting as opposed to in parliament. Furthermore, there is a more direct call to learn from the methods of Hezbollah in the speech in Um El-Fahm than in the one given in Knesset).

A diffuse indictment
A charge of this sort must be brief and concise, but the indictment is long and diffuse. The Defence found it characteristic that the interpretations of the different statements in Bishara’s speeches take up far more space than the statements themselves. This, according to the Defence, reflected the fact that the statements per se could not convincingly be considered criminal and that only extremely long-winded and diffuse interpretations could lead to such an interpretation.

For instance, it is claimed that Bishara encourages the Arab states to fight Israel (implied, militarily). He actually does not say that.
It is also claimed that he recommends the methods from South Lebanon used against the Israelis in the occupied, Palestinian territories. No such recommendations are made in the speech.
Furthermore, it is claimed (article 2 in the indictment) that he identifies with Hezbollah, that is, with a terrorist organisation. There is no evidence of this either

Note:

It surprised me that the Defence did not really make references to the right to resistance. However, this will probably happen later in the course of the trial. It appears difficult to refute the interpretation of the Prosecution completely if one does not emphasise that the Israeli troops in South Lebanon – and now in the Palestinian territories – are to be seen as an occupation force, which is why resistance, irrespective of the methods used, should be regarded not as terrorism, but as legitimate resistance.

Precedents concerning immunity
The Defence went through three or four comparable cases where Knesset had refused to lift the immunity, or where the courts subsequently had stated that there had been no basis for lifting the immunity.

THE PLEADING OF THE PROSECUTION

When the turn came to the prosecutor in the late afternoon, he requested to submit his pleading in writing. The court turned this request down with the remark that when oral presentations had been started, this had to be continued. The prosecutor was told that he had an hour and, if that was not enough, that he had to continue his pleading at the next hearing, still orally. He clearly was not pleased with this, but eventually got started:
Initially he specified what the charge did not aim at: Azmi Bishara was not prosecuted because of his political or personal views. Legal action had not been taken to limit his political work as a member of Knesset. The charge was not diffuse, but very clear: it was only aimed at his illegal statements.
Such statements were not protected by his parliamentary, “substantial” immunity. The parliamentary immunity was only meant to secure that Knesset members could freely carry out the work and obligations following from their election to Knesset. It did not cover speeches like the one giving rise to this trial. Basically, this was about statements and behaviour that no decent Knesset member would come up with.
Directly asked by the presiding judge how he would define “a decent Knesset member”, the prosecutor was evasive.

He repeated that he would not rule out that the speech in Knesset five days before Um El-Fahm could have led to legal action. It had not happened, but that, of course, did not mean that the speech in Um El-Fahm was exempt from punishment.
Furthermore, there were important differences between the two speeches, in relation to context as well as to content. Even if the wording had been identical, it makes it completely different to say things at a public meeting than to say them in Knesset. On top of that, the Um El-Fahm speech had directly encouraged people to learn from the Lebanese experience – the Knesset speech did not do that.

Finally he presented some views on the incompatibility of terrorism and democracy. It seemed a bit rambling, vague, and long. However, he clearly stated that Bishara had not lived up to the obligation of loyalty to the Zionist state (he actually said that!

After the prosecutor had had about an hour, the hearing was closed. The prosecutor had not commented on the precedents presented by the Defence – but, of course, that can happen at a later stage.
The prosecutor asked for permission to do the rest of his pleading in writing, but this was refused. The trial will continue on 7 April 2002 with the rest of the pleading of the Prosecution, orally.

Note:
In Israeli criminal law (unlike the Danish ditto) there is nothing preventing written statements – as it was also decided in the first trial (the bus trips to Syria) in December. When the court opposed the repeated requests by the prosecutor on the matter, it was to avoid discriminating against any of the parties. During the oral presentation of the Defence, the judges and the prosecutor were allowed to interrupt, ask questions, and comment on what was said. This happened several times. It could be seen as unfair if the same opportunity did not apply to the other side as well.
While the immunity of Danish parliamentarians can be seen as a filter to protect against harassment or political prosecution of the parliamentarians by the Prosecution, this does not imply any exemption from punishment for acts that other citizens can be punished for. The “substantial” immunity of Knesset members goes further than that. It can very well imply immunity from actions that other citizens would be punished for, but the criterion is that the action in question is the execution of a task connected with the membership of Knesset.
(It is difficult to see, what that could be if it – as the prosecutor claim – does not include a political speech in which the views of the party are expressed).

The “big shot” from Jerusalem did not do a very good job. He was either poorly prepared or only good in writing – which his continued requests for permission to continue the hearing in writing indicate. The presentation was not closely reasoned, but incoherent and messy. Now and then he paused for long in order to think and sort out his papers. Sometimes he resorted to reading from a manuscript. A couple of times it became obvious that the judges (all of them) were annoyed.

ASSESSMENT

On Bishara’s side there was great satisfaction with the course of the first hearing. It went far better than expected, actually as well as it possibly could. Some were of the opinion that the case was already half-won.

People were especially surprised and relieved due to the performance of the prosecutor. However, they expect him to be much better prepared when the negotiations resume on April 7.


Even though the hearing went very well, I personally do not think that it augurs anything about the outcome of the case. The acts, criminalized according to Article 4 in the Ordinance, seem so all-embracing that it is almost legally impossible to get off – if the acts can be linked to a terrorist organisation in any way.
And the definition formulated in Article 1 of the Ordinance is so broad that the definitions currently used by the EU and the Danish Folketing seem clear in comparison. There are thus no demands as to the size or the object of the organisation, nor to a political aim or to an intention to disturb the social order, undermine the social institutions, intimidate the population, etc.
Taken literally, the Israeli definition of terrorism will include crimes of passion, violent offences against property, and other privately motivated acts of violence, as soon as two or more people are involved

The key question is whether the judges will state that Hezbollah shall not be characterized as a terrorist organisation and that Bishara must therefore be acquitted. To me this appears legally (according to the definition of the Ordinance) and not least politically unlikely.
On the other hand, a conviction will receive a lot of negative attention from the international community, which will be unpleasant for Israel.
The judges are in a real dilemma in this case. No matter what they do, they will be met with serious criticism from one side or the other. I would not be surprised if the Israeli authorities, including the government and the majority in Knesset, already regret that they ever took legal action in this case.

With the reservation that we have so far only heard about half of the initial statement of the Prosecution and none of the parties’ arguments concerning the concrete facts of the case, I am inclined to see the court as highly interested in finding a technical reason for dismissing the case.
It would not be difficult to find a way to argue in favour of a dismissal – for instance, that the charge is the result of political discussions. Such a dismissal on technical grounds would be to the clear advantage of the court. It would then not have to consider and address the controversial questions that the case will otherwise raise. This, of course, is pure speculation on a very provisional basis on my part.

If the trial goes ahead, on the other hand, it is hardly wrong to say that Azmi Bishara has won whether he is acquitted or convicted.

Preben Wilhjelm

Former Danish MP