Military court Ofer, Monday, 18.9.06, AMObserver: Roni H. (reporting)Appeal by the prosecution against the decision of the court to release on bail 18 Palestinian parliamentarians .Judge: president of the appellate court Shaul GordonDefense lawyer: Jawad Bulus, Usama Sa’adi and 3 othersProsecution: Limor Ben-HamuDefendants: 18 Palestinian parliamentarians who are charged with membership in a terrorist organization Because of restricted place in the court room, the defendants were brought in 3 groups of each six persons. Each group and their respective family members spent about 40 minutes in court and after 40 minutes they were exchanged by the next group and their family members.A great number of press photographers and correspondents filled room Nr.3 and waited for the defendants to be brought in. 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 prosecutor repeated the warguments for their appeal against the decision to release the defendants on bail. The defendants were arrested not because they participated in the elections, but because they are members of a terror organization. Israel has declared before and after the elections that it does not support Hamas’ participation in the elections and it does not give protection to anybody who belongs to Hamas. Israel did not take actions against Hamas immediately after the election because it was waiting for Hamas to be disarmed. The defendants are dangerous because the activities of Hamas have gone up significantly in the month of July and August, as the graph (diagram) presented to the court shows. The prosecution denies the argument of the defense, that the arrest of the defendants has a political purpose.Defense (Bulus):The military court has no authority to arrest and judge members of the Palestinian parliament or ministers. Parliamentarians should enjoy immunity and not be kidnapped from area A to the Israel. Israel uses its power to prevent elected representatives from participating in the meetings of the parliament. Every soldier at a checkpoint can disrupt the activity of the Palestinian Authority. Thus Israel becomes the actual “landlord” of the Palestinian parliament. The arrest of the Palestinian legislators was based on motives which were not legal but political. 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 candidates have been publicly 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 were not to the liking of the Israeli government the army has arrested Hamas representatives in the parliament. The fact that Hamas has decided to participate in the elections – (at the beginning it was very hesitant) – makes them to partners in the political arena and obliges them to comply with the “rules of the game”. Positive changes have been going on in Hamas after the elections and they should be encouraged. Abu Teir has been called several times to appear before the security services in the Russian Compound in Jerusalem and he has been encouraged to participate in the elections. Now he has become dangerous all of a sudden! The statistical diagrams presented by the prosecution about the escalated terrorist activity of Hamas in July and August have no connection to the reality in the West Bank. Mahmoud Abbas is sitting today with president Bush and other leaders of the world – this is the reality which should convince the court. The military court under Ronen Atzmon has thoroughly considered the arguments of the prosecution and has come to the decision to release the defendants on bail. Defense lawyer Bulus pleads to the president of the appellant court to reject the appeal of the prosecution..Defense lawyer Usama Sa’adi analyses the argument that Israel has changed its policy towards the Hamas as a result of the “escalation” that has taken place in the months of July, August. Sa’adi cites a number of legal documents which relate to this question. Israel can change its policy, of course. What is not acceptable is that the new policy is applied retroactively to situation in the past. The elections have taken place with Israel’s approval. Hamas has won the elections and has also stood to its promise until June,7 th not to launch attacks. The 25th of June (Kerem Shalom, kidnapping of Shalit) has changed everything for Israel as far as its policy is concerned, although it was an attack on the army and not on civilians. Israel can declare that from now on every member of Hamas will be legally persecuted but it cannot persecute Hamas members retroactively.. Some of the defendants claim that they are not even Hamas members, but members of the Committee for Changes and Reforms. Nevertheless all of them have no other but parliamentarian activities and they are not indicted of anything else but being members of Hamas. The defense argues that the parliamentarians serve as “bargaining chips” for the release of Gilad Shalit, which is a scandalous motive and a political one as well (attorney general Mazuz himself has insisted that the detainees should not serve as “bargaining chips). Prosecution:argues again and again that the detainees are not only Hamas members but policy makers and that Hamas has perpetrated 47 attacks in July. When asked by the judge to specify one or two attacks the prosecution is at a loss and does not know what to answer (because they obviously have in mind the Qassam rockets that were sent from Gaza, as Bulus remarked ) It repeats that Hamas is a great danger for Israel and that it is a murderous terror organization.Judge Shaul Gordon uses the argument of the defense, that Israel was supposed to declare openly its change of policy and criticizes the prosecution for using too many slogans and too little arguments. Nevertheless he does not make a decision, but promises to come to a decision as soon as possible.Summary:The defense was much better prepared than the prosecution. It brought its arguments in a very orderly and even scholarly way, with quotations from legal documents. The prosecution on the other hand uses the same arguments all over again and talks in very general terms. But it does not matter that the judge obviously adopted the argumentation of the defense that a change in policy has to be made known publicly. The prosecution can rest assured that in the end its demands will be fulfilled because it represents the Israeli authorities and the military court will fulfill, as usual, its traditional role as being the instrument of the state. If this argument would have been adopted, the military court will have a great problem to justify the arrest of Palestinians who have been members of Hamas before the change of policy has taken place. There are hundreds if not thousands of Palestinians sitting in custody for their membership in Hamas and dozens are waiting to be indicted every day for this offense!