Military court Ofer, Wednesday, 13.9.06, PMObserver:Roni H. (reporting)Appeal by the prosecution against the decision of the court to release on bail 3 Palestinian parliamentarians.Judge: president of the appellate court Shaul GordonDefense lawyer: Andre RosentalProsecution: Limor Ben-HamuDefendants :Basem Za’arur File No. 3249/06Wail Alhusseini File No. 3250/06Ahmed Atun File No. 3251/06A great number of press photographers and correspondents filled room Nr.3 and waited for the defendants to be brought in. The parliamentarians came in prison forms, but without shackles. A large team of military personnel accompanied them and saw to it that they will not exchange a single word with the journalists or with their family members. The moment the judge entered, the photographers had to leave.Prosecution:The prosecution asked to delay the hearing for 24 hours, so that it could consolidate its position. Given the fact of the complexity of the case and that the court decision to release the defendants on bail has fallen yesterday noon, it seemed reasonable to grant this additional time span.Defense:Rosental reminded the court that the decision to release the defendants has been based on acceptance of the argumentation of the defense “We did not argue about the legitimacy of the court, or about international law. We agreed that there is evidence on which the charges are apparently based but there was no reason to keep the defendants in custody and the court has decided to release them on bail.Prosecution:The military prosecution denied that the Hamas officials were arrested because they were PA parliamentarians. Israel did not prevent their candidacy for the elections. Rather, it said, they were arrested because they are leaders of an organization that engages in terrorism against Israelis. It also argued that the fact that these officials were PA parliament members should not grant them immunity from prosecution. The defendants have to be held in detention until the end of the legal proceedings because their leading position in a terror organization makes them inherently dangerous. Since June the number of terror assaults has been gradually rising and reached its peak in July and August. (by the way, the defendants have been arrested on 29.6.06)Defense:The basic argumentation of the defense was based on the principle of “estoppel” (השתק). This is an argument, which prevents a person to deny the truth of a fact which has been determined in an official proceeding or by an authoritative body. The Israeli government has enabled elections in the occupied territories, according to the Israeli-Palestinian Interim Agreement on the West Bank and the Gaza strip. The lists with their agendas and their candidates have been published and have been known to all and none of the candidates has been disclaimed by the Israeli authorities – the parties have been recognized as legal. Now that the election’s results are not to the liking of the Israeli government the Hamas representatives in the parliament were being arrested. The military prosecution argues that the defendants are dangerous, although they have not acted in any different way than at the time of their candidacy, election and in the first months of their parliamentarian activity. Defense lawyer Rosental draws on the argument of “estoppel” (השתק) – the prosecution cannot deny the fact, that the lists and the candidates at the time of the elections have been approved by the Israeli authorities. Now that the outcome of the elections does not appeal to them, the prosecution decided to declare the parliamentarians as dangerous. The military court has thoroughly analyzed this complex issue and decided to release the defendants on bail. The defense rejects the appeal of the prosecution.Prosecution: At this point the prosecution was taken over and conducted by a male lawyer, who has been present throughout the hearing and whose name I did not understand.The Palestinian government under the presidency of Mahmud Abbas has accepted the responsibility of disarming its fractions. This has not happened. Hamas has taken an active part in terror assaults, amongst others the kidnapping of Gilad Shalit. In the course of August there was a rise in terrorist activity and there is no way to isolate the defendants, who are leaders in their organization, from this activity. Nowadays there is a clear policy of the government to arrest everyone who is member of a terror organization and to charge him. “We did not succeed in the way of peace, but we might succeed in indicting and sending them to prison”. The civilian activity of Hamas (such as charity) is not less dangerous for the security of the region than the military activity and thus the detention until the end of the legal proceedings of its leaders as well as administrative detention are justified. The overall objective of Hamas has not changed – it is still the destruction of Israel.Defense:I won’t enter a competition in the suffering between the Israeli and the Palestinians. Why does the prosecution not present the court with statistics of the targeted assassinations for the same period? The prosecution uses the Israeli suffering for its purposes, without relating to what Israel does to the Palestinians in their own autonomous territory. The way Israel has attacked Lebanon without second thoughts, so does the military prosecution in this case.Decision of the court:Until the final decision the defendants will remain in custody. The prosecution has to submit its additional material next day 12:00 and the defense can submit its arguments next day 18:00.Summary:The session lasted more than one and a half hour and developed towards its end from a matter of fact legal dispute between the sides into a political discussion. It seems that the military prosecution did not have enough legal criteria to justify the continuation of the defendants’ arrest and began to use political arguments and even slogans. The defense lawyer Rosental did not hesitate to move into the political arena since he was convinced from the very beginning that the arrest and trial of the parliamentarians were politically motivated.Rosental told me on Thursday that the Parliamentarians were still under arrest. There were rumors that they will be released within an agreement of prisoners’ exchange.