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Israel: Conviction of Former Arab-Israeli Parliamentarian for Visiting Syria Upheld

(Sept. 11, 2015) On August 31, 2015, Israel’s Supreme Court rejected an appeal by former Knesset Member (KM) Said Nafa against his conviction by the Nazareth District Court on charges of committing the offenses of unlawfully visiting an enemy country, providing unlawful assistance to others by arranging their visit to an enemy country, and making contact with a foreign agent. (Offenses Under the Extension of the Order of Emergency Regulations (Exit Out of the Country) No.5709-1948, ITON RISHMI [OFFICIAL GAZETTE] No. 33 (1st Supp.) p. 45; Prevention of Infiltration (Offenses and Jurisdiction) Law, 5714-1954, § 2A, 8 LAWS OF THE STATE OF ISRAEL (LSI) 133 (5714-1953/54); Penal Law, 5737-1977, § 91, LSI (Special Volume) 1977, all as amended.)

In addition to rejecting the appeal of the appellant’s conviction, the Court upheld the three-year sentence of imprisonment imposed on him, with 12 months to be actually served, and if he commits similar offenses within the three years following his release, he will be subject to six additional months of imprisonment. (CrimA 6833/14 Said Nafa v. State of Israel, (Aug. 31, 2015), THE JUDICIAL AUTHORITY (in Hebrew).)

The Indictment

According to the indictment, the Minister of the Interior had rejected the appellant’s request to permit a group of Druze clergy to travel to Syria, based on security considerations. Following the rejection of his request, the appellant received and transferred to former KM Azmi Bishara, who was in Syria at the time, the names and relevant documents of interested travelers so that Bishara could handle their entry visas into Syria. (Id. ¶ 2.) Bishara has reportedly fled Israel amid allegations that he had passed sensitive information to Hezbollah in Lebanon. (Jack Khoury, Former MK Azmi Bishara Wants to Return to Israel, but Fears Unfair Trial (May 10, 2015) HAARETZ [subscription required to view full content].)

In September 2007, the appellant arrived in Jordan with a group of 282 men and arranged for their entry permits into Syria. On September 6, 2007, he entered Syria with the group. (CrimA 6833/14, ¶ 2.) During his visit in Syria, he met with Talal Naji, the deputy secretary general of the Popular Front for the Liberation of Palestine; he also attempted to meet with the head of the Hamas political bureau, Khaled Meshal. (Id. ¶¶ 4-5.)

The Supreme Court Ruling

In appealing his conviction, the appellant alleged that at the time he committed the acts subject to the indictment he enjoyed immunity from prosecution under the Knesset Members (Immunity, Rights and Duties) Law (5711-1951, 5 LSI 149 (5711-1950/51), because he was a Knesset member. He further alleged that he was immune from prosecution under that Law on the basis of a specific exemption it provides relating to KM travel and its procedural immunity clause for Knesset Members. (CrimA 6833/14 ¶ 26-30.) Under §2A of the Prevention of Infiltration (Offenses and Adjudication) 5714-1954 (SEFER HA-HUKIM [OFFICIAL GAZETTE] 1954, No. 161, p.160, as amended), unlawful exit from Israel into Lebanon, Syria, Egypt, the West Bank, Saudi Arabia, Iraq, Yemen, Iran, or any part of the historical Land of Israel which is outside of Israeli jurisdiction is punishable by imprisonment for four years or a fine.

Rejecting the appellant’s claims, Justice Elyakim Rubinstein held that according to judicial precedent the substantive immunity to which Knesset Members are entitled under section 1(a) of the Law must meet the “natural or professional risk test,” whereby immunity will be extended to any act that is within the professional risk of a Knesset Member in the course of fulfilling his/her work. According to Rubinstein, this test is based on the objective of substantive immunity, which is granted to enable Knesset Members to fulfill their parliamentary duty. That duty

… by its nature is composed of lawful acts- without worrying whether if such actions cross the limit of what is allowed, the Member will risk a civil suit or a criminal indictment. This indicates that a person who argues for the application of substantive immunity for unlawful actions must shows that these actions derived from other lawful actions that constituted part of fulfilling his/her parliamentary office … . The actions of the appellant are independent criminal actions that did not derive from legitimate parliamentary activity and its ‘natural risk’… . [A] Knesset Member is not an agent for unlawful travel and for ‘criminal tourism’ to enemy countries, and also is not authorized to use his position as a tool for planned meetings with heads of terrorist organizations. (Id. ¶ 48.)

In rejecting the appellant’s claim for a special exemption from the prohibition on travel, Rubinstein held that under the Order of Emergency Regulations (Exit Out of the Country), the prohibition on travel to enemy countries was extended to Knesset Members (Order of Emergency Regulations (Exit Out of the Country) (Amendment No. 11) 5762-2002, ¶ 52, SEFER HAHUKIM 5762 No. 1836 p. 205.) Rubinstein similarly rejected the appellant’s claim for procedural defects in the Knesset Committee proceedings that led to the Committee’s rejection of the appellant’s request for procedural immunity in accordance with the Knesset Members (Immunity, Rights and Duties) Law, 5711-1951§13 (C1). (CrimA 6833/14/ ¶ 61.)

Determining that by committing the offenses of which he was convicted the appellant inflicted serious harm to state security, Rubinstein also rejected the appeal of the penalty. He determined that the severity of the harm was especially manifested by the fact that the appellant had first attempted to obtain exit permits for the group and that his request was denied based on security reasons. The appellant’s meeting with a foreign agent who was a senior member of the Popular Front, the Justice stated, similarly constituted a severe threat to state security. Rubinstein decided that “the mere willingness of the appellant to commit the offenses and create the [security] risk [reflects] an expressed disregard, under bad faith, for guarding the important value of security of the State of Israel to which he owes allegiance as a citizen and especially as a member of the Knesset. (Id. ¶ 72.)