Fredrik S. Heffermehl

Lawyer, Oslo, LLM (NYU)
Niels Juels g. 28 A, N-0272 Oslo, Norway
Phone: +47 2244 8003, fredpax@online.no

Oslo, 16 August, 2004

 

 

DID VANUNU GET JUSTICE AND A FAIR TRIAL IN ISRAEL’S HIGH COURT?

REPORT ON THE SUPREME COURT JUDGMENT OF 26 JULY 2004

dealing with Mordehai Vanunu’s petition for full freedom.

By Fredrik S. Heffermehl, legal observer of trial

 

I. Basic data of the Legal Case

Mordehai Vanunu, Jerusalem

vs. 1.Head of the Home Front Command, 2. Minister of Interior

Supreme Court of Israel, sitting as High Court of Justice.

Request: End of restrictions on freedoms of speech and movements and prohibition against leaving the country

Presiding judges: Barak, Mazza, Cheshin.

Counsels for Vanunu: Dan Yakir, Oded Feller (both from ACRI, The Association of Civil Rights in Israel).

Case history: After written petition from Vanunu early June 2004, an oral hearing took place on July 11, 2004.

In its July 26, 2004, judgment the court rejected all of Vanunu´s requests. The full text of the judgment is posted on http://www.peaceispossible.info/update.html.

THIS REPORT contains (II) a summary of facts, (III) comments on the oral hearing, (IV) summary of the Judgment and (V) comments and criticism. For FAST READING go to (VI) Main Conclusions.

Four key reasons why this report finds the Judgment invalid, under international standards, ratified and binding for Israel:

1. Court received key evidence and witness testimony in secret

2. Evidence unconvincing, whether kept secret or accounted for

3. General ban on all talk with foreigners inherently illegal

4. Israel has a legal obligation to protect Vanunu’s security.

II. Summary of the Facts/Background

Mordechai Vanunu, born 1954, immigrated to Israel in 1963. After military service Vanunu was employed for 9 years (1976-85), as technical assistant at the Dimona nuclear plant. In his free time he studied a.o. philosophy, ethics at the university, which led to a political awakening, a.o. an awareness of the moral and political dilemmas around Israel’s production of nuclear bombs, which he had discovered in the course of his work at Dimona.

In September 1986, two years after he quit his job at Dimona, Vanunu gave the Sunday Times in London photos he had taken inside the bomb factory, photos that documented the scope of the program and undermined Israel’s policy of ”nuclear ambiguity”.

On Sept. 30, 1986, Vanunu´s freedom was taken from him, when the Mossad, Israel´s secret agents, lured him from London to Rome, where he was beaten, drugged and abducted to Israel.

On 27 March 1988, after a secret in-camera trial and appeals, Vanunu was found guilty. He was jailed for 18 years, and for the first almost 12 years (1986-97) kept in strict isolation..

A number of pleas from Vannu for parole were rejected, both by prison authorities and the courts. He served the full time and then was released on April 21, 2004 – to worldwide attention.

V was only partially released. Two orders restricted his freedom: (1) The Head of the Home Front Command declared it ”required and imperative for the defence of the State of Israel” that V should for 6 months be under supervision by the police, report any change in his place of residence, not approach within 500 meters from airports, marinas and borders, not enter foreign embassies and not ”maintain contacts or exchange information by any means whatsoever with foreign nationals or residents, or take part in Internet chatrooms”. (2) The Minister of Interior issued an order barring V from leaving the country  for 12 months, since this ”might harm the security of the State.”

This was necessary, they claimed, because Vanunu ”might again publish secret information, which if made public could jeopardize the State´s highest security concerns.” and because he had informaton ”which he had not turned over (to the Sunday Times), (and which) remained hidden in his heart and memory and that following his release from prison Vanunu may publish this additional information too.” Vanunu is adamant that he has no further secrets and would not reveal them, if he had had any.

Since his release, Vanunu has received sanctuary at St. Georges Cathedral in East Jerusalem.

In contrast to the treatment in Israel, Vanunu is admired and recognized all over the world as a man of great moral courage and integrity. Innumerable persons, bodies and associations, many of them influential and prominent, have expressed respect for V and protested against his imprisonment. For each of the last 15 years Vanunu has been nominated for the Nobel Peace Prize. In 1979 he got the Right Livelihood Award. In 2001 he became Honorary Doctor at the University of Tromsoe, Norway.

This wealth of support sees Vanunu a political prisoner, a man of conscience, made to suffer for the idea that nuclear weapons are bad for security, and Israel is seen as suppressing his views and trying to scare others from touching a taboo issue.

Vanunu is not safe in Israel after two decades of libel and hate campaigns. There is no sign of the government taking seriously its legal obligation to protect Vanunu´s life and security.

 

III. On the oral hearing of the case July 11, 2004

The case was heard in the Supreme Court in Jerusalem on July 11 betweeen 0930 and 1320. In addition to the above mentioned parties, there were people from ACRI and Israeli supporters of Vanunu present. I was the only foreign legal observer. Photographers and journalists, Israeli and international printed and broadcasting media were in massive presence.

Not knowing any Hebrew, I could not follow in detail. My overall impression was that the proceedings generally, except as noted below, were conducted in a normal, professional manner, by both sides and by the court.

The following should be noted:

a. Case heard by same three judges. I was told by Vanunu that all three judges, in particular Mazza and Chechin, had found against Vanunu in several earlier human rights requests.

Comment: This involves risk of a repetition of earlier conclusions, in other words that the court may not have had the required impartial attitude to the case.

b. Judgment based on secret evidence and testimony:

The judges closed the court after 12 minutes, declaring that the key issue is whether Vanunu has further secrets. The judges then listened for three hours (0942 - 1240) to the State without Vanunu being present or represented, not even by his lawyers. However, the prosecution provided Vanunu´s lawyers with a censored version of 2 expert opinions filed with the court.

Comment: It is unacceptable to permit the State uncontrolled freedom to influence the decision. Most of the time Vanunu’s lawyers were excluded and could not hear, question, contradict or rebut the material and witness testimony of the State.

This violates the fundamental contradictory principle, confirmed in several rules of the ICCPR (International Covenant on Civil and Political Rights), Art. 14: everyone has the right to ”be tried in his presence, and to defend himself in person or through legal assistance” and ”the press and the public may be excluded” (but not the defendant and/or his counsel), and a right to ”examine, or have examined, the witnesses against him”.

Vanunu´s lawyer, Dan Yakir, has later explained the relevant SC precedent. In earlier cases the Supreme Court has held that:

 ”.. if the government has confidential evidence that it is not willing to reveal to the petitioner, the petitioner cannot meet the burden of proof to show that a government act against him is illegal. The presumption that the government acts legally cannot be refuted, and a petition will be dismissed, if petitioner does not accept that the court can examine government evidence in camera.

Although we protested and emphasized the difficulty of ensuring due process in Vanunu’s case, we were compelled to agree to this practice or drop the petition.”

Conclusion:

The practice of Israeli courts here does not comply with Art. 14 of the ICCPR. The proceeding fails to meet international norms, and the SC judgment cannot be considered a legitimate decision.

 

IV. The main elements of the 26 july 2004 judgment

The English translation is 18 pages and the content subdivided in points, numbered 1-15:

Point 1: describing petition/restrictions.

Point 2 is a summary of "known" facts, his travel to London, contact with Hounam/Sunday Times and then describes the basis for the first conviction of Vanunu in 1988:

”For turning over the secret information and the photographs to unauthorized elements, V was … convicted of aiding the enemy in its war against Israel, providing secret information with the aim of harming the State’s security, collecting secret information with the said aim - which constitute offences against sections 99, 113(b) and 113(c) of the Penal Law, 5737-1977. … to 18 years imprisonment … having had all his requests for parole turned down, (Vanunu) served almost the entire term of his prison sentence, and was released on 21.4.2004.”

Points 3/4: More details on restrictions, their legal and administrative foundations, the basis for fear that Vanunu is a threat to ”vital security interests” and evaluation of measures needed to prevent Vanunu from doing harm.

Point 5: Vanunu´s objections, State has no reason for fear, not capable of harming, measures are arbitrary, unreasonable and disproportionate. Judges state they cannot accept his objections, on the following grounds:

Points 6/7: Thorough discussion of the Emergency Regulations of 1945 concludes they are tenable basis for the restrictions.

Point 8: Vanunu´s lawyers argue that the restrictions are ”designed, inter alia, to stop V from using legitimate means to protest against Israel´s political and security positions”, Israel is a hostile environment, he needs to create a new life.

Point 9: Court discusses whether Vanunu is hostile and wishes to harm Israel, quoting several statements, in letters from Vanunu, e.g. one stating that he will: "travel everywhere and publish all the secrets and information I have … This time I shall go to America, the Congress, the Senate, the White House, to England, Europe and testify under oath, report to them about the crimes of the racist, Zionist, Jewish State."

Point 10. On basis of point 9, the judges find ”no doubt that Vanunu´s desire to disclose secrets about the (Dimona) remains as firm and determined as ever. But does (he) still have the capacity to continue harming the State …?” The State claims it has ”substantial evidence” to this effect: Thus, when V´s cell was searched prior to his release, they found notebooks that contained ”orderly notes and many diagrams handwritten by V”, i.e. notes and diagrams of structures, installations, methods and processes at Dimona, reconstructed from memory in his cell by V, who ”appears gifted with exceptional memory”. 

Point 11: Court discusses the notebooks, (1) purpose of memorizing the details, (2) what the books say about V´s possession of secrets. Judges dismiss Vanunu´s position that the notes was a way of training his mind and keeping his sanity in the almost 12 years of total sensory deprivation, stating: ”This strange explanation does not hold water … when you look at the meticulous detail and accuracy, this is ”plain evidence of (intention) to get it published after his release from prison”.

Point 12: Court feels persuaded, by written and oral testimony from experts heard in the in camera session on 11. July, that ”V. still retains in his memory secret information which, if published, could damage incontestable security interests.”

Point 13: Court agrees that the restrictions are ”harsh and burdensome”, but ”sees no just cause to intervene against them”.

The restrictions must pass a double test: both of purpose and of proportionality. The ban on travel has withstood this double test, because ”… once Vanunu is allowed to leave the country the State would not be able to control his activities.”

The court clarifies that the two bans both can be prolonged: That it is issued for only 12 months, but ”at the end of (this period) the Minister will be unable to issue another order prohibiting V. from leaving the country for an additional period. after evaluating how strong ”the risk (is) that V´s exit from Israel might jeopardize the State´s security.”

Point 14: The court notes that the restrictions are not satisfactory for the State, ”not very efficient and cannot gurarantee the purpose” that V does not leave the country or gives secrets to ”unauthorized elements”. But V should be glad that the State has wished to ”alleviate, as much as possible, both the substance and the scope of the restrictions”.

Point 15: Conclusion (Mazza): ”Petition must be dismissed”. (Judges Barak and Cheshin concur).

V. Comments/criticism of the judgment of the Supreme Court

Comment 1 – Kidnapping not addressed:

In point 2 the SC states that V was in London and then, next – in an unexplained jump – is sentenced by a court in Jerusalem. No explanation of how that happened, and no comment on the fact that he was not legally brought before the court, apparently in violation of procedures for making a lawful arrest and the territorial sovereignty of Great Britain and Italy.

The court has permitted the State´s control over Vanunu, illegally obtained on September 30, 1986, to continue.

Comment 2 – Existence of secrets:

Vanunu’s lawyers submitted strong affidavits from British expert phycisists, Frank Barnaby and Nobel laureate Joseph Rotblat, saying that it would be hard to find anybody outside Israel who would say that Vanunu today can possess any secrets of interest.

Many find it unlikely that the State, if it seriously thought V had had any important secrets, as well as a will to harm Israel, would have let Vanunu out, free to mingle with others, at all.

Comment 3 – Intention – publish secrets, for what purpose?

It cannot be enough that V has secrets, but must also be likely that he has an intention to reveal them. Here one has to ask, why would he reveal them? Vanunu made his point in 1986.

V says he was motivated by university studies of philosophical and ethical subjects, he had come to see nuclear weapons as immoral and dangerous. The intention of his action, occurring 5 months after the Chernobyl catastrophy, was to defend Israel against nuclear annihilation. A wish to protect Israel seems more probable than the government claim that he wished to harm Israel. Why would he harm? He was convicted in 1988 for ”aiding the enemy in its war against Israel” and for giving secrets with the ”aim of harming the State´s security”. What was the proof that convinced the (secret) court of such aim and intention?

Furthermore: how could a court in a democracy consider going to the press as ”íntention to aid the enemy”?

The court quotes from several letters presented as evidence of a will to harm Israel. These letters are all from the period 1998 – 2000 and the judges fail to consider his situation at that time. The letters betray the effects of isolation, they show a man under extreme, mental stress, struggling to keep his sanity. After almost 12 years in isolation a man reduced to a mouse in despair tries to boost self-confidence by roaring like a lion.

Since Vanunu knew that his every word was read by censors these letters are evidence of confusion, not real, serious intentions, but clearly expressions of anger, illusion, confused dreams.

Similarly, if he was determined to publish to help an ”enemy”, would V have kept notebooks in his cell – where the police was bound to find and read them? That V did this for mental survival makes sense, the court´s interpretation does not.

Comment 4 – Has Vanunu a will to harm Israel and would he?

Vanunu 2004 is a different man from the desperate prisoner who wrote the letters in 1998-2000. There is no doubt from those who followed his letters and the family members who came to visit him in jail, that Vanunu´s threatened mental health improved greatly during the last couple of years in jail. With his freedom in sight, he recovered and was able to leave jail as a mentally strong, rational and balanced person. But, he is not calculating and diplomatic in expressing his views.

His Israeli friends are surprised by his forgiving attitude and lack of bitterness, anger after all the years taken from him.

For 3 months now V has been free to see many people. Had he had any secrets, and been so hellbent on revealing them as the State claims, he could have done so many times over in these months.

Vanunu says that he wishes to settle somewhere abroad, form a family, find work. This is likely and credible human needs in his situation. V knows that, whether he is in Israel or abroad, it would expose him to danger, harm, trouble, new prosecution, limit his freedom to travel, if he should break Israeli laws.

Conclusion: It is unlawful to keep punishing Vanunu for wrongs he might commit in the future and the harsh and  burdensome restrictions appear superfluous, unnecessary and unjust.

Comment 5 – What about the security of Vanunu?

The court has concern for the security of the state, but fails to mention the security of Vanunu. The way he has been portrayed by the State since 1986 has exposed him to hate and harm, even threats against his life. The authorities may seem unaware that their legal obligation to protect the basic human rights of all citizens, to life, freedom and personal security, also includes Vanunu. With the prevailing sentiments and volatile conditions, Israel, by keeping him from leaving, puts his life in danger.

The court agrees, with good reason ”that the restrictions are harsh and burdensome,” and further deems it correct that the restrictions imposed by the Home Front Command ”are not very efficient and cannot guarantee their purpose …”(points 13/14),

Conclusion:

The court should have given precedence to the need to protect Vanunu´s fundamental human rights to life and personal security.

Comment 6 – international legal obligations

One who has served his sentence is entitled to his full rights and freedoms, just as any other citizen. This is prescribed in the Covenant on Civil and Political Rights. There is an exception related to national security (see Art. 19.3 (b)), but all measures taken have to be necessary. Imparting information and ideas that are not able to harm, or are already in the open, cannot be the subject of a restraining order.

One can prohibit wrongdoing, but to broadly prohibit any and all talk with any foreigner, on any subject, has to be inherently illegal and is bound to violate Art. 19, 2 of the ICCPR:

”Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.”

 

VI. Main conclusions

At the core of the court´s decision lies the premises that Vanunu has more secrets, that are not known and that could harm. A ”national security” need is the only possible basis for not letting Vanunu leave (Under ICCPR Art. 12 everyone is entitled to leave his country). In violation of ICCPR Art. 14 this key question in the case was dealt with in a secret proceeding and we only have the court´s conclusion, without facts or reasons.

The existence of further secrets remains a postulate, where our conclusion must depend on whether we can trust Israel’s will to respect the law and treat Vanunu with fairness. Unfortunately, the opposite has been demonstrated from the start of the case: first the brutal and illegal kidnapping, then the libellous presentation of him as a spy and a traitor who acted for money, then the secret trial, the torture of 12 years in isolation etc.

Israeli leaders disagree with Vanunu on whether nuclear weapons serve national security and should be known to the public. But it is hard to see any point for Vanunu’s political goals, or additional harm, in proving again what was 100 % proven in 1986.

Where the evidence is accounted for, a.o. his mentality and intentions, the logic and conclusions are far from convincing.

That the restrictions are necessary is questionable, not only  relating to what secrets Vanunu could have today, but also because, wherever he may live, if he should break Israeli law in future, he would risk trouble and serious consequences.

The restrictions appear arbitrary and in excess even of their own stated purpose, when they ban talk to foreigners and to foreign journalists. This specific restriction suggests a wish to limit freedom of speech.

A likely motive behind the persecution of Vanunu may be to teach others that disobedience will draw draconic consequences. The 2003 BBC film ”Israel’s Secret Weapon” documented that Israel protects all nuclear information with a taboo so strict that e.g. workers with radiation illness cannot claim compensation.

The court notes both that the restrictions are burdensome and may be inefficient, but despite these two findings does not consider his situation and demand that the State respects its legal obligation to protect Vanunu’s life and personal security.

The basic attitude of Israeli authorities, that Vanunu is a traitor seeking to harm the State, fails to draw the conclusion from available evidence, that Vanunu is a man with a political and moral agenda, and is a matter for politics, not for police.

The Judgment of the Supreme Court of Israel in the Vanunu case lacks legitimacy, since it fails to comply with basic principles of fair trial, international law and human rights standards. The court´s evaluation of facts is either unknown or unconvincing.

 

Oslo, 16 August, 2004

 

Fredrik S. Heffermehl