Israelis can now sue the Palestinian Authority on terrorism charges

 

A teacher from east Jerusalem, abducted twice & each time brutally tortured by agents of the PA, paved the way for terror victims to charge the PA in Israeli criminal & civil courts.

A precedent-setting verdict handed down by Judge Moshe Drori, establishes that the authority is not immune to lawsuits for damages.

By Nadav Shragai

 

For years, the Israeli courts have gone back and forth in the case of a man known only as Abdullah, an east Jerusalem teacher who was kidnapped and tortured by the Palestinian Authority’s security apparatus over suspicions that he had collaborated with Israel. Abdullah has been rendered a shell of himself, a broken man who managed to summon the courage to file a legal grievance against his captors and torturers. The case has dragged on for over 10 years in the various Israeli “Halls of justice” because this personal story is also a political hot potato, one on which the District Court and the Supreme Court were hesitant to rule for years.

Photo credit: Illustration: Ruti Goili

Now comes the judge who has put an end to this affair. In an unprecedented, 153-page ruling, Jerusalem District Court Judge Moshe Drori follows in the footsteps of his American colleagues, judges who have already awarded hundreds of millions of dollars in civil damages to the families of American citizens killed or wounded by terrorists operating at the behest of countries like Iran and Syria. Drori’s ruling states unequivocally that the Palestinian Authority is not immune to lawsuits filed by Israeli citizens and residents who were victims of Palestinian terrorism.

Dozens of civil lawsuits have been filed in Israeli courts against the Palestinian Authority, which is accused of encouraging and subsidizing acts of terrorism against Israeli citizens and, by extension, violating the terms of signed agreements and international treatises that require it to prevent terrorism. For years, these cases have suffered from lengthy legal delays and foot-dragging, primarily because the PA has claimed that the courts have no authority to adjudicate these lawsuits. That was before Drori issued his unprecedented ruling.

Abdullah, whose real name and profession cannot be made public due to threats to his safety, was kidnapped and tortured on two separate occasions 13 years ago by PA operatives working under the command of Jibril Rajoub after being suspected of being a collaborator with Israel.

Drori ruled that the PA bears responsibility for the kidnapping and torture that Abdullah endured at the hands of its security apparatus. The judge also acquiesced to the request of Abdullah’s attorneys, Nadav Haetzni and Orit Yefet, and assigned personal responsibility to Rajoub, who once headed the PA’s preventative security service and whose outfit ruthlessly punished anyone who chose to collaborate with Israel.

The second phase of the lawsuit, in which the amount of damages to be awarded will be decided, has yet to begin. But the verdict handed down in the first phase is important not only because it sets a precedent, but also because it has far-reaching repercussions beyond the case itself. Drori sketched out the necessary legal requirements for anyone seeking to prevail in these types of cases. To date, there have been 80 lawsuits filed against the PA, many of them submitted by the families of terrorism victims who were killed or wounded in attacks.

Abdullah’s nightmare began on the afternoon of April 17, 1999, when he was abducted at the Dura al-Fawar junction in the south Hebron hills, an area under Israeli military and civilian control. Abdullah, an Israeli citizen who worked as a schoolteacher in east Jerusalem, was forced into a car by six armed individuals. They did not produce an arrest warrant, nor did they appear to belong to any authoritative body. Abdullah’s arrest was a violation of all agreements that the Palestinians have signed with Israel.

Abdullah’s hands were tied, and he was taken to the offices of the preventative security service in Dura, where he was beaten and ordered to confess to collaborating with Israel. Later that evening, his captors took him to a desolate area near Dura, where he was dragged along the pavement, kicked repeatedly, and wounded with rocks and stones. He was thrown onto a shrub with sharp thorns protruding from its branches. He was then beaten again and stepped on. His captors extinguished cigarettes on his right cheek and his left thigh. They also urinated into his mouth and shoved a bottle into his rectum.

Battered, bruised, bloodied, and covered with mud, Abdullah was then taken to a Palestinian Authority-run jail in Hebron, where he was placed in solitary confinement and stripped down to his underwear. His hands were tied to the ceiling, and a rope was wound tightly around his neck almost to the point of suffocation. His torturers extinguished more cigarettes on him, stepped on his stomach, and beat him incessantly.

They also slammed his head into the wall, struck him repeatedly with wooden sticks, and kicked him in the head and genitals. Bleeding, helpless, and in extreme pain, Abdullah vomited before slipping in and out of consciousness. Then his captors poured cold water onto his naked body. Aside from the torture, Abdullah’s captors also tried to break his spirit and press him into confessing to the charges of collaboration. They threatened to kill him if he did not cooperate.

It was only after Israeli authorities learned of his abduction that officials demanded that the PA release him immediately. After two days of torture and abuse, the teacher was released, but not before he was warned by his captors not to reveal any details about his ordeal. They threatened to kidnap him again and kill him if he dared open his mouth.

Abdullah’s horrific ordeal would not end there. A year later, he was once again abducted, this time from within the municipal boundaries of Jerusalem, an area officially under Israeli sovereignty. A vehicle belonging to the PA’s preventative security service pulled up to the school where he taught just as Abdullah was helping a group of young girls cross the street after their school day. He was hit on the head and pushed into the car, which sped toward the Palestinian government office building in Bethlehem.

His interrogators denied him sleep. They wound a rope around his neck to the point where he nearly suffocated. He was once again beaten with closed fists. At one point, his captors staged his execution, aiming a pistol at his head and shooting so that the bullet whizzed by his ear. It was at this point that Abdullah gave up. He signed a piece of paper in which he confessed to distributing anti-PA leaflets, though he steadfastly refused to admit that he had worked for the Israeli security services.

After the lengthy ordeal of torture and abuse, Abdullah was taken to an area near Rachel’s Tomb in Bethlehem. As the car approached an Israel Defense Forces checkpoint, Abdullah was thrown out of the vehicle. Just before this, he was told by his captors that he had to make contact with them again for more questioning. Failure to do so would result in his death, they told him. Abdullah was taken to Sha’arei Tzedek Hospital for treatment. He then filed a complaint with the police. In 2002, he filed a lawsuit against the PA and Jibril Rajoub.

Abdullah’s case and other similar cases brought have endured a legal odyssey since 2001. The PA has argued that it has the same legal status as a state, hence it enjoys the immunity of a foreign government. The Israeli courts ruled that Israel does have the legal authority to hear these cases, though it is conditional upon “a foreign minister’s certification.” This means that the foreign minister has the jurisdiction to decide whether sovereign immunity applies to the PA on a case-by-case basis. When the Foreign Ministry issues a certification in a certain case, it effectively decides that the PA does not enjoy the diplomatic immunity of a state, and that it could be named as a defendant in an Israeli court.

Yossi Arnon, an attorney for the PA, appealed this ruling to the Supreme Court, which took four years before finally striking it down. Two judges from the Jerusalem District Court — Boaz Okun and Aharon Farkash — took it upon themselves to devote their exclusive attention to all these sensitive cases before they came before Drori. In the case over which Drori presided, both sides began presenting evidence while arguments were also heard over the PA’s legal status.

In his ruling, Drori said the abduction amounted to an unlawful arrest. He ruled that Abdullah had been illegally detained, since there was no warrant or probable cause presented. The PA’s claims that it was immune to lawsuits due to its sovereign status were rejected after then Foreign Minister Tzipi Livni gave her approval to issue certifications in the case.

The PA’s position that its own courts should hear the case was also rejected. Nonetheless, Drori was faced with a tricky predicament, as he had to rule on the issue of whether the PA had the authority “to deal” with suspects like Abdullah by dint of Palestinian law and the stipulations of the Oslo Accords. His precedent-setting verdict rules this out completely.

The PA’s attorney tried to question Abdullah to determine whether he was indeed a collaborator, but Drori ruled this line of questioning impermissible. The judge said the PA’s suspicions against Abdullah had no relevance to the charges against the PA. Arnon, the PA’s attorney, acknowledged that Palestinian law provides a maximum penalty of death for anyone convicted of collaborating with Israel. In light of this reality, Drori said: “One cannot ask a witness, who finds himself under the Israeli flag and the symbol of the state, to risk his life and expose himself to danger by being tried and having his freedom denied for many years or terminated altogether.”

The PA submitted three sworn affidavits to the Jerusalem District Court, signed by three of its officials, who agreed to submit to questioning by Abdullah’s attorney, Haetzni. The PA acknowledged that it detained Abdullah in the south Hebron hills after Haetzni produced a letter to the effect signed by a member of Rajoub’s security unit. The letter orders that Abdullah’s car, which was taken along with him, be returned to him.

But the PA denied that Abdullah was tortured. It also denied that it was involved in the second abduction in Jerusalem. Abdullah, however, produced witnesses that corroborated his claims and identified his abductors as PA personnel. One witness was a young schoolgirl who described the kidnapping, and the other was a friend who was waiting for him at a Jerusalem junction not far from where he was abducted.

“We crossed the highway and we continued walking,” the schoolgirl testified. “Then a white car pulled up. Three men got out of it. The driver stayed inside, and he was wearing a mask. The other three approached the teacher, grabbed him, and covered his mouth so that he couldn’t scream. The people began to punch the teacher and slap him. They quickly shoved him into the white car and then sped away.”

The second witness, a friend of Abdullah’s, spotted one of the kidnappers, whose first name he knew and whom he recognized as someone who had been seen wearing a uniform belonging to the preventative security service. That same friend was also asked to pick up Abdullah near a Palestinian checkpoint at a junction near Bethlehem in May 2000. He testified that he saw Abdullah’s captors remove him from a car carrying red-colored license plates that also bore a Palestinian flag. The court determined that Abdullah’s testimony was credible, as was that of his friend.

The court ruled that there was a solid factual basis to support claims of “unjust assault as it relates to the abduction as well as the detailed description of the torture and abuse offered up by the plaintiff.”

In light of this, the court ruled that the PA had wronged Abdullah, and was liable “due to the various forms of violence that were applied against him, including torture.”

By setting this legal precedent, the Jerusalem District Court effectively codified in its verdict a principle that is stipulated in agreements signed between Israel and the PA. According to the interim agreements, the PA is not permitted to arrest Israeli citizens, irrespective of the suspicions against them, since it lacks the jurisdiction to adjudicate cases against them.

The court reminded the PA how it should behave in cases where it suspected that a citizen of Israel had wronged it criminally. According to agreements signed, “[The] Palestinian Authority will not arrest Israelis, nor will they hold them in custody. Israelis can present themselves as such by showing their Israeli IDs. Nonetheless, in the event that an Israeli commits a crime against a person or property in [Palestinian-ruled] territory, the Palestinian police can detain the suspect upon arriving at the scene of the crime while protecting his or her safety and that of all of those involved until the arrival of the Israeli military authorities.”

The judge ruled that the PA also violated its legal obligations as stipulated by Israeli law and the agreements it signed with Israel. Drori ruled that the PA and Rajoub held “authoritative responsibility” in Abdullah’s case.

In its ruling on Rajoub, the court ironically cited testimony delivered by the PA which stated that its operatives received instructions from Rajoub. Drori also rejected the PA’s claims that the civil suit was illegitimate since this was a “state act” that was carried out by an “authoritative” body.

“Since the PA is not entitled to the immunity of a state, it is clear that it is not a state nor is it a state-like entity,” Drori wrote. The judge rejected the PA’s argument that this was a “diplomatic, administrative, international case that needed to be heard in international forums and that the Israeli courts had no authority to hear it.”

“This court is hearing a lawsuit that was submitted to it and which demanded damages as compensation for physical harm,” the judge wrote. “The defense case also includes arguments that are acceptable in the field of civil law.” Ironically, Drori cited a verdict from a case that the PA argued served as precedent backing up its claims that this was a “diplomatic” case.

This was a legal battle over the status of the settlement of Elon Moreh. In that case, Supreme Court President Moshe Landau stated that while the settlement’s legality was controversial, the court could not avoid handing down rulings on issues pertaining to human rights.

Now, in light of the precedent-setting ruling issued by Drori, the road may have been paved for others who seek damages against the PA and who have been waiting for years to gain justice and compensation from the Israeli courts.

Arnon, the attorney representing the Palestinian Authority, criticized the verdict. “After the process presided over by Judge Drori ends, we will appeal his decision because his ruling is fundamentally misguided.” Arnon accused the judge of being one-sided, and said he had relied on “legal theories that don’t exist, things that do not belong in the verdict.”

“I’m accustomed to seeing the courts do everything they can to help those who sue the Palestinian Authority, but this case takes the cake,” he said.

He also claimed that he was able to prove that the first abduction took place in Area A (lands that are under full Palestinian civil and military control). As for the second incident, “the plaintiff did not prove that Palestinian Authority operatives were involved in the abduction in Jerusalem.”

“There is a law in the West Bank that says collaborators should be arrested,” he said. “There is also punishment handed down against those who commit this crime. Whoever is found to have been a collaborator could receive the death penalty. Unlike what the judge ruled, there is no need for an arrest warrant in the West Bank. The judge believed the imaginary descriptions of torture even though I was able to prove that he is a liar and a con artist. I caught him in a number of lies.”

Arnon said he had no moral qualms about representing the PA, though he was careful to avoid working on behalf of suspected terrorists.

Abdullah’s lawyer, Nadav Haetzni, said: “This is a shocking case involving a party that signed an agreement with us, supposedly a peace agreement, but in effect allows itself to kidnap and torture Israeli citizens on the basis of the weird claim that they are guilty of helping Israel. Finally, the district court ruled the obvious, that the Palestinian Authority has no right to kidnap, abuse, and at times murder Israeli citizens either in Judea and Samaria or from within the sovereign territory of the State of Israel.”

“For over 10 years, the Palestinian Authority, with the aid of its Israeli attorneys, has managed to lead the Israeli judicial system astray,” he said. “The fact that it took so long for this case to be decided reflects poorly on our system of law enforcement. This verdict shows that there is no immunity for senior officials in the Palestinian security forces who commit crimes. Let us hope that from now on the law will be applied appropriately in this area as well.”

View original Israel Hayom publication at:  http://www.israelhayom.com/site/newsletter_article.php?id=6583

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