TOP U.N. LAWYER URGES FREEDOM FOR ABU MUAILEK

 

LETTER TO PRIME MINISTER ISMAIL HANIYA

International Law Commission

United Nations

Geneva

15 May 2011

Mr. Ismail Haniya

Gaza

PALESTINE

Dear Mr. Haniya

RE    MOHAMED ABU MUAILEK

I am writing to you about Mohamed Abu Muailek who has been in prison in Gaza for over two years (I understand that he was detained in April 2009).

I have a long and positive association with Gaza. From 2001 to 2007 I was Special Rapporteur to the UN Human Rights Council on the Human Rights Situation in Palestine. In this capacity I visited Gaza and reported to the Human Rights Council and the UN General Assembly on Israel`s violation of human rights in Palestine in general and Gaza in particular. You will, I hope, recall that I met with you on one of my visits in 2006, in violation of UN rules about meeting with leaders of Hamas. In 2009 I led a Fact-Finding Mission established by the League of Arab States to investigate the situation in Gaza arising from Operation Cast Lead. We reported that Israel was guilty of both crimes against humanity and war crimes. Unlike Judge Goldstone I have not changed my mind or retracted my report!

My involvement in Gaza demonstrates my concern for the people of Gaza and the image of Gaza in the outside world.

It is in the light of this personal history that I ask you to intervene to secure the release of Mohamed Abu Muailek. I know that he has expressed views contrary to the clear policies of the Governing Authority of Gaza. But in a democracy dissenting views must be tolerated. I know that Gaza has always prided itself on its respect for freedom of speech. It seems to me, from the evidence I have received, that Mohamed’s main crime is the exercise of free speech on a politically very sensitive issue – that is, how best to resist Israeli occupation. To me this does not amount to treason but rather a genuine expression of how to most effectively resist the occupation.

Mohamed has now been in prison for over two years. This amounts to denial of due process of law, a principle respected by both the law of Gaza and international human rights standards. In my view it would be in the best interests of Gaza to release him without subjecting him to a trial, especially one in a military court without open access to the proceedings. Having spent two years in prison already for expressing dissenting views surely this will constitute sufficient punishment?

I am deeply concerned about the reputation of Gaza in the West, particularly at this time when Hamas and Fatah seek to work together to end the occupation. The reputation that Gaza has in the West does not accurately reflect Gazan society and the practices and principles of Gaza as I have experienced them. I would like to see Gaza respected by the international community, and particularly the West. It is in this spirit that I ask you to release Mohamed. Both considerations of justice and the image of Hamas require that he be freed. In my view it would not serve either justice or the interests of Hamas to put Mohamed on trial.

If, however, you decide that it is necessary to continue the trial process, I urge you to hold the trial in open court and to allow the journalist Paul Martin to give evidence on Mohamed’s behalf by video. Understandably, in the light of his experience when last he visited Gaza to secure Mohamed’s release, Martin, who is an internationally respected journalist and film-maker, will probably be reluctant to go to Gaza in person to testify on behalf of Mohamed. But his evidence can be obtained by video link.

Mr. Prime Minister, now is a good time to release Abu Muailek. Reconciliation between Hamas and Fatah should be accompanied by such gestures of humanity.

Yours sincerely,

JOHN DUGARD

To view John Dugard’s letter, click here

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