The Military Prosecution Coming to the Government's Rescue? (memo to Major General Ismail Faraj on the kidnapping of Lawyer Mohammad Husein)

His Excellency the Head of the Military Justice Commission – President of the High Military Court
Major General Ismail Farraj,

Subject: Demanding that the Military Prosecution be requested to initiate immediate investigation, arrest and referral of procedures with the accused in the crime of kidnapping the lawyer Mohammad Hussein and overstepping the authority of Nablus Magistrate Court.

MUSAWA – The Palestinian Center for the Independence of the Judiciary and the Legal Profession, an independent, impartial and non-governmental watchdog organization, extend their warmest greetings to you, noting that from the moment we became aware of the crime of kidnapping lawyer Mohammad Hussein from inside the courtroom of Nablus Magistrate Court and holding him in violation of the rule of law and in a manner that overstepped the authority and dignity of the judiciary, we were keen to follow the course of governmental as well as non-governmental dealing with the repercussions of the crime. MUSAWA communicated with several official bodies, the judiciary, the Bar Association and the Attorney General, and we kept track of the official statements issued by the government as well as the orders of the President demanding the investigation of the said crime. 

The information available concerning the crime and its perpetrators indicate that the crime was committed by members of the security services but in civilian clothing, and the judicial police could not take any action to prevent them from completing their act under the pretext that the perpetrators are members of the security services.

Given the controversy on who is the competent authority to conduct investigations into such crimes, knowing that a Memorandum Of Understanding was signed between the Public Prosecution and the Military Prosecution, The Public Prosecution did not take any measure to investigate, arrest, initiate criminal proceedings, summon the accused, or detain any of the accused for committing the said crime. Their abstention from taking any action came under the pretext that the said issue does not fall within its sphere of authority and that the Military Prosecution is the competent authority in handling such cases, given that the accused are categorized as military personnel!

In light of the Public Prosecution’s position regarding the matter at hand, and in your Excellency’s capacity as the head of the Military Justice Commission, meaning that you serve as a reference for the Military Prosecution, we ask you to instruct the Military Prosecution to take appropriate legal action, and to assign it to carry-out the investigation and summon those accused of committing the crime, also to duly arrest and refer them to the competent military court. Those who are accused of committing, abetting, or having anything to do with the crime should be guaranteed a fair trial pursuant to the legal rule that "the accused is innocent until proven guilty by a final judgment".

We, MUSAWA, affirm our respect and commitment to not causing prejudice to any person, whether civilian or militant, or any governmental/non-governmental body, knowing that it is our obligation not to interfere in the judicial work, as it is our obligation as well to ensure that the rights, dignity and security of the citizens, including judges and lawyers, are maintained. Furthermore, we insist on demanding that the provisions of the law be enforced equally, in realization of the rule of law and the principle of equality before the law and the judiciary. In view of that, MUSAWA sees that the Military Prosecution is ought to initiate the procedures of investigation, arrest, and referral immediately, in order to ensure that no one will escape punishment or accountability, to uphold the rule of law, to maintain the authority and dignity of the court, and to preserve the safety and security of the citizens.

We reiterate our demand that your Excellency take the necessary legal action, including assigning the Military Prosecution to comply with the contents of this memo, as appropriate. We kindly ask that we be updated on the measures taken on your part regarding the matter.

With all due respect,

Issued on 28/11/2017




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