At first glance, the whole story sounds quite unbelievable. In our ostensibly peaceful and harmless alpine republic, the maximum sentence is rarely meted out. A maximum sentence for an act that was obviously politically motivated, to be carried out in occupied Palestine, and which actually wasn’t carried out after all, should raise your eyebrows.
The defendant, Abdelkarim Abu Habel, was born in 1990 in Jabaliya in the Gaza Strip. At the age of 14, he was sentenced to nine years in prison by the occupying forces, an Israeli military court. According to media reports, he was denied visits by his father for five years – just one example of the severe conditions in Israeli detention. We don’t know the details about this case, but the general situation in Gaza and the disproportionate nature of the conflict between the occupying force, Israel, and the Palestinians who are confined to the Gaza strip are well known.
After his release, Abu Karim got married and in February 2015 fled to Austria via Turkey, where he applied for political asylum. He was housed in Litschau, a town with a population of 2,300 on the border to the Czech Republic. In 2016, the Austrian police arrested him after a tip-off by Israeli authorities, and he was eventually charged with terrorism. (The Austrian authorities also charged him with civil disorder and slander of government officials, typical accompanying charges that won’t be addressed here.)
In an interview with an English language newspaper, his father asked why the Austrian authorities charged his son for something that he had already served a sentence for in an Israeli gaol.
Let’s remember that Abu Habel, now 28, after a childhood in the Gaza Strip (with Israeli settlers still present at the time), spent all his youth in Israeli custody, while his home was attacked by the Israeli military in three asymmetric wars – 2008, 2012 and 2014 –; he managed to escape, only to end up in an Austrian prison.
We don’t know the details of his indictment or the sentence. Apart from the media coverage, we only got a Supreme Court decision rejecting the appeal for nullity. The lower court’s decision is quoted in that ruling. Apparently, there were two main charges: a planned attack in Jerusalem, and membership with Hamas.
An attack that didn’t happen
Abu Habel is alleged to have incited via the Internet two Palestinians whom he didn’t know “to throw one or more hand grenades at a crowd at the Al-Aqsa Mosque in Jerusalem (Israel) during the month of fasting, Ramadan 2016.” The failed assassins were reportedly arrested by the Israelis for committing a crime. The two main witnesses, both Palestinian youths in Israeli custody, gave their statements via Skype from an Israeli prison. According to the media reports, they said that coded language had been used: “apples” for grenades, and “monkeys” for Jews (excellent fodder for prejudgement). The Austrian court apparently cited identical spelling errors in different chat messages on different devices as sufficient evidence to prove the authorship of Abu Habel.
These are just a few elements, but they alone are quite fantastic constructions. Would a murderer recruit strangers via the Internet, knowing that this is an open book for the Israeli authorities? How credible are witnesses who are not present in court, but give their statements via a video link while in Israeli custody? The blackmail capacities of the Israeli states are well known. Remember that Israel is the record holder of prisoners in “administrative detention”, i.e. people who are held in gaol without trial or judgement, by a regime that is well known for systematic and widespread torture. Who provided the intercepted messages and the surveillance protocols? What language were they in – Arabic, presumably? –, and who provided the translations and interpretations – Israel, perhaps?!
The political bias of the court is obvious from the addition of “Israel” in brackets after “Jerusalem”. That addition by the court is an obvious contradiction of the status quo according to international law: the Al-Aqsa Mosque is located in East Jerusalem, which was illegally occupied by Israel in 1967 and illegally annexed by Israel in 1980. This annexation was never recognised by the United Nations General Assembly, the UN Security Council or even by the government of the United States.
Overall, the court treated the alleged act as if it had taken place in Austria, without any reference to the context of the colonial occupation, and of course without mentioning that international law expressly legitimizes resistance against foreign occupation, including by military means. (Brussels protest against Black List and Iraq War 2002)
We don’t know which evidence the court accepted as proof that Abu Habel was a member of Hamas.
Hamas is on the EU list of terrorist organisations; however, that list is not binding for EU member states. The list is above all a political propaganda tool, as the label “terrorism” in general. It is mostly an expression of intention whom to label as enemies.
The Kurdish Workers’ Party (PKK) for example is also on this list, but in that case the Austrian authorities simply choose to ignore the “terrorist” label. The PKK has been able for decades to maintain a comprehensive political infrastructure and has been participating every year in the May 1st rally organised by the Social Democratic party. (That is a marked contrast to the situation in Germany, where the PKK is banned and the authorities severely persecute its members.)
The Austrian authorities are not obliged to classify or persecute Hamas as a terrorist organisation either. The fact that they do is a political decision for which they have to take political responsibility.
As a matter of fact, Hamas received the majority of votes in elections. Their political goal is the liberation of Palestine. Let’s not forget that Palestine is one of the few remaining colonies of European settlers. Hence the compelling comparison with South Africa, where the resistance against the apartheid regime finally crushed it in the 1990s. Before that, the ANC and Nelson Mandela were labelled “terrorists” by many governments who maintained good relations with the apartheid regime. Hamas membership is thus a purely political offence. (Appeal for the removal of Hamas from the EU terror list)
Freedom of expression and a dubious anti-terrorism law
According to a release by the Austrian Press Agency (APA), the judge’s verdict clearly was politically motivated: “The maximum penalty is needed to demonstrate to the accused and to signal to the public that this is not the right way to bring about political change.” To make matters worse, the judge cited the “relevant criminal record” of the accused in Israel, as if the military “justice” system of a colonial power were an ordinary court. Remember that to the Israeli state, prisoner exchanges such as the one that freed Abu Habel count as amnesties.
It is not the first such politically motivated verdict in Austria. In recent years, there has been an increasing number of such cases. Above all, dozens of Muslims were sentenced under recent anti-terrorism laws in dubious proceedings that were de facto closed to the public. Those cases are often bizarre constructions, riddled with dubious translations and problematic government-appointed defence lawyers who tend to counsel their clients to admit actions the defendants did not commit or to incriminate others in order to be able to argue for mitigating circumstances. While Austrian prisons are filled up, the government deploys a small army of “de-radicalisers”. A less biased judiciary that doesn’t permit infection by the government-driven wave of Islamophobia would probably be more effective.
But there is also a well-targeted prosecution of pro-Palestinian activists, as the conditional sentencing by an Austrian trial court of an activist to five years in prison shows. He had burned an Israeli flag during a demonstration in Graz against the murderous Israeli attack on Gaza in July 2014.
Biased prosecutors and judges also target leftist groups in Austria such as the Anatolian Federation. A whole group of people who participated in a May 1st march were charged with “supporting terrorism”, and several have already been sentenced for opposing the Turkish government. Even the Social Democratic Party’s spokesperson for justice issues, Johannes Jarolim, says he not only finds these trials, but also the anti-terrorism laws and blacklists questionable and a restriction of the freedom of expression.
The first of this series of anti-terrorism proceedings were trials against animal rights activists, apparently a test for the new legislation. They dragged on for several years, but in the end, the judiciary underestimated public opinion and the defendants were acquitted.
The legal basis for all these proceedings is the anti-terrorism legislation with article 278 at its core: “Section 2: A member of a criminal organization is any person who commits a criminal offence as part of its criminal direction or otherwise participates in its activities by providing information or assets, or other means, in the knowledge that he or she thus supports the association or its criminal activities.” This law was introduced in the wake of the hysteria fomented after 9/11. Actions that had already constituted criminal offences before according to previously existing laws were now elevated to the status of terrorism. What makes an “ordinary” criminal offence deserve the designation of “terrorism” is subject to elastic and arbitrary judicial decisions. In the end, political intent is the decisive element, which opens the door to criminalising free speech.
Even without knowing all the details of Abu Habel’s case we can certainly say that he is a victim of a pro-Israeli political judiciary and his is a sentence that was made possible by undemocratic anti-terrorism legislation. But even without the authoritarian possibilities of the anti-terrorism law, this trial should raise considerable doubts and alarm for anybody who wants to defend the rule of law. The most important element of a constitutional state is public scrutiny and the general public asking the necessary questions – which is an urgent task for us right now.