Poet Dareen Tatour’s trial: Despite objections – another prosecution summary

(This article first appeared in “+972”. Different Hebrew versions appeared in “Local Call” and “Haifa Ha-Hofshit”).

Like a cartoon character who runs over a cliff but continues to run in the air, or like Achilles who thought he could pass the tortoise easily but each time he got close, the turtle moved a bit further away, so is the trial of Dareen Tatour, a Palestinian poet who has been detained since October 2015 — defying gravity, looking like it will never end.

Dareen Tatour and supporters after trial 18 Feb 2018

Dareen Tatour, Gaby Lasky and supporters after the hearing

After the last witness testified, back in April 2017, Judge Adi Bambiliya-Einstein decided that the parties should submit written summaries within three months. In September, Tatour’s defense attorney, Gaby Lasky, asked to present new evidence, and the issue was brought before the judge on November 15. On that occasion, the judge accepted a request by the prosecutor, attorney Alina Hardak, to supplement the written summaries with oral closing arguments.

After several postponements, a court hearing was scheduled for the additional summaries on Sunday, February 18. In response to Lasky’s request to set the hearing a little late, considering that she must arrive from Tel Aviv to Nazareth, the judge set it to 8:30 am. On Sunday morning, at 8:30, Tatour arrived with her father, the defense attorney and about fifteen of her supporters at the courtroom’s door, which finally opened at 8:45.

The prosecution’s extra show

The prosecution submitted 43 pages of written summaries. The defense managed to shorten its arguments and squeeze them into 83 pages. The initial justification for the extra hearing had been the new evidence.

And yet there was not much new evidence.

The prosecution convinced the court not to accept as evidence a screenshot from Tatour’s Facebook page showing that she initially published the profile picture with the caption “I am the next martyr” in July 2014, as a response to the murder of the teen Muhammad Abu Khdeir. It was rejected on technical grounds — the absence of a witness corroborating the authenticity of the image.

The second piece of new evidence related to the publication of a video accompanied by the lyrics of Tatour’s poem, “Resist My People.” The defense brought evidence that the same video was later posted by Israeli Culture Minister Miri Regev on her own Facebook page. That no legal steps have been taken against Regev, the defense argued, constitutes proof of discriminatory prosecution. The arguments on this matter lasted less than a minute, out of an hour and a quarter of the prosecution’s closing arguments.

On the other hand, the prosecutor used the event to repeat that which she had already detailed at length in the written summaries. She tried to present the poem, “Resist My People,” as part of the wave of attacks by Palestinians in October 2015.

The defense insisted that the poem is a legitimate expression of protest, which speaks about the occupation’s violence against innocent Palestinians. The defense based its arguments on specific events that were mentioned in the poem: the children who were burned; Hadeel, who was shot; the settler’s robbery; and the violence of the army’s special undercover units.

The prosecutor focused on what she thought was clear to every “average person”—the Israeli worldview that sees every Arab, and especially whoever opposes the occupation, as a dangerous terrorist. During the trial the prosecution screened gory videos of Palestinian attacks, under the pretext of checking the skill and objectivity of the defense’s translator. This time, to refresh the judge’s memory, the prosecutor began to read aloud in court a list of attacks by Palestinians that took place in October 2015. Defense Attorney Gaby Lasky objected, which the judge accepted — a rare occasion in this court.

According to the prosecution, the publication of the photo “I am the next Martyr” was part of a systematic pattern of encouraging suicide attacks. The fact that the picture was first published in response to the burning of young Abu Khdeir, of course, should have been conclusive proof that Tatour speaks of the martyr in the sense of a victim rather than an attacker. However, as mentioned, the prosecutor managed to have that evidence stricken. Now she wanted “to prove” that this image was first published in October 2015.  During the trial, the prosecution claimed (and Tatour consistently denied) that this picture first appeared next to the picture of Israa Abed, who was shot at the central bus station in Afula on October 9, 2015, after she was wrongfully suspected of intending to carry out an attack. The prosecution used this false claim as proof that it couldn’t have been published by Tatour earlier. On the basis of this circular argument, the prosecutor even dramatically declared that Tatour was “lying brazenly,” which led to another objection by Lasky.

A whole section of the defense summaries focused on the importance of preserving freedom of expression, especially political and artistic expression. On top of many legal precedents, the defense also quoted international conventions to which Israel is a signatory. One of the cited documents was a joint declaration of 57 countries issued in September 2015, before the 30th session of the UN Human Rights Council, which relates to the freedom of artistic expression. The prosecutor claimed that this declaration is not legally binding and that, in fact, Israel’s support of it has no practical value. She even said that this was the position of the State Attorney’s Office Department of International Law. Lasky requested to see this legal opinion. It may be time that Israel’s partners to this statement also begin asking questions.

Was the prosecution authorized to file the indictment?

The indictment accuses Tatour of two crimes: incitement to violence and support for a terrorist organization. These two articles, by nature, restrict freedom of expression, and therefore such indictments require the approval of the attorney general. In practice, the prosecution only submitted to the court approval from the attorney general for prosecuting Tatour for “incitement to violence.”

It is worth noting that the excessive sensitivity to freedom of expression in Israel’s legal system is applied mainly to the freedom of expression of settlers and other anti-Arab extremists. Therefore, in cases of this type, the defense often quotes cases of right-wing activists who were acquitted despite serious violent statements. The judges, for some reason, have no difficulty telling the difference; when the accused is Arab, they use entirely different criteria.

Lasky argued in her written summaries that in the absence of the required authorization, the part of the indictment that deals with support for a terrorist organization should be considered null and void. She cited precedents of indictments that were dismissed due to lack of such authorization, and showed that such decisions can be made even in the late stages of a trial.

In response to these claims, the prosecutor drew a rabbit from her hat. She presented to the judge a letter which, she claimed, proved that a deputy state attorney approved indicting Tatour for supporting a terrorist organization. Lasky was furious at how the prosecutor suddenly presented a document that had not been submitted to the defense as part of the investigation materials. The prosecutor explained that this was an internal correspondence with the State Attorney’s Office that was not part of the investigation materials. The judge gave Lasky the letter so she could look at it, but the prosecutor snatched it from her hands, claiming Lasky was not allowed to see it.

For a few minutes, a dramatic struggle took place between the prosecutor and the defense attorney, partly as a shouting match and partly by dictating arguments for the court’s records.

Lasky argued that the accused could not be convicted on the basis of materials she had not been allowed to see. The prosecutor gradually withdrew, saying she was ready for Lasky to see the letter but not photograph it. The judge made it clear that if the letter was indeed attached to the case, it would be scanned and accessible for the defense. The prosecutor sought to consult with her superiors, and argued that the entire issue of the necessary approval is an internal procedure that does not oblige her to present approval to the court, and that the court should be satisfied with her declaration that the indictment was submitted with the necessary authority.

Finally, the same letter was presented again to the judge. It was clear that it was not actually an authorization by the attorney general. The judge announced that it would also be given to the defense, which would probably refer to it in her response to the prosecution’s summaries.

Five minutes

Dareen Tatour and supporters waiting for trial 18 Feb 2018

At 8:30 Dareen, Lasky and 15 supporters were already waiting at the court’s door

The hearing was supposed to last an hour and a half. Starting 15 minutes late, after an hour and a quarter of the prosecutor’s summaries, it was already 10 o’clock. Some litigants that were scheduled to appear before the same judge were already waiting in the courtroom. The judge told Lasky: “You have five minutes to summarize.” I still wonder whether she meant this seriously or in jest.

Lasky used the few minutes she had to object to the whole procedure of the supplementary summaries. She reviewed the sequence of events, how it was decided that the summaries would be delivered in writing, followed by the verdict, with no room for further summaries. The nature of the criminal proceeding, she said, citing from legal textbooks, is such that the prosecutor summarizes first, then the defendant is given the right to the last word. There was justification for supplementary summaries because of the additional evidence, but that is not what happened. Lasky demanded to cancel the entire procedure.

In the event that this request is rejected, Lasky explained that she cannot respond without preparation and examination of the prosecution’s new claims, which include references to different court rulings and minutes of Knesset deliberations designated to clarify the legislator’s intention. She said she would prefer to submit a written response.

The judge and the audience

This prolonged and absurd trial always leads to new surprises.

At a certain stage, during the stormy debate over the submission of the letter ostensibly proving that the indictment had been approved, journalist Ofra Yeshua-Lyth, who was sitting next to Tatour, remarked out loud: “Write it down, it was not recorded in the protocol.”

The judge stopped the hearing and asked: “Who said that?”

There was silence in the courtroom and then Ofra said “I”, already prepared to be thrown out of the hall for disturbing the hearing.

However, in lieu of the expected scolding, the judge told Ofra that she should not worry and that the trial was conducted with great fairness.

Since discussion between the judge and the public had been legitimized, Ofra added that she had examined the minutes of the trial and that not everything that was said in the courtroom was recorded.

The judge patiently explained her policy regarding writing the protocol: She explained that there was a heated debate between the prosecution and the defense, and that only what was of legal value was recorded. When some of the audience repeatedly argued that important things were not recorded, the judge replied that if something important was missing in the protocol, the defense could file an official request for its amendment.

Toward the end of the hearing, another activist, Bilha Golan, remarked: “this is a political trial”. In response the judge resumed the rare dialogue with the public. It was, in essence, a lecture by the judge – not to be mentioned in the protocol, of course – designed to prove that this was a fair process whose sole purpose was to enable her to judge objectively, according to the facts presented to her.

“Everyone is here to examine the truth”, the judge claimed. She explained patiently – again – and even said she was talking to us as she sometimes spoke to her children. She even claimed that we were hurting Tatour. According to her, by our one-sided approach, we made Tatour feel that the process was unfair and that she had been wronged!

Activist Hana Safran took the opportunity to remind the judge that while the trial was being held, Tatour’s life had been put on hold for more than two years. Even if she is eventually acquitted, she has suffered greatly – and no one can undo that suffering. The judge replied that the matter of house arrest was not her responsibility, but was rather determined in another proceeding by different judges. The audience remarked that in both processes there is the same prosecutor, but the judge replied that the prosecutor did not rule. She said that anyone who wants Tatour to be released should apply for it in the parallel procedure. Perhaps this judge is unaware that judge Idris, who is responsible for Tatour’s detention, rejected the latest request to revoke her house arrest — without even scheduling a hearing.

What next?

As expected, the judge rejected the defense’s objection to the proceedings.

She told Lasky to choose between summarizing on the spot, and promised that she would stay until the middle of the night to hear her arguments, and presenting written summaries. In the end, she gave Lasky seven days to submit a written response.

Only after receiving these summaries will the judge set a date for announcing the verdict. Until it is given, Dareen Tatour will have lost more than two and a half years of her life to prison and house arrest.

 

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Poetry is poetry, and is immune to prosecution

By Ofra Yeshua-Lyth – Originally appeared in HaOketz in Hebrew on March 21, 2017

Translated by Idan Kramarge Bar-Haim

Professor Nissim Calderon testified in the show trial of poet Dareen Tatour: “In the Israeli tradition there is immunity to a poet who calls for illegal violence”; in Hanukkah we sing “As you shall prepare a massacre / of a barking foe”; in both the Tsarist regime and the mandate police poets who called for violence were not prosecuted, and no one prosecuted Ariel Zilber for supporting the murder of Yitzhak Rabin.

Arabic expert Dr. Yoni Mendel: “Tatour’s poem does not call for violence; the police translation is simplistic, not objective, and is meant to prove the poet supports violence”.

On March 19, 2017, the absurd show trial “The state of Israel against poet Dareen Tatour” has reached the defense witnesses stage. Two expert professors made all the way from the center of the country to explain to the prosecutor Alina Hardak and Judge Adi Bambiliya in the Nazareth court why the indictment that took away Tatour’s freedom since October 2015 is essentially baseless.Poetry is not a crime - Dareen Tatour

Literature professor Nissim Calderon wrote in his expert opinion that there is no place to incriminate any poet for a text he or she wrote, even if it was packed with harsh expressions.  Tsarist Russia, as well as the British mandate, and so far even  the state of Israel, left poets alone  also when their poems could be seen as a call or support for violence. Dr. Yonatan Mendel, an expert on the Arabic language with rich experience in translation, who stands at the head of the Van Leer institute for Jewish-Arab relations, determined in the document he presented that the poem an Israeli policeman decided is an “Incitement to violence” is actually an impassioned national poem, by the best tradition of the local language, without any call for taking arms or spilling blood.

The mills of justice grind slowly: The two distinguished academics, together with defense lawyers Gaby Lasky and Nery Ramati, the accused poet, her family and supporters, had to wait three hours in the ornate halls of the enormous courthouse, in a sort of forced hunger strike. The cafeteria had been closed many months ago, and there is not even a water cooler, not to mention a coffee machine – a winning combination of the fails of the Israeli legal system and the disregard for the “periphery”. The session, scheduled for 11:30 in the morning, started at 2:30 in the afternoon, and continued until 20:30 in the evening. The entire meeting was dedicated to the counter-interrogation of the two professionals about the reasoned expert opinions they supplied, each in his field of academic research. The prosecutor spared no efforts in her attempt to denounce their integrity.

“According to you, is every person who wrote a poem or a collection of poems is a poet who has the right to privileges over other people?” she asked professor Calderon. He replied positively and stated that if a text is written as poetry then “It is entitled to all rights we give to poetry in our culture, and the writer’s responsibility towards the poem is a poet’s responsibility”.

Dareen and Propf Calderon (center) & Tawfiq Tatour

Dareen Tatour and Prof Calderon (center) before the hearing

“According to you, calls for violence within a poem also deserve immunity from prosecution?”

“Not according to me, but according my information”, answered Calderon, “As Hayim Nahman Bialik [1873-1934, considered the top national-Zionist poet- O.Y.L] wrote ‘with vicious wrath your blood we shalt drink, we shalt have no mercy, and as all the nation shall arise to vengeance we shall say vengeance’, then the immunity Bialik enjoys includes sayings such as drinking the gentiles’ blood and a call for vengeance upon them. In Israeli tradition there is immunity to a poet who calls for illegal violence. In Hanukkah we sing the hymn ‘Maoz Tsur Yeshuati’- ‘When you shall make a massacre / from your barking foe…’ We call in Hanukkah to massacre our enemies.”

The prosecutor pointed out that Tatour’s poem was read in Facebook over a video as background, but Calderon made clear that this fact is irrelevant: “I come from a literary and lyrical tradition that is well familiar with poems published in a variety of contexts, printed and filmed. Poetry is poetry. The video tradition is relatively new but the tradition of poetry in context has a long history. Would you question a poem by Uri Tsvi Greenberg [1896-1981, highly acclaimed poet and right-wing activist] in which he specifically mentions the words The Thugs Alliance [“Brit Habiryonim”], while he was explicitly a member of the Thugs Alliance organization which called for illegal actions against the British government in the country?” Uri Tsvi Greenberg, the witness mentioned, was never a target of the British mandate police despite his blunt texts which were the inspiration for underground movements that took violent actions against the mandate regime. Just like the Russian Tsar regime which did not see fit to act against Haim Nahman Bialik despite his call for violent revenge.

“You do not presume to present yourself as an objective witness,” the prosecutor snapped at the professor, who was quick to agree: “There is no objective witness in literature, no court for literary works, their meaning and value.” He confirmed that he expressed his opinion about Tatour’s trial in an event called “Poetry in the shadow of terrorism” which was held by the Author’s Association, and that loud arguments rose during this occasion. “Arguments inside the literary community are natural”, he pointed out. Hardak claimed that Calderon relied solely on classics from the distant past and did not bring into his opinion current examples. “If we embrace you position, then where we are today, any person under the disguise of a poet could publish anything he wishes to, even if it would otherwise be a criminal offense!”, scowled the prosecutor.

“Yes,” said the professor calmly, “Ariel Zilber [contemporary popular song writer] published songs which supported the murder of [Israeli PM] Rabin. No one prosecuted him and he should not be prosecuted. His immunity was supported by all the literary community.”

The prosecutor took great efforts to present the second witness, Dr. Mendel, as “not objective” too. She presented as “incriminating” evidence an article he wrote in the past in which he interpreted the Hamas movement as a political organization, not as a terrorist organization. (In the re-interrogation Mendel made clear that this definition comes not from his “feverish mind” but repeated the statements of the American general Collin Powell and the former head of the Mosad, Efraim Halevi). Mendel also confirmed he wrote an article about the completely false interpretation of Israelis to the word “shahid”, which should be translated to “martyr” or “victim”, while Hebrew speakers automatically identify it with terrorism.

The Palestinians, say Mendel, refer to shahids “More as victims and less as aggressors. A shahid is not only someone who performed an act of terrorism but also a person with cancer who dies at an army checkpoint. Most of those who are called shahid are civilians who did not go to offend Israelis. If in “Protective Edge” or “Cast Lead” [Israeli military operations against Gaza] about 2000 people were killed in the Gaza Strip, for the Palestinians they are all shahids, fighters and civilians alike.”

Waiting for trial Dareen and Mendel

Waiting for the hearing – Dr Mendel first from the left

As for the poem Dareen Tatour wrote, the witness made clear, all victims she speaks of in the poem are civilians. “When I look at the names of the victims she refers to in the poem, the child who was burned is probably Muhammad Abu Khdeir; Ali is Ali Dawabsheh; Also Hadeel was a very extreme case, Haaretz newspaper called it an execution” (Hadeel al-Hashlamoun was shot in Hebron by a soldier who suspected – mistakenly according to all testimonies – that she came to perform a terror attack).

At this point the prosecutor took out videos in which suicide bombers were presented as shahids, while trying to convince the witness that Dareen Tatour also meant to glorify suicide bombers when she mentioned shahids. It took three hours of exhaustion at the witness box and with video after video presented to the witness with no change in the testimony and finally the advocate complained that the prosecutor treats Dr. Mendel as an accused. Hardak indeed kept calling Mendel “”not objective” and he kept to his answer that “When you come to talk about the political reality, there is no person without opinions”. He also added that by his own professional analysis a truly not objective action was taken by whoever decided to prosecute Dareen on the basis of a biased, incriminating translation: “My translation is loyal to the truth, objective, connected to the spirit of the original text and was not written with intent to incriminate. To my mind, in every node in which a certain interpretation could be chosen, a decision was taken to translate her meaning as violent, and that is what lacks objectivity”. Later during the questioning Mendel added: “The police translation is very simplistic, inaccurate, and its intent was to prove that the writer supports violent actions”.

The prosecutor still kept on presenting videos. What does he see in the videos? The witness was asked. “In the video I saw the West Bank, territory outside the Green Line, which has not been annexed to Israel and by my understanding it presents soldiers who confront Palestinians”. At another point he mentioned that in the West Bank “There is a very complex situation in which the soldiers are seen as an occupying force and the demolition of a home is conceived by the Palestinians as an act of violence”.

“Stone throwing or Molotov cocktails are terrorism”, claimed the prosecutor. Mendel replied: “The conflict should be solved without violence. I’m against violence. In a situation where one side shoots and the other throw a stone, there are acts of violence on both sides”. He responded with irony to the definition of stone throwing as a disruption of order: “Someone has to ask oneself: if the stone disrupts the order – then what is the order? The perpetuation of the situation is which Israel occupies the West Bank. Stones’ throwing is a reaction to stormy conditions”.

The Judge decreed that the defense will terminate its case in the next session that she set for March 28. Tatour’s lawyers summoned police officer Yaniv Hami and announced that there might be still another witness for the defense. They requested to present the defense summaries in writing.