On 4 Dec. '08, security forces evacuated the settlement in the a-Ras neighborhood (“the House in Dispute”) in Hebron. The same day, Kiryat Arba resident Ze'ev Braude shot and wounded three members of the al-Matariyeh family. The shooting, which took place in the Wadi Hussein section of Hebron, was filmed by Jamal Abu Sa'ifan with a camera he received in the framework of B'Tselem's camera distribution project. During the incident, another settler fired into the air and at Abu Sa'ifan and tried to grab the camera from him. A third settler fired into the air and at the family's house.
The footage of the attack. Filmed by Jamal Abu Sa'ifan, 4 December 2008
B'Tselem gave the video tape documenting the incident to the police the same day. Two days later, two of the suspects turned themselves in to the police and were subsequently released. One of them, Ze'ev Braude, was indicted on two counts of causing harm with aggravated intent.
The investigation material included evidence as to which the Minister of Defense signed a certificate of privilege, and the evidence was not provided to the defense. Braude's attorney filed an action in the Supreme Court, demanding that the privilege be removed and that he be provided the material. Justice Elyakim Rubinstein held that disclosure of the material is indeed liable to harm state security, but that the defendant's right to due process prevails in this case over the public-security interest. Justice Rubinstein pointed out that, “clearly, a skilled defense attorney could use the material for the benefit of his client, although, in fairness to the Respondent, it should be mentioned that, defense counsel's effort would not necessarily succeed.” The justice also stated that, “at face value, it appears that the privileged material would not completely undermine the Respondent's position. . . But I am of the opinion that, in certain circumstances, it could - and, again, it might be otherwise - change the decision in the file by raising a doubt; and it is not possible to conduct a fair trial where there is material that the defense does not have to opportunity to use it for its needs.”
The next day, the State Attorney's Office announced that it intended to withdraw the indictment against Braude, given that “the price paid by the public in revealing the material prevails over the public interest” in conducting the trial. Withdrawal of the indictment will enable a violent and dangerous person, who was documented committing an offense, to avoid punishment and continue to endanger human lives. If the state refuses to disclose the evidence, it must find other ways to bring Braude to justice. Withdrawal of the indictment is not a legitimate option.
Justice Rubinstein's commitment to the defendant's rights is welcome. However, the decision is unique, and the State Attorney's Office may indeed not have expected it would be required to disclose the evidence. Routinely, privileged material is submitted to the court in criminal proceedings against Palestinian defendants, and requests by their attorneys to disclose it are regularly denied. In balancing between security considerations and the right to due process, the balance always falls in favor of the former.
Privileged evidence also forms the basis of a long line of administrative decisions affecting other rights of Palestinians in the Occupied Territories. In May 2009, 449 Palestinians were being administratively detained in Israeli jails. Administrative detention is based on an order issued by the OC Central Command, and the detainees are not informed of the accusations or evidence against them. At no stage are they given the opportunity to refute the evidence, not even upon appeal to the Supreme Court.
Privileged evidence also forms the basis of decisions affecting the daily lives of Palestinians, such as rejection of an application to leave the region to study abroad, prohibition of a Jordanian woman to live with her Palestinian husband in the West Bank, or prevention of a detainee from meeting with his attorney for a prolonged period of time. When victims of such decisions petition the Supreme Court, they are not provided the evidence that formed the basis of the decision, and in the vast majority of cases, the petitions are denied after the justices examine the evidence in camera.
When read outside this context, Justice Rubinstein's decision is a wonderful example of respect for defendant's rights. It is to be hoped that this decision marks a change in treatment of privileged material as a basis for denying human rights.