Volume 5, Spring 2009 3 Introduction The Editors 11 Criminal Trials in an Age of Terror Leora Bilsky 29 “Expanding the Space(s)”: Thoughts on Law, Nationalism and Humanism – Following the Bishara Case Barak Medina and Ilan Saban , ON CRIMINALIZATION 45 Amendment 66 to the Penal Law (2002), Article 144D2 – Incitement to Violence or Terror: Legislation Based on Political Considerations Khalid Ghanayim 55 “In Practice”: Interview with Attorney Saher Francis on her Experiences in Representing Palestinians before the Israeli 1 Military Courts Rasha Shammas 65 The Definition of Palestinian Prisoners in Israeli Prisons as “Security Prisoners” – Security Semantics for Camouflaging Political Practice Abeer Baker 81 The Expansion of Preventive Detention of Immigrants in America’s “War on Terror” Asli Ü Bâli 101 Book Review: The Case of Ariel Sharon and the Fate of Universal Jurisdiction Richard Falk 1969, Jerusalem, Joseph Algazy En route to the police station. The procession leader of a group of girls carrying a wreath for the Unknown Soldier is in his hands. He seems braced, his upper body turning towards her as though in a moment he will have to pounce if she tries to escape. In her relaxed and erect seated position, her glance staring forward, she signals a distance between her and the legitimate political deed she has undertaken, and the incriminating situation in which she is framed by the security forces. 2 Introduction The Editors This volume of Adalah’s Review opens its pages Territory (OPT) and the repression of their to an examination of the ways in which forms resistance to the Occupation. of political activity and resistance are The operation of the criminal justice system criminalized by the State of Israel, on pretexts is the most invasive and coercive exercise of of “security offenses” or “terror”. power by a state over its citizens, given the Whereas the criminal justice system is magnitude of the costs of enforcing a commonly perceived as being aimed at prohibition. These costs should be measured removing “criminals” from the general not only in terms of the loss of an individual’s population, it is often exploited by states in liberty, but also in terms of the wider damage pursuit of other goals. These goals range from caused to criminalized individuals and general goals, such as the creation of a communities, which may include physical, compliant citizenry, to more specific goals, like psychological and economic harm. As a result curbing flows of immigration or repressing of the potentially devastating ramifications of 3 “undesirable” groups, for instance the holders enforcing the criminal law, manipulation and of certain religious or political beliefs, members abuse of the criminal law by states for political of specific ethnic communities, people with purposes is an exceptionally grave matter. particular sexual preferences, and those Volume 4 of Adalah’s Review sought to suffering from mental illnesses. States also use investigate the concept of “security” and to criminal laws to restrict the movement of explore the State of Israel’s security-centered certain populations within their territories (e.g. reasoning in various cases, a reasoning that the Pass Laws in Apartheid South Africa), to assumes and requires the existence of a ‘threat’ prohibit interracial marriage (e.g. the anti- and the consequent need to eradicate it. More miscegenation laws enforced in Nazi Germany, specifically, that volume asked how practices and in the United States prior to 1967), and carried out “in the name of security” against to exclude specific national groups from Palestinian citizens of Israel can be addressed entering a state (e.g. Israel’s Prevention of critically without reconstituting the definition Infiltration Law of 1954). of these citizens, or some of their actions, as One of the other uses to which Israel puts threats to state security. its criminal justice system is as a means of Volume 5 of Adalah’s Review takes as its removing political acts and expression by point of departure a theme raised in the Palestinian citizens of Israel from the sphere previous volume, the question of political of legitimate action, thereby neutralizing the dissent by Palestinians – in this case dissent by political dimension of such acts and expression. Palestinian citizens of Israel and the occupied Similarly, military courts and prisons, Palestinian population – and explores ways in operating with the naked force of power and which dissent has been criminalized. The suspending certain rights, play a major role in articles in this volume examine a range of the criminalization of the Palestinian channels pursued by Israel to this end, population of the Occupied Palestinian including holding political trials of Palestinian Introduction political leaders, legislation aimed at further speeches in support of the Palestinian Intifada entrenching the criminalization of political against the Occupation. In the article, Bilsky dissent, the operation of the military court examines how in these cases regular criminal system, and the creation of the category of law was used to attempt to control an “inter- “security prisoner” within the Israeli prison group political conflict”. She further identifies system, which imposes additional restrictions difficulties that arise when the concept of and punishments on incarcerated Palestinian “terrorism” is brought within the scope of the political prisoners. The discussion of criminal law and when such cases are criminalization is then expanded to the adjudicated within the national court system United States and the arrest and administrative of a party to the conflict. detention of large numbers of Arab and Bilsky argues that using criminal law against Muslim men within a system of immigration- a political opponent lends legitimacy to the related detention following the attacks of state as the trial masks its own political September 11th, 2001. The volume closes by motivation and presents its political act as an considering the development of universal ordinary act of criminal prosecution. Thus for jurisdiction as a means of imposing the state, the aim of a political trial is to turn 4 international criminal accountability on a legitimate political adversary into a criminal, government officials for war crimes. i.e., the de-politicization of political adversaries. She concludes that criminal prosecutions Leora Bilsky opens this volume by probing obscure the political basis of the conflict, the legitimate boundaries of the criminal law thereby effacing its political and collective through an examination of two highly-charged context and the possibility of making moral trials of Palestinian political leaders held in judgments in light of this context. Israeli courts in recent years. In these trials, the prosecution’s case pivoted on accusations Barak Medina and Ilan Saban also discuss of “terror” that were translated into specific the Azmi Bishara case, but focus on the criminal offenses. The first political trial was Supreme Court’s decision in the case, delivered that of Azmi Bishara, a former Arab member in February 2006. In a two-to-one split of the Israeli Knesset and chairperson of the decision, the court’s justices dismissed the National Democratic Assembly-Balad party. criminal charges against Bishara, ruling illegal The trial concerned political speeches Bishara the Knesset vote in 2001 to strip him of his made in 2000 and in 2001 in support of the parliamentary immunity for the purposes of Palestinian right of “resistance” to the criminal prosecution. Part of the significance Occupation and in praise of the Lebanese of this case lies in the fact that it was the first opposition to the Israeli occupation of South in which an indictment was filed against an Lebanon. The second political trial was that MK for political speech. Through this decision, of Marwan Barghouti, a member of the and the Supreme Court’s decision of 2003 to Palestinian Legislative Council and a reject the Attorney General’s attempt to prominent leader of the Fatah movement. disqualify Bishara from participating in the While Barghouti was tried and convicted for Knesset elections, Medina and Saban analyze multiple counts of murder, the charges against the extent of the political space allowed to him dealt in large part with his political Palestinian citizens of the State of Israel to act Introduction and express their political opinions in the incitement contained within Article 144D2 of context of the Palestinian-Israeli and Arab- the Penal Law, which includes a test of content Israeli conflicts. and a test of consequence, makes it difficult Medina and Saban describe the Supreme to distinguish between the crime of incitement Court’s decision in the criminal case as a and publications that are protected by freedom “courageous ruling”, a liberal decision written of expression. Ghanayim also contends that “under fire”. They argue that the decision the addition of the term “acts of terror” to the “emphasizes the inherent ambiguity associated law serves a political purpose, and that the term with speech crimes relating to a call for violence ‘terror’ itself is a political term. Since terrorism in the divided society of Israel”, and that the is viewed by the public as posing a risk to the silencing of a critical debate is likely to result stability of the regime and to public safety, the in “special dangers”. While Medina and Saban declaration of an organization that the state are highly critical of Bishara’s political wishes to undermine or eradicate as a terrorist opinions, they nonetheless argue that he and organization is in and of itself seen to justify other Arab political leaders must be permitted the fight against it. The designation “terrorist” to exercise their freedom of speech in order grants the state the legal authority to employ to expand this space. all means against its target, including the 5 The issue of speech by Arab political leaders criminal law, on the pretext of “national once again came to the fore in the run-up to security”.