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When the High Court has to intervene so a Palestinian family can mourn

After Israeli police shot and killed Yaqub Musa Abu al-Qi’an before demolishing his home, the state held onto his body for nearly a week. Only an appeal to the High Court allowed his family to bury their loved one.

Supreme Court justices at the beginning of the appeal for the state to release the body of Yaqub Musa Abu al-Qi'ian, January 23, 2017. (Hadas Parush/Flash90)

Supreme Court justices at the beginning of the appeal for the state to release the body of Yaqub Musa Abu al-Qi’ian, January 23, 2017. (Hadas Parush/Flash90)

The only way to describe what took place on Monday in Israel’s High Court, during a hearing on a petition by the Abu al-Qi’an family demanding the police release the body of Yaqub Musa Abu al-Qi’an, is as a nerve-racking drama. For three hours, those present in the courthouse — police officials on one side, and members of the Abu al-Qi’an family and Arab leaders on the other, including half of the Joint List Knesset members — listened to the arguments put forth by both sides and tried to glean which direction the wind was blowing.

Here’s some background before we get to the case: Abu Al-Qi’an was shot and killed by police during home demolitions in the Bedouin village of Umm el-Hiran in the Negev last Wednesday. A close analysis of a video that captured the killing — as well as initial findings from the autopsy that were published by the media — indicate that he lost control of his car after being shot, only then running over and killing a police officer. The autopsy further showed that Abu al-Qi’an bled to death without receiving any medical help, which likely would have saved his life.

Israeli police were quick to disseminate their version of events following his death, according to which Abu al-Qi’an was an ISIS-supporting terrorist who tried to ram his car into security forces (the only evidence of which was that he had several copies of Israeli newspaper Israel Hayom in his home). The large question marks surrounding the incident did not stop Police Commissioner Roni Alsheikh and Public Security Minister Gilad Erdan from continuing to call Abu al-Qi’an a terrorist, all while the Department of Internal Police Investigations is still investigating the incident.

The police refused to release his body after the killing, holding on to it as a bargaining chip ֿto force the family to accept three conditions for the funeral: it would be held in the Bedouin township of Hura, rather than in Umm el-Hiran; the number of participants would be capped at 50 (Arab politicians and public figures would not be allowed); and it would have to be held late at night. The Abu al-Qi’an family, represented by Attorney Hassan Jabareen from Adalah — The Legal Center for Arab Minority Rights in Israel, were demanding that police immediately release the body and allow a proper burial in accordance with their religion and traditions.

Three Supreme Court justices discussed the petition: Justices Yitzhak Amit, Uri Shoham, and Noam Solberg. The first to speak was Attorney Avishai Kraus, who represented the police and repeatedly said that the security forces do not oppose holding a funeral. However, Kraus continued, according to both classified and unclassified evidence, there is fear that a mass funeral could pose a risk to public safety.

A funeral on the state’s terms

I sat there wondering how convenient it was for Kraus, a religious man, to defend a position that disrespects the honor of the deceased for days on end. But this question, it seems, did not bother anyone else. The court wondered how the police would prevent thousands of people from reaching the funeral, and whether preventing them from attending would only pose a greater threat. Kraus responded: “That is why we are asking to hold the funeral late at night, at short notice, so that people from the north cannot participate.”

Mourners at the funeral of Yaqub Musa Abu al-Qi'an, who was shot and killed by Israeli police in Umm el-Hiran last week, January 24, 2017. (Keren Manor/Activestills)

Mourners at the funeral of Yaqub Musa Abu al-Qi’an, who was shot and killed by Israeli police in Umm el-Hiran last week, January 24, 2017. (Keren Manor/Activestills)

Atty. Jabareen, who spoke after Kraus, said he rejected the police’s conditions, aside from the agreed-upon route of the funeral, from the mosque at Umm el-Hiran to the cemetery in Hura. Jabareen reminded the court that a few days earlier thousands of people demonstrated in Wadi Ara, and the police were able to keep order. Why, then, would the police not be able to do the same during the funeral?

“What they are proposing is a funeral with fewer participants than the number of people sitting in this courtroom,” he said. “Yes, thousands will participate. So will politicians and Arab leaders. They have the legal right to do so. In October 2000 we had a week of funerals in a much more tense political atmosphere. But they took place without any problems, because there was an agreement between the political leadership and the police that security forces would not enter Arab towns during the funerals.

“The police know no one will adhere to these conditions,” Jabareen continued. “Not a single person in Umm el-Hiran will agree to them. So the police are stalling, which in itself is leading to all this tension. They want to police the pain of our public. If they have real, substantial evidence for their claims, they should arrest those who they deem a threat to public security. But nothing in what has transpired since the killing demonstrates any such threat.”

Jabareen asked the High Court to make a distinct between holding the body — which he claims is illegal — and the conditions for the funeral, which must be discussed separately. The court decided to combine the two discussions, out of the presumption that even if the body is released, they will still have to discuss funeral arrangements. The second issue that arose in the hearing was far more complex: the police requested to present the court with classified evidence ex parte. While this is a very common occurrence in the military courts of the West Bank, it is rarer in Israel’s civilian courts, and requires the consent of the petitioners.

Dilemma

This request, and the (brilliant) response from Atty. Jabareen, accounted for much of the drama from that moment on in the courtroom. It exemplified, more than anything else, the gulf between the worlds of the petitioners and the defendants, i.e. the police. In the world of Israeli law enforcement, “classified material” is the magic term that slams the door in the face of the Arabs, who are always on the receiving end, and allows for the “matter to be closed” with the judges, ex parte.

Atty. Jabareen, by contrast, told the court that he had no intention of responding to such a request. This is evidence of the petitioners’ profound mistrust of the police, and the very expectation that Jabareen would trust them on the matter of “classified material” is unfounded.

“We have no faith in a police force which cried ‘ISIS’ within half an hour of the killing,” Jabareen told the court. “We are not under a military regime; classified materials have no place here.”

Attorney Hassan Jabareen, right, represented the Abu al-Qi'an family in the High Court, January 23, 2017. (Hadas Parush/Flash90)

Attorney Hassan Jabareen, right, represented the Abu al-Qi’an family in the High Court, January 23, 2017. (Hadas Parush/Flash90)

The drama heightened even further at this point: the court told Atty. Jabareen that should he refuse the submission of classified evidence, they would be forced to assume the worst — hinting that there was a good chance the petition would be rejected. Jabareen didn’t back down.

At this point Atty. Kraus point requested a five-minute consultation, following which he returned to his initial position: the release of the body to a tiny funeral. “You want a mass demonstration? No problem. Submit a request and we’ll examine it willingly and with an open heart.”

But the petitioners didn’t request to organize a demonstration. They requested to hold a funeral for a member of their family whose body had been held for nearly a week by the people who killed him. The court once again implored Jabareen to allow the judges to take a look at the classified evidence, upping their hints that were he to disagree, the petition would be rejected.

The dilemma seemed an impossible one, and Jabareen requested a five-minute break in order to consult. There was clamoring among the Knesset members and other representatives, making it clear that they had not arrived at a unanimous decision. At the end of the short break the judges returned to the courtroom and waited — along with the tense group of attendees — for Jabareen to speak. He announced that he would be sticking to his principles. “I understand the potential consequences, and I take them very seriously. But I cannot create this precedent. This is not a military government,” he said.

I closed my eyes and thought, “there goes the petition.” The words “classified material” have an almost bewitching effect on judges in Israel, and they were near-unanimous in their declaration that if the petitioners didn’t comply, their appeal would likely be rejected. Was it a calculated risk on Jabareen’s part? And was his obligation to the petition’s success greater than his obligation to his principles, which are what led him to represent the petitioners in the first place?

But just as the matter seemed to be closed, Atty. Jabareen requested that the court hear from MK Taleb Abu Arar, another petitioner. The judges made a show of grudging consent, and MK Abu Arar opened with a brief speech which, it turned out, proved to be the decisive factor in this story.

Abu Arar, who had also taken part in negotiations with police over this matter, addressed the court with great emotion. “I am a resident of the Negev, a Bedouin. I was the first to arrive at the scene of the event that day. Abu al-Qi’an was killed three times: once by gunfire, once when he was turned into an ISIS terrorist, and once when you held onto his body,” Abu Arar said.

Thousands of people took part in the funeral of Yaqub Musa Abu al-Qi'an, who was killed by Israeli police last week in Umm el-Hiran, January 24, 2017. (Faiz Abu Rmeleh/Activestills)

Thousands of people took part in the funeral of Yaqub Musa Abu al-Qi’an, who was killed by Israeli police last week in Umm el-Hiran, January 24, 2017. (Faiz Abu Rmeleh/Activestills)

“I am very familiar with the proposed funeral route. Even the police know it well. The family members don’t want a political demonstration, they want a religious burial. As Arab elected officials we are responsible for keeping order, and the police know that we are capable of doing so!” he continued.

“The route passes through empty, unpopulated land, there are no Jews there whatsoever. Who do they think we’re going to shoot at, ourselves?!”

There was silence when Abu Arar finished speaking. His emotive speech had had an almost physical effect. The judges conferred briefly in their seats, before Justice Amit turned to Kraus, the lawyer for the police, and said: “We’re giving you an hour. Think about things carefully, and perhaps you will manage to come to an agreement.”

‘Concerns over public order are not the issue here’

The hearing recommenced after an hour, with Atty. Kraus announcing that the two sides had failed to agree on the terms of the funeral. Atty. Jabareen said that they had proposed to the police to restrict the funeral to two hours, and had also offered to arrange for stewards. “But they insisted: ‘hold a demonstration of 100,000 people, but not at the funeral.’ So it’s clear that concerns over public order are not the issue here,” Jabareen said.

With no agreement between the sides, Justice Amit ended the hearing and the judges went to make their decision, with no clear indication as to how long it would take. In the end, it arrived sooner than expected, and took everyone by surprise: the court accepted the petition in its entirety with a majority of two, with a minority opinion from Justice Solberg. They ordered the body to be released and for the funeral to be held on Tuesday during the day, with no restrictions on the number of participants.

In response to the outcome, Adalah said: “From the outset, we maintained that the police have no authority to hold a body as a bargaining chip and that the police’s policy — particularly in light of the events that took place in Umm al-Hiran — was unlawful.”

“The claims made by police in this case are part and parcel of the police force’s culture of lies when it comes to Arab society in Israel,” the statement continued. “The police continue to view Arab citizens as enemies and it is a positive development that this ruling makes clear that there is no legal basis for the police’s conduct.”

I’m not sure that this laconic response conveys the intensity of the satisfaction felt by those who were in court on the side of the petitioners on Monday, and the amazement at Atty. Jabareen’s brilliant performance. Even though he at times seemed to have lost the battle, he insisted on sticking to his principles, refusing to play by the rules the police were attempting to impose on him and on the court. He proved that even in the High Court, justice sometimes can be served for the Palestinian side.

Perhaps this will bring some small relief to the pain of Abu al-Qi’an’s family, which finally won the right to lay their loved one to rest. And perhaps next time a family won’t be made to show up at the Supreme Court in order to realize such a basic, humane right.

This post was originally published in Hebrew on Local Call. Read it here.

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    COMMENTS

    1. carmen

      Uplifting story, among so many that aren’t. Congratulations to the family and to Hassan Jabarin. Righteousness prevailed –

      Reply to Comment
    2. Jim KABLE

      The current (and past) Israeli government is a sham. It’s time to hand over government to Palestinians in a return to a one-state nation – with reparations and restitution from the undemocratic Jewish state to all Palestinians who have suffered theft of houses and land, destruction to buildings and farms – theft of water and other resources since the late 1940s – and loss of life – in police and military attack. Let all foreign-born Israelis remain if they so wish – but without privilege – or return to the countries of their birth or other countries prepared to accept them.

      Reply to Comment
      • R5

        Netanyahu thanks you for that.

        Reply to Comment
      • AJew

        Spoken like a true extremist.

        What our kable guy is suggesting is known as a gambit claim. Another name for it BLUFF born out of a position of weakness. Sorta like, give us your arms and legs and we will take pity on you if you behave.

        LOL 😝

        Reply to Comment
    3. AJew

      Ambit claim.

      Reply to Comment
      • AJew

        Oh and an ambit claim means that the claimers are going to accept much, much, much less ambitious and more realistic solutions at the end. We know that coz we were not born yesterday even though kable guy would like to think that we have been 😛

        Reply to Comment