Socialist Resistance : SR34 - April 2006

Palestine

Blair washes hands of Israeli human rights abuses

Lawyer condemns British involvement
Daniel Machover

In March the Israeli Defence Force stormed Jericho prison after a nine hour siege, killing three people and seizing a number of prisoners - including Popular Front for the Liberation of Palestine (PFLP) leader Ahmed Sa’adat. Violent protests raged across Palestine and the Arab world - in particular directed at the complicity of Britain. The departure of British monitors had triggered the assault.

SR: What’s your understanding about the background to the storming of the prison and the seizure of Ahmed Sa’adat?

DM: Very briefly, the background was an international agreement brokered by the US and UK governments to break what was then the siege of the presidential compound in Ramallah in 2002.

The Israelis purportedly started the siege because they learnt that six Palestinian suspects were being detained in the prison part of that compound by the Palestinian Authority (PA). They were: Fuad Shubaki, who had been arrested by the PA in connection with an arms shipment, and five others. The rest were all members of the PFLP and included PFLP leader Ahmed Sa’adat, who is the client of Hickman and Rose, and also the head of their military wing.

When that siege began, the Palestinian President Arafat ordered a "trial" to take place. A judge was wheeled in and a very hasty and very dubious trial occurred of four of the PFLP members including the head of the military wing. The head of the military wing was convicted of ordering the killing of Rehavam Ze’evi who was a member of the Israeli cabinet, as tourism minister. He had been killed in October 2001 in the Hiatt Hotel.

He was killed a few months after the killing (in the first of the round of political assassinations that the Israelis carried out), of the former leader of the PFLP (our client’s predecessor) called Abu Ali Mustafa in the centre of Ramallah by the Israelis around September 2001.

Winding forward to the compound. The judge convicted these four Palestinian members and the Israelis still wouldn’t lift the siege. The Israelis were asked by the PA for any evidence they had against Ahmed Sa’adat regarding his involvement. There wasn’t any. Even under this rather dubious trial, there wasn’t sufficient evidence for the Palestinian prosecuting authority to bring Mr Sa’adat to trial.

Further footnote: under a 1995 agreement between the PA and the Israeli government it was agreed that the Israelis would respect the judgements of the criminal courts of the PA.

So these four people have been convicted in a dubious process. Two by now have served their sentences. One was given one year, one two years. The alleged shooter was given 18 years. I can’t remember what the military leader of the PFLP was given.

The Israelis refused to lift the siege. The British stepped in with the Americans and offered to physically transport them. That’s very important. They immediately took a legal role in our view, in the transportation, and subsequently in the less direct but very important role in the supervision of their ongoing detention in Jericho.

So they transferred these people under an international agreement, which we now have but which was not otherwise made public, to a PA-run gaol in Jericho. They were required to keep them there, not till the termination of their sentences (in the case of those that had been convicted) not in relation to any legal process in relation to the unconvicted (Mr Sa’adat and Mr Shabuki). And that’s where they have been ever since the beginning of May 2002.

Following that, the siege was lifted. Arafat was allowed freedom of movement which he hadn’t been from the compound previously. That was the deal.

What the UK government did then immediately involved a breach of human rights. UK officials and agents were actively involved in a breach of certainly Mr Ahmed Sa’adat’s rights - as a person who was being held under arbitrary detention.

SR: Is it right that a Palestinian Court had denounced his detention as illegal?

DM : Not at the point that his transportation was arranged. The transportation from the Mukata’a [the compound] - after this trial he wasn’t involved in - was arranged in May.

On June 3 2002 an order of the Palestinian High Court was made, in effect in Habeas Corpus proceedings, requiring his release. That was obviously served on the PA. We are seeking disclosure of everything, if anything, that passed between the PA and the governments of Israel, America and the UK as regards the PA’s duty to comply with that order. We believe that they were prevented from complying with that order through threats and the invocation of this original agreement. And we believe that Mr Sa’adat was given a clear indication that if there was an order requiring his release from the Palestinian High Court, that would be respected.

The question is what we should be doing about it in the UK, about the UK involvement with all that. All of that needs to come out.

So there was an order. That had further ramifications - taking the monitoring agreements which are annexed to the actual agreement, our client’s instructions and the judgement in a recent case to do with the British presence in southern Iraq - regarding the extra-territorial reach of the Human Rights Act.

We were in the course, having just been instructed a week before these events, of preparing representations to the British government to try and arrange for them to suspend the usual monitoring arrangements by allowing him to leave but not reporting his departure to the Israelis which it would have been obliged to do under the agreement.

We said that was going to be a breach of his human rights. It would have put him immediately at risk of either further arbitrary detention or death – which he risked on the 14th March when the Israelis were allowed to step in and demolish part of the Jericho gaol.

Moving to where we are now. We know now, because it has been made public, that on March 8 following earlier correspondence with the PA, the UK and US under the agreement reported their concern of the breaches of the monitoring arrangements.

Our understanding is that the breaches in question were trivial and any security concerns, which we will probably never know, were not very specific and all relate to the fact that there could be no objective legal reason under local law or under international human rights law, why the two Palestinians who had already served their sentences and, particularly, Mr Sa’adat, should not have been able to walk out unhindered without having that fact reported to the Israelis or anyone else. But that was the requirement of the international agreement.

We say that is the devil in this, that put them under such risk. They couldn’t simply take the risk of walking out because the monitors were there and would have reported that to Israel, they would have been dead rather than being able to try and find safety. There’d be no chance of them being able to do that.

SR: Was there another underlying reason for these developments?

DM: The security considerations may have been real. The issues that have been made public have been trivial which are the breaches of the agreement, which are things like having mobile phones. They weren’t saying mobile phones were being used to put them under risk.

They were just reporting the fact that they were unhappy that certain relatively minor infringements of the monitoring arrangements were taking place. That’s referred to as if it’s a big issue and our understanding is that it wasn’t. Further it may have been that they had some genuine security considerations that we are not being told about.

But I would say that they likely all to flow from the fact that when the Hamas putative Palestinian Authority was elected, it had said that it would release these detainees. The Israelis immediately made it clear that they would not allow these people simply to be released. They would either kill them or detain them themselves.

SR: Are you suggesting that the initiative for what occurred may have come from the Israeli side?

DM: Hamas correctly realised that, certainly in the case of the three that I have been discussing – the two that have served their sentence and Mr Sa’adat and arguably Mr Shubaki, – under Palestinian law there was no actual basis for their continued detention. The problem stems from that. They took, in our view, a totally correct view of their obligations under local law that they shouldn’t really be detaining these people any more.

The problem has been that the PA had entered into an international agreement in order to lift the siege, under pressure, elements of which are void under local law and were contrary to the Human Rights Act because they involved a UK agent in an arbitrary detention certainly after the service of the sentence of the two and in relation to untried, unconvicted, uncharged others `- completely arbitrary detention.

Not only were they involved in the arbitrary detention but there was no way under the agreement, if they were to follow it to the letter, that they could allow these people to leave without reporting it to a third party (Israel), that they knew would take measures to further infringe the human rights of those concerned. It’s a kind of extradition/deportation type situation under the Human Rights Act.

Turning back to your very original question. We now know, we’re pretty sure what the March 8 letter set in train. The motives were the British knew that the time was coming when Hamas would make a positive decision. They did not want to be caught in the middle of Hamas releasing these people and the Israelis stepping in. They wanted to step out of that whole zone.

Security risks to the monitors were real and they were the fact that it was up and coming that the Hamas government would release and they would be placed at risk.

So there was a question of protecting the monitors from the emerging risks in the future. The question is what were the Human Rights Act obligations? Can you say that those risks suspended any duties, assuming we can establish them under the HRA, that they had towards the human rights of those that they had been helping to be arbitrarily detained. That’s the legal issue.

In practical terms, they say they did not give the Israelis prior notification. We know – whatever the politicians meaning of "prior" – that they told the Israelis as they left Jericho gaol. They informed the PA and Israel of their departure. It didn’t really matter that they didn’t give them any more sophisticated prior notification because the March 8 letter was given to the Israelis. Under the agreement they had to tell the Israelis about the March 8 letter and of course Israel deployed forces. They were probably getting ready to deploy forces well before then because of their very real threat to do something if Hamas suddenly released these people.

From the end of January Israel was ready to take action, they had already developed a military plan. They had made that clear. If you look on the Israeli Foreign Office website, in the English part of it there are statements which made it absolutely clear that by January 16 Israel had prepared a military plan.

On March 8 they got the letter, they knew something was going to happen, they put the first part of that plan into operation. They may have done that already before for all I know. They deployed the relevant troops very near Jericho. The geography means it wasn’t difficult to do. They were told on the morning that these monitors left their posts, they were told they were going for good. And they were able to deploy so that they were at the prison within twenty minutes of the monitors leaving.

Our instructions are the monitors told the individual prisoners, not the PA, that they were going for a walk.

SR: The Israeli foreign minister was in London only a fortnight before all this meeting Tony Blair and foreign minister Kim Howells, do we know whether that included any discussion about it?

DM: We know that they discussed issues around the appointment of the Hamas government but I’ve got no knowledge at the moment. We may, through disclosure, if we get involved in proceedings, be given some or all of any interchange including anything that was discussed at that meeting. So I don’t know the answer to that question, no.

SR: In effect what you are saying is that the widespread anger in the Palestinian community and the Arab world as to British collusion may have had some basis.

DM: I think it certainly did have a lot of basis, although I wouldn’t call it "collusion". I would call it an involvement in an arbitrary detention which turned sour and which the Israelis were going to make sure ended badly for the Palestinians involved, rather than in their emancipation.

Further human rights abuses would take place. The British fully knew that. It’s not collusion, it’s just washing their hands of the whole affair. I don’t think that either of them is a particularly honourable or legal position for the British government to have adopted, having involved themselves in the situation.

I would liken it to this. A British policeman happens upon a scene and for some reason ends up arbitrarily detaining someone on the street and there’s a lynch mob round the corner waiting to get them. Now, having committed the initial illegal act of arresting someone, do they just withdraw knowing the lynch mob is round the corner, saying I’ve committed this initial illegal act and I probably ought to go away – even if they accept they have committed initial illegal act, which of course the British government haven’t admitted that they have done, but that’s our analysis.

Having committed the illegal act it wasn’t for the British simply to walk away. They needed to do something, if they could, to protect the Palestinians from further abuse of their human rights.

There’s certainly a very strong moral argument. The question of legal argument and what remedies are left for those in Israeli hands is what we are looking at now.

SR: Was Sa’adat ever actually charged by the Palestinians?

DM: No

SR: Has he been charged yet by the Israelis?

DM: No. He is in a pre-charge procedure that could last as long as 180 days, depending on choices being made now. Under Israeli domestic provisions if he is going to be tried in a civilian, rather than military, court in criminal proceedings they would be entitled to hold him 30 days pre-charge. If it’s in a military court they can hold him for up to 180 days without charging him.

So that’s where he is at in the legal process – which he does not recognise.

SR: Is he going to have much confidence in the fairness of any proceedings?

DM: No. Again look at the Israeli Foreign Affairs website. They have repeatedly called all of them, including him, "murderers", "murdering terrorists", without any qualification. And this was not just when they were after them as "suspected murderers", but since he has been in their custody.

For the state that’s going to prosecute him to repeatedly label him as such, gives him no confidence that a judge is not going to feel the enormous pressure of the executive to convict.

SR: And in his particular case there doesn’t appear to be any evidence against him anyway?

DM: There isn’t any. He absolutely insists that, as things occurred at the time, he was actually not involved. Albeit he was the General Secretary of the PFLP, he was not head of the military wing. He was not consulted or had any discussions regarding this particular act against the cabinet member Rehavem Ze’evi. And you need to remember he hadn’t been the leader of the PFLP for very long.

SR: The previous incumbent had been assassinated by Israel.

DM: Within, I think you are talking about weeks, certainly not months between the killing of his predecessor and the killing of Rehavem Ze’evi. You can take it as a reprisal act and I think it was claimed as such.

But to accept leadership responsibility for something, in other words to say "this was an act by the PFLP and I’ve accepted it was", is no different to Sinn Fein leader Gerry Adams turning round and saying "yes this was an IRA act". It doesn’t give him a command role in it.

Several issues have been conflated, which is convenient for the Israelis, of course, to do. I would liken him, in broad terms, to Gerry Adams - head of Sinn Fein at the time of IRA military action. That wouldn’t mean he would disown those who committed this criminal act. He would regard it as a political killing, however we may think of it.

Certainly no Israeli has ever been arrested for the killing of his predecessor. If that person has been detained without charge for four years and there was a British involvement, and I was instructed by the client, I would be equally outraged.

SR: You were involved in a separate case: the issuing of the arrest warrant through the District Judge and the Metropolitan Police to arrest Israeli Defence Force General Doron Almog when he flew to London last year. He ended up escaping. At the time I think it was suggested by you that he must have been tipped off.

DM: He certainly was.

SR: Is there any more information that has come to light as to what happened then?

SM: The position is this. At some point on Sunday September 11, most likely after the plane had left from Tel Aviv - because we doubt he would have got on the plane had that information rolled out - the Israeli embassy in London became aware that there was a warrant out for him and that police officers were going to be at Heathrow waiting for him on his arrival.

We believe that information came from the police. We believe, because of statements made subsequently, that there were contacts then made between the Israeli embassy and the foreign ministry.

Jack Straw has said, in apologising for the affair, that he wished he could have said more at the time but he was told by his legal advisors he couldn’t. It’s very likely, as a result of that, for reasons that have not yet come to light, that the there was a decision transmitted to the police officers on the ground not to board the plane. We’ve never got to the detail of that or how that decision was made, but we find that very, very suspicious.

For example some weeks earlier, it’s been revealed on a TV programme, police boarded a plane at Heathrow that had arrived from Jamaica to arrest suspects in a drugs case. It’s not as though the police don’t know how to do this, don’t do it or haven’t done it. They have boarded planes at Heathrow, it is part of UK territory. They don’t have to wait for someone to come through immigration controls. "Airside rules" are all to do with not needing a transit visa.

SR: So it looks as though the police were held back?

DM: We believe that for some reason, that we have not got to the bottom of and which doesn’t make sense of as a legal decision, they did not board that plane. Meanwhile, we know that he was phoned on arrival at Heathrow.

The pilot was phoned by someone from the Israeli embassy and told to not let Almog leave the plane. Almog received a message not to depart, not to leave the plane when everyone else disembarked.

While he was on the plane, he and the military attaché from the Israeli Embassy spoke on the mobile phone. The attaché actually then came through security somehow and boarded the plane, met Mr Almog in person and told him then that there was a police officer waiting.

He said this on Israeli television and on British television when he was interviewed on his return. This is not speculation. This is what he himself has said happened. He was told there is a warrant out, don’t leave, go back, this plane is turning round anyway.

SR: Given the existence of a warrant issued through proper procedures, anybody involved in stopping him getting off the plane and allowing him to leave must have been attempting to pervert the course of justice?

DM: That was certainly our view and we reported it immediately as such to the police. We have also now been involved in a long complaints procedure which we hope the Independent Police Complaints Commission will take over as their own investigation.

We asked for a criminal investigation of everybody involved, including embassy staff who, of course, have got diplomatic immunity. We understand that. But the police could and should have asked for that immunity to be waived.

Following a refusal to do that we would have asked the Foreign Secretary, the Foreign Office, to have said, very politely, that anybody involved in this should now return. That, of course, would have created a big diplomatic incident.

But if you put any other country – other than Israel – in the story that unfolded here (possibly other than the USA), whose staff had quite openly been involved. Knowing there was a warrant out for the arrest of one of their nationals, they went and boarded the plane and persuaded the person to avoid arrest. That to me is an extraordinary thing to have happened.

If you put the Pakistani High Commission in that frame and this was some Al Qaeda suspect that they helped to escape, there would have been no way that the British legal system and political system would have allowed this to go by in the way that has happened in this case. It’s double standards.

SR: Since then there has been a bit of a furore because of high ranking Israeli Defence Force officers being advised not to travel to this country.

DM: That’s correct

SR: British officials have been in discussion with the IDF to see how the arresting of their generals can be avoided in the future. Can you tell us more about that?

DM: I can. There have been two meetings between British and Israeli officials, involving Home Office and Foreign Office officials. As a result we insisted on meeting some of the officials concerned just before Xmas. We have been dealing with the official who was asked by the Home Office minister Mr Anthony Burnham to write a report explaining the process and relating back to the Home Office minister what the Israeli representations had been and what the possibilities for changes in the law could be.

What they want to happen is for the right to apply for an arrest warrant - which is part of a criminal process under the Geneva Conventions Act that doesn’t require the involvement of the Attorney General – for that procedure to be amended so that it either will always require the AG’s direct consent or involvement; or some broader changes in relation to any warrant for someone who is a foreign national.

This is very worrying. Why change the status quo because of a request by the Israelis? Weakening the power and effect of the courts for reasons that have nothing to do with the strength of any evidence but have everything to do with the request of the Israeli government not to have their citizens subject to court-issued arrest warrants.

SR: This is a similar to what happened to the attempt in Belgium to indict Sharon, isn’t it?

DM: Well exactly

SR: Belgium was put under American pressure and ended up changing it’s law.

DM: Yes and in our view there could very well be American pressure going on for the very same reasons. The Americans also don’t want their nationals, who are suspected of committing international crimes, to be subject of possible arrest warrants issued by a British judge.

My question back is: why is that so wrong? What is the problem? Judges have had to deal with these warrant applications for many years. This is a very rare example of them actually granting one because they have been persuaded that the evidence exists.

So really the debate in Israel and here should be: how come it is that a judge was convinced to grant an arrest warrant. Was there something wrong or deficient? Well in my view it was completely defensible. Why? Because these events are happening. They raise deep suspicions of criminal acts being committed.

The whole debate is not, sadly, about what I have just said, but ends up being "how can we patch up international relations so that Israelis and Americans aren’t worried about sending their senior brass to the UK.".

SR: Wasn’t another Israeli general stopped from travelling here recently to study at an English academy?

DM: There has recently been a general who was accepted on the course at the Royal College of Defence Studies, Aviv Kochavi. There is evidence of his involvement in grave breaches. He was due to come to the UK, but was given advice by the Military Advocate General [of the IDF] not to travel. That again raised publicity in Israel about the Almog case and it’s wider impact. A number of countries are now considered to be off-limits for their generals.

Why those generals? Well there is evidence against those individuals (who they are advising not to travel) of active involvement in alleged war crimes. So again the debate in Israel sadly has not been enough about that source of the problem. It’s all "shoot the messenger", rather than "listen to the message". We have tried repeatedly with our partners in Palestine and Israel to put before them the actual issue here.

The message is: these are serious allegations, you are not dealing with them as you should be and not modifying your approach to the law and to the rights of the individuals. While you don’t do that universal jurisdiction will be invoked by the victims abroad – whether it is in Britain or any other jurisdiction that has a working legal system, as it should do, to bring these people to justice.

SR: Taking a step back, looking at all this together: British conduct over the Jericho assault, the fact that these generals are possibly coming to study in Britain and the actions of the police and possibly others over the Almog affair suggest that there is a job to be done in relation to British action and inaction.

DM: Absolutely

SR: Which hasn’t really been the focus of very much attention up to now.

DM: No, well I think that the fact the courts in this country can provide remedies to human rights abuses – either because of universal jurisdiction or where there is an involvement by the British government – is clearly emerging. It is our job, as British lawyers, where we are instructed by Palestinian victims, to try and push that to it’s maximum. Try to involve the British legal system in providing them with remedies where we can genuinely point to them.

SR: Do you think there has been there has been a change in the British government’s involvement with the Israeli state’s occupation of Palestine or is this just making public what was already going on in any event, does all this represent some sort of shift?

DM: No there’s no shift. The reality is that the attempt to try and get justice, purely locally has failed over a long long period of time. People are having to look abroad to the legal systems of other countries, where they are able to give them remedies.

It shows the absolute failure of the rule of law, the application of law, to Palestinians under Israeli occupation. Otherwise we wouldn’t be seeing these cases abroad. Again, as I said, the mindset of the British government is to fire-fight and to shoot the messenger rather than to understand the deep lessons of this.

Not only would there not be suicide bombs but they would not be seeking remedies abroad were it not for the utter failure of the rule of law and the operating legal systems in both Israel and the occupied territories.

SR: Is there a pattern with the British government’s role, like the "extraordinary rendition" flights scandal where it appears to be either assisting or turning a blind eye to the human rights abuses of, in this case Israel, or with the rendition flights – the USA.

DM: Absolutely. We talk about "a human rights culture" and that the "Human Rights Act has embed a human rights culture in many public authorities", but it seems to have skipped over the Foreign Office, certainly post-Robin Cook days. I don’t think Jack Straw perceives the Human Rights Act as having anything to do with anything that he does or his government does in relation to foreign governments or its activities abroad.

That’s possibly, an over-statement. But certainly in 2002 when they brokered this deal which was some 18 months after the passage of the Human Rights Act they didn’t think: should we be looking this through a human rights matrix. They just made a totally pragmatic decision to get involved in trying to lift the siege so that one man could travel. President Arafat shouldn’t be under siege and should be able to travel, so will agree to involve ourselves directly in the arbitrary detention of a group of Palestinians on a long term basis.

That, for me, is part of the problem, if you are looking at extraordinary rendition or Guantanamo Bay or wherever Britain could be involved or should be involved - the whole ethos of the Human Rights Act and what it was supposed to do in terms of changing the culture of public authorities just seems to be absent. It has just not been factored in.

SR: It’s a political issue ultimately isn’t it? It’s the government’s policies and its priorities.

Political expediency is being elevated above the issues of individual human rights and of compliance with the Human Rights Act.

Which doesn’t say much for Britain’s claim to a role as "honest broker" in the Middle East.

DM: I don’t see any British role as honest broker or the EU very much for that matter. There is evidence that they are politically active in terms of what we have been discussing. They are taking a complete back seat and allowing matters to proceed as they were, with the occasional very timid complaint about Israel’s quite obvious and in some cases gross violations of the Geneva Conventions and individual human rights.

This interview is a longer version than what appears in the April issue of SR.

Daniel Machover is a London-based human rights lawyer.

back to top