IDF West Bank courts system grinds to a standstill

The IDF Military Courts in Judea and Samaria have been shaken to their foundations and brought to a halt in a political and legal battle over the arrest of east Jerusalem lawyer Tarek Barghout and his wife.

Recent hearings, including the trial against the alleged murderer of Ari Fuld and the appeal of a partial acquittal for the attempted stabbing murder of Nirit Zamura, have been postponed along with other hearings across the board, as the defense lawyers for Palestinians protest the arrest of one of their own.

Barghout was arrested on February 27 along with his client, a Fatah strongman named Zakariya Zubeidi, on still unspecified terrorism charges, since the case is under gag order pending the Shin Bet’s (Israel Security Agency’s) investigation.

Although a lower IDF Court has ordered Barghout’s wife to be released, his lawyer – Lea Tsemel – said that as of Wednesday, the IDF has appealed and her release has been stayed for at least 48 hours pending the appeal.

But according to multiple sources as well as a recent television interview by Palestinian official Jibril Rajoub, there may be more than meets the eye, and all of this may be at least a partial show masking a secret internal war between various Palestinian factions.

Barghout may be a casualty of a broader internal Palestinian war between the Palestinian Authority Ministry of Prisoner Affairs and the Prisoners’ Club. The Prisoners’ Club is entirely controlled by Fatah. The ministry, though affiliated with the Fatah-run PA, is supposed to also represent Hamas and other factions’ interests.

There have been a number of fights for control over the ministry and positions there, and Barghout recently tried to go for the top lawyer position.

Some of the fights have led to the firing of Palestinian lawyers who regularly practice in the IDF West Bank courts or to months of delay in receiving pay.

Barghout may be a casualty of this battle, with Palestinian adversaries informing on him to the Shin Bet.

It is also possible that Barghout is a casualty of battles between Zubeidi and other Palestinian factional adversaries who may have informed on Zubeidi to the Shin Bet, with Bargout getting swept up in that broader fight.

If Barghout is even partially a casualty of these internal battles, it does not say anything about his innocence or guilt. It only means that whether he is innocent or guilty, he might not be in the position he currently is in if he had not gotten caught in the internal Palestinian cross fire.

Either way, once the Shin Bet arrested one of their own, all of the lawyers for Palestinians went on strike, halting everyday business at the courts.

Tsemel said that the arrest of Barghout’s wife in particular is blowing up in the face of law enforcement as spiraling out of their control and beyond what they expected.

It probably does not help that the defense lawyers were already just recently in a conflict with the courts over the Israel Prison Service’s denying two Palestinian lawyers the right to bring cellphones into the court’s complex.

This came about in a dispute over the lawyers’ use of their cellphones to photograph a client who was allegedly injured in a battle between prisoners and security forces cracking down on prisoners’ concealed cellphones.

Regarding Barghout’s innocence or guilt, the Supreme Court on February 28 at least approved the Shin Bet preventing him from meeting with his own lawyer pending his continued interrogation. That does not mean he is guilty, but it does mean that the Supreme Court found the initial classified intelligence evidence convincing.

Barghout also does not have an entirely clean record.

As an adolescent, sometime well over a decade ago and long before he became a lawyer, Barghout was convicted of throwing Molotov cocktails.

After becoming a lawyer, he was arrested for incitement for calling Ahmad Manasra – a 13-year-old Palestinian who stabbed a 13-year-old Jew during the Knife Intifada – a hero, but was never prosecuted.

But this does not represent most of Barghout’s reputation.

Despite these incidents, Barghout has worked for over a decade as a lawyer defending Palestinians in the IDF courts.

According to former chief prosecutor Lt.-Col. (res.) Maurice Hirsch, Barghout handles a combination of clients accused of more serious security offenses as well as minors accused of stone throwing, including a fair number of female defendants He generally does not defend Palestinians merely accused of illegally crossing the border, which is a sizable volume of the court’s cases.

He is viewed as being affiliated with Fatah clients and not Hamas clients, which other lawyers handle.

Hirsch’s bigger complaint with Barghout until now would have been that he says Barghout lacks familiarity with the law he is supposed to be an expert in.

However, Hirsch said he was not surprised by the allegations and that he thinks Barghout, “truly believes in nationalistic-terrorist activity and supports it.”

Though Barghout had what is considered a win for Palestinian lawyers when he got a partial acquittal in the case over the murder of IDF Maj. Eliav Gelman, Hirsch said that most of the decision was the court understanding the complexity of the facts. He said Barghout got lucky to land the case.

Barghout was also representing the Palestinian accused of murdering Ari Fuld, though now that trial will likely be delayed for months as there may be a need for a new defense lawyer.

According to Hirsch, it is rare for Palestinian lawyers to be arrested, but it has occurred before.

He named Fares Abu Hassam, who ran a law practice for Hamas, and Muhammad Abed, who passed messages between Hamas prisoners and contacts on the outside as, both having been sentenced to serve prison terms.

“The prosecution of lawyers in general is a very sensitive subject. Even the decision to open an investigation against a lawyer – unless he is caught in the act of committing a crime – is subject to prior approval by a district attorney,” said Hirsch.

He said that there had been a past case where an Israeli lawyer was suspected of receiving funds from Hamas, but that the district attorney vetoed the case viewing it as a sensitive gray area.

Hirsch also noted that it was unclear whether Barghout would eventually be prosecuted in the Jerusalem District Court as a resident of east Jerusalem or would be kept in the IDF West Bank courts along with Zubeidi, who resides in the West Bank.

Another legal question is whether the IDF will seek to prosecute Zubeidi only for current alleged crimes or also for murders that he was given a conditional pardon for in exchange for renouncing violence following the Second Intifada.

The IDF referred inquiries to the Shin Bet until the investigation concludes. The Shin Bet refused to comment, noting the case is still under gag order.

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