The Governing Council of the Inter-Parliamentary Union,

Referring to the case of Mr. Hussam Khader, an incumbent member of the Palestinian Legislative Council, as outlined in the report of the Committee on the Human Rights of Parliamentarians (CL/178/12(b)-R.1), and to the resolution adopted at its 177th session (October 2005),

Referring to the case of Mr. Hussam Khader, a former member of the Palestinian Legislative Council, as outlined in the report of the Committee on the Human Rights of Parliamentarians (CL/179/11(a)-R.1), and to the resolution adopted at its 178th session (May 2006),

Referring also the report of the IPU trial observer, Mr. Simon Foreman, and the conclusion he had reached, namely that Mr. Khader "has not, since his arrest [in March 2003], had the benefit of compliance with the international rules of fair trial", and that "these shortcomings give the impression that Israel has, for the sake of combating terrorism, abandoned the idea of ensuring absolute respect in all circumstances for the physical and mental integrity of prisoners, which nonetheless is an overriding obligation, from which no exceptional circumstance allows any derogation",

Recalling that, in his letter of 27 April 2006, the Diplomatic Advisor to the Speaker of the Knesset provided comments on the report,

Noting the following observations bythe Committee on the Human Rights of Parliamentarians, which were shared with the Israeli parliamentary authorities in July 2006 for any further observations they may have:

1. Mr. Khader was tried and convicted based on his own admission that he was guilty of involvement in terrorist activity.
   • While it is true that Mr. Mr. Khader was convicted on the basis of his admission of guilt, it must be borne in mind that the prosecution was unable to prove the initial charges brought against Mr. Khader, which explains why the charges against Mr. Khader were modified and changed throughout Mr. Khader's two-and-a-half-year trial and a plea bargain was offered after all the witnesses had been heard¹. Indeed, at the time of his arrest, the statements implicating Mr. Khader which formed the basis of the charges against him did not exist, as the principal prosecution witness had not yet been arrested. According to his lawyer, Mr. Khader throughout the trial vigorously denied the charges and decided to plead guilty in the context of a plea bargain for two reasons: firstly, because before Mr. Khader's sentencing evidence from the main witness had already been deemed admissible in a separate case, not related to him, heard by the same judge. Mr. Khader therefore assumed that, given Israeli military court practice, he would be sentenced in any event and wanted to reduce the length of his sentence; secondly, given that under the amended charges Mr. Khader was no longer accused of personal responsibility for acts of violence, he agreed to plead guilty in the context of the plea bargain.

2. As regards the assertion that Mr. Khader's family was unable to gain information regarding his whereabouts, it should be noted that the Israeli Defence Forces (IDF) has a detentions operations centre which provides information to all those seeking to locate detainees. The existence of this centre is well known and it could have been easily approached to obtain information about his exact whereabouts.

   • Mr. Khader's lawyer provided the following information in this respect: an IDF detention operations centre exists, however, it provides neither lawyers nor prisoners' families with accurate and immediate information and it does not have Arabic-speaking staff. In reality, it is known by families and lawyers that this centre cannot, and does not, provide information on detainees' whereabouts. According to Israeli law, the Authorities are meant to call the family of the arrested person and inform them where the person is being held - but this does not happen. Likewise, the arrested person has the right to call his family and tell them where he is - but this also does not happen. Usually lawyers call the Israeli human rights organization Ha'Moked – which provides a service to families and lawyers to follow up on where people who have been arrested are being held. Ha'Moked usually obtains information after 48 hours of following up on a person's whereabouts after arrest. According to Ha'Moked, it is usually only after 48 hours that the IDF information centre has information on the arrested person's case. As noted in Mr. Foreman's report (see paragraphs 9, 11 and 34), Mr. Khader's lawyer was unable to find out his client's whereabouts on a number of occasions when he indeed "disappeared".

3. As regards the period of detention before Mr. Khader was brought before a judge, it is correct that this period was longer than the normally permitted period of eight days. At the particular time of Mr. Khader's arrest, however, in the light of the especially grave security situation, it was permitted - as a temporary measure - to bring a suspect before a judge within 12 days of his arrest. Mr. Khader was brought before the judge 10 days after his arrest, i.e. within the legally permitted time limit.

   • Under international human rights standards, 10 days of detention before being brought before a judge is not an acceptable period of time, even as a temporary measure.² In its General Comment No. 8, paragraph 4, the Human Rights Committee established under the International Covenant on Civil and Political Rights (ICCPR) to which Israel is a party, states that persons detained for reasons of public security and charged with public security offences, must enjoy the full protection of Article 9, paragraph 3, and Article 14 of the ICCPR. The United Nations Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism has therefore expressed concern at the provisions in the newly adopted Law 5767-2006 "Criminal Procedure (Enforcement Powers-Detention) (Detainees Suspected of Security Offences) (Temporary Provision), which provides that an individual detained for security reasons may be held for up to 96 hours before being brought before a judge.

4. Regarding the issue of Mr. Khader being kept incommunicado, it should be noted that most legal systems seeking to confront terrorism include some provision permitting the prevention of meetings of suspects with their lawyers for a limited period of time for the purpose of conducting questioning and investigation. All such measures in the case of Mr. Khader were conducted in accordance with the guidelines set out in Israeli law.

   • The right of detainees to meet with a lawyer is guaranteed under Article 14, paragraph 3 (b), of the ICCPR to which Israel is a party and supersedes any conflicting national law. Israeli security legislation allows the authorities to deny the right to access to a lawyer to detainees held for security reasons for a period of up to 21 days. In his comments on the newly adopted Law referred to above which maintains the 21-day period, the Special Rapporteur held that this is incompatible with international human rights law. He recalled that the right to liberty of the person as enshrined in the ICCPR requires access to legal counsel immediately after arrest.³ If domestic legislation is contrary to this requirement, it should therefore be amended.

5. No claim of &luote;cruel, inhuman or degrading treatment"e; was raised by Mr. Khader during the entire judicial process. Claims of mistreatment were raised by witnesses but, as Mr. Khader's conviction was based on his own admission, there was no room for the legal system to delve into these indirect claims.

   • At the trial hearing held on 29 June 2005 at which Mr Foreman was present, Mr. Khader addressed the court and, according to his lawyer, stated the following regarding his treatment in detention: he had been kept awake and denied sleep for days at a time, and was often unaware of whether it was day or night. At one point he was held in the secret prison, Facility 1391, where he said it was dark all the time. On many occasions, intelligence officers came into his cell while he was sleeping; he was forced to stand up, face the wall and a bag was placed over his head. His hands and legs were tied (in what is known as the shabeh position) and he was sometimes kept like this for up to two days at a time. He was given very little food and water and therefore felt very weak. He was also often not permitted to go to the toilet. In a statement of 16 June 2006, Knesset member Dr. Jamal Zahalka stated that he attended a number of trial hearings and had heard Mr. Khader describing to the Court the inhuman treatment to which he had been subjected.

   • Moreover, Mr. Khader's lawyer affirms having raised during the trial the issue of the illegal torture and inhuman treatment to which his client had been subjected.

   • According to Mr. Khader's lawyer, the main prosecution witness, Mr. Amir Suwalma, stated in court that he had suffered torture and inhuman treatment, and that his "confessions" had been obtained under torture when he had been pressured during police interrogations to make false allegations against Mr. Khader. Mr. Khader's lawyer states in this respect that during the trial, he was denied the opportunity to question Mr. Amir Suwalma about the circumstances relating to his interrogation, in order to establish whether his confession was extracted under duress and coercion, as he stated to the court. The Court chose to believe the testimony given by Mr. Suwalma during police interrogation rather than the statements he made before the court.

   • Under Article 12 of the United Nations Convention against Torture which Israel ratified in 1991 "Each State Party shall ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction". This has not been done.

6. The report's suggestion that the nature of Israel's military legal system is "difficult to reconcile with Israeli law" is hard to fathom. The model of the military court system established by Israel in the territories is precisely that envisaged by Article 66 of the Fourth Geneva Convention. It should also be noted that the continued application of the current legal system was part of the agreed arrangements in the legal annex to the Israeli-Palestinian Interim Agreement.

   • in his comment, the Diplomatic Advisor misquoted the report as Mr. Foreman did not write that Israel's military system was "difficult to reconcile with Israeli law" but "difficult to reconcile with the development of international law" (paragraph 57). In paragraphs 42 to 47 of his report, Mr. Foreman acknowledges that a military legal system is envisaged under Article 66 of the Fourth Geneva Convention, and discusses its purpose and conformity with the development of international law since the adoption of the Convention in 1949.

7. Finally, with reference to the claim that evidence was concealed, it should be pointed out that in every legal system it is possible, within the limits of the law, to prevent the introduction and use of certain confidential material. The Court was approached by the defendant's lawyers requesting the removal of secrecy and denied the request. However, had the material contained evidence exculpating the accused, by Israeli law, the State would have been obliged to provide this to Mr. Khader.
   • The Committee concurs with Mr. Foreman's view, as expressed in paragraph 49 of his report, that it is not for the prosecution but for the defence to appreciate whether evidence is useful for the defence or not. In any event, fair trial guarantees must be in place to ensure that proper use is made of any such provision. This does not seem to have been the case in this instance. Motions filed by the defence asking for the disclosure of the secret evidence allegedly compiled against Mr. Khader, since such material could be exculpatory, were rejected by the appellate military court. As stated in Mr. Foreman's report, some of the confidential information and secret evidence which purported to incriminate Mr. Khader was proved to be false and Israeli General Security Services (GSS) agents admitted in court that some of the evidence and witness statements had been fabricated.

Noting the following: according to the sources, Mr. Khader's conditions of detention have worsened since April 2006, particularly regarding the right to receive visits, letters and medical care (Mr. Khader is said to continue to suffer from severe back pain for which he reportedly does not receive the necessary medical treatment); accounts for prisoners to receive small amounts of money have reportedly been closed and he may therefore not have the means to buy food and basic supplies; in September 2006, Mr. Khader reportedly contracted a bad skin infection from another prisoner; he was seen by the prison doctor and given an injection, but is still suffering badly from the infection; his lawyer has asked for him to be either allowed to see a medical specialist or transferred to the prison hospital for adequate treatment, which the authorities refused; he is said to be currently held in solitary confinement for a period of three weeks as he was caught passing on something he had written; in this respect the source stated that he writes regularly from prison; his mother and children have managed to visit him approximately every four to six weeks, although each time they must apply for a permit, which is not always given; according to prison regulations, his children can only visit him if accompanied by an adult family member; his family has reportedly not received any messages or letters from him for months and he has also not received letters sent to him by his children and family; his brother died two months ago and, contrary to usual practice, he was allowed only two weeks later to talk to his mother and his brother's children,

1. Maintains its view, in the light of Mr. Foreman's report as trial observer and the Committee's observations on the comments made by the Diplomatic Advisor to the Speaker on Mr. Foreman's report, that Mr. Khader was not given a fair trial;

2. Calls once again on the Israeli authorities to transfer Mr. Khader without delay to the competent Palestinian authorities;

3. Notes with concern that the Israeli authorities have so far not fulfilled their duty under the United Nations Convention against Torture to investigate the evidence given in court by Mr. Khader and the main prosecution witness that they were tortured and ill-treated;

4. Is concerned at Mr. Khader's state of health and trusts that the Israeli authorities will fulfil their duty to provide him with the requisite medical treatment; is also concerned at the alleged restrictions on family visits, and would appreciate receiving the observations of the authorities on this point;

5. Reiterates its wish for a Committee member to pay a private visit to Mr. Khader in prison, and requests the Secretary General to pursue his contacts with the Israeli parliamentary authorities in this respect;

6. Requests the Committee to continue examining this case and report to it at its next session, to be held on the occasion of the 116th Assembly (April-May 2007).

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1 - According to Lisa Hajjar "Courting Conflict: The Israeli Military Court System in the West Bank and Gaza", University of California Press, 2005, in most cases before the military courts, a plea bargain is discussed and negotiated before any witnesses are heard, so that the court proceedings have little relation to the facts of a case. Approximately 90-95% of Palestinians brought before the military courts are convicted, and 97% of the cases are resolved through plea bargaining.

2 - Human Rights Committee, cases Fillastre and Bizouarn v. Bolivia (No. 336/1988), Mc.Lawrence v. Jamaica (No. 702/1996), Kurbanov v. Tajikistan (No. 1096/2002).

3 - United Nations, Press release, 4 July 2006.

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