The Raed Salah judgment

When judges follow politicians, not the law

Memo, 28 October 2011

See our earlier roundup of commentary on this issue at How the CST got the Home Secretary’s ear and CST’s response to this new ruling below

The general rule for banning orders is that substantial evidence of harm must be established; and massive risk of harm.

The immigration tribunal ruling against Raed Salah is a classic example of what happens when judges follow politicians instead of the law. Contradictions and double-speak abound as they drag their profession into the mud. This particular judgment is unique because while it appears to have the trappings of legal finesse it negates the fundamentals of the law. Evidently, the aim was not to act justly but rather to create a set back to the appellant so that he would become frustrated and throw in the towel. This will not happen with Raed Salah.

The first principle in any arbitration is to address the facts dispassionately and not speculate about what might or might not happen, or have happened. While the case against Salah was premised on claims about statements made in Palestine, the honourable judges refused to give weight to the context, reasons for and meanings of those statements.

Judges Renton and Lloyd declared that they were satisfied that Salah “has engaged in unacceptable behaviour of fostering hatred which might lead to inter-community violence in the UK”. What was this unacceptable behaviour? The specific examples mentioned by the Home Office were roundly refuted by the appellant in the tribunal with video evidence showing beyond any reasonable doubt that far from being the aggressor he was actually the victim of harassment and provocation.

It appears that what is “unacceptable” is Raed Salah’s well-known opposition to Israel’s illegal occupation of Jerusalem, destruction of Palestinian homes, violation of Islamic sanctities and ethnic cleansing of the city. Raed Salah is not alone in this regard. Every Palestinian abhors this. Indeed, apart from Israel, the perpetrator, only the US and a handful of European countries acquiesce in the face of these policies. What distinguishes Salah, however, is that he is most vocal in his opposition. The Israeli establishment views him, therefore, as an obstacle in the way of its illegality. Had he remained silent, his behaviour would have passed unnoticed and, no doubt, been judged “acceptable”. This is what this case is all about.

More bizarrely, Renton and Lloyd ruled that Raed Salah dealt with “issues which are highly sensitive in the context of the Israeli/Palestinian dispute”; he spoke “in vivid terms alleging that it was the intention to destroy the Al Aqsa Mosque, again a particularly sensitive issue”. The first point to recognise, which Home Secretary Theresa May fails to do, is that Jerusalem is occupied by the Israelis; the Zionist state of Israel has no right to the city. This is why the UN Security Council has called on Israel to desist from taking any measures to alter Jerusalem’s status. And why no country worthy of the name has an embassy in Jerusalem; it is occupied territory.

What are the measures of concern to the Security Council? There is a whole catalogue of Israeli actions intended to change Jerusalem’s demographic as well as its religious character. If the United Nations Security Council, no less, can condemn Israeli actions in Jerusalem why can’t Raed Salah speak about them? Perhaps UN officials who describe the situation imposed by Israel on the Palestinians as apartheid, annexation and ethnic cleansing will be deported next time they visit the UK.

The implication of the tribunal judgement is that Raed Salah should keep quiet because it’s a “sensitive issue”. Does Theresa May, or the judges for that matter, believe that Palestinians affected directly should only complain after Israeli zealots damage Al-Aqsa Mosque? Let the Home Secretary and her buddies on the bench think back to what happened after the war criminal Ariel Sharon made his inflammatory visit to Al-Aqsa in 2000. Any sane person has to agree that prevention is better than cure.

After the serious arson attack on the mosque in August 1969, the UN Security Council said it was aggrieved by the “extensive damage caused” and determined that “the execrable act of desecration and profanation of the Holy Al-Aqsa Mosque emphasizes the immediate necessity of Israel’s desisting from acting in violation of the aforesaid [UN] resolutions and rescinding forthwith all measures and actions taken by it designed to alter the status of Jerusalem”.

The tribunal judges also objected to the fact that Raed Salah often used “historical references” to make his point. The irony of all of this is that the entire Zionist project of the state of Israel is based on historical references and claims. Raed Salah is a victim whose people were expelled from their homes and land, in what even Israelis have called “ethnic cleansing”, but he must not use history to counter the effects of the Palestinian Nakba (Catastrophe)! He must accept the narrative imposed by the occupier of his land and is not supposed to voice his opinion about this injustice; if he does, he is inflaming the issue. Such is the malevolent nature of Israel’s occupation and its supporters, members of the British government among them, that he is not free to have an opinion about his own history. No wonder the extremists in Israel are intent on changing place names and even forbidding the commemoration of the Nakba. It’s not too fanciful to suggest that in the light of this baleful judgment Britain may soon make it unlawful as well.

Incredibly, given Israel’s status as a democracy, Salah’s criticism as a citizen of what is his country is deemed unacceptable by the tribunal judges. Perversely, they use the democratic nature of Israel to back their judgement: “Israel is a democracy, and therefore it must be the case that the actions and stance of its Government has a large measure of support of Jews living in Israel, and also within the wider Jewish Diaspora.” The legality of “the actions and stance” of the Israeli government is not an issue for the judges; whether Israel’s “actions and stance” violate international laws and conventions, the supposedly learned judges have determined, doesn’t matter as long as most “Jews living in Israel” and the “wider Jewish Diaspora” support them.

Whether the Home Secretary acted out of prejudice or pressure and abused her power is irrelevant. The court failed to assess the Home Secretary’s decision critically. This is what a British court has been reduced to; a proper court dispenses proper justice. This tribunal produced a dishonest ruling which is an indelible stain on the legal system.

Let us remember that the case against Raed Salah began even before he stepped foot on British soil. The right-wing, pro-Israel lobby claimed in its compliant media outlets that he is a racist; that he is anti-Semitic. The tribunal has not found any of these allegations to be true and has, unintentionally for sure, cleared the way for Salah to continue to challenge those who he believes have libelled him.

The general rule for banning orders is that substantial evidence of harm must be established; and massive risk of harm. The government in the guise of the Home Secretary has acted dishonourably by basically changing the rules at the request of the Jewish-run Community Security Trust and Board of Deputies of British Jews, on the pretext that Salah’s presence would not be conducive to the public good. This was not proven in the tribunal. It is obvious that the issue really at stake is freedom of speech, a right that should be guaranteed instead of being restricted on the basis of pro-Israel speculation.

Overall, the tribunal’s judgement against Raed Salah is deeply flawed, a crass attempt to smear a national leader at home and abroad and impede his effort to protect Palestinians from Israel’s occupation and oppression. Britain is noted for its history of separating the executive from the judiciary. That seems no longer to be the case and if he wants real justice, Salah should not look to a partisan British government. For all of us who care deeply about the supremacy of the rule of law over the whims and bias of politicians, this tribunal judgement represents a scar on the independence of the judiciary. It was a dark day for British justice when it was issued.

Raed Salah loses appeal against deportation

Sheikh Raed Salah, the leader of the northern branch of the Islamic Movement in Israel, has lost his appeal against deportation from the United Kingdom. Salah now has until the end of October to lodge a further appeal before deportation.

CST welcomed the Home Secretary’s efforts to exclude Salah from the UK and this position has now been vindicated by the immigration tribunal. As has been widely reported, CST provided evidence of Salah’s inflammatory and antisemitic statements to the Home Office and we are pleased that this evidence was accepted by the court.

The tribunal considered five pieces of evidence against Salah: a poem he had authored which we argued could incite hatred of Jews, but which Salah argued was not antisemitic; a speech in which he made a ‘blood libel’ slur against Jews, but which Salah claimed was not about Jews; Salah’s inflammatory claims that Israel intends to destroy the al-Aqsa Mosque; the outstanding charges he currently faces in Israel for incitement to violence and to antisemitism; and Salah’s conviction for funding organisations linked to Hamas.

When these allegations were first aired, Salah denied having written the poem; denied making the blood libel comment; denied facing any charges in Israel; and denied any links to Hamas. Only after CST provided evidence to the contrary, did Salah admit to having written the poem and making the blood libel comment, and argued instead that CST’s interpretation of those texts was wrong. He also admitted his conviction for funding organisations linked to Hamas, but claimed this was for “charitable and humanitarian purposes.”

Today’s ruling (pdf) outlines the arguments presented on behalf of the Home Secretary and Salah on each of the five points of evidence, and then concludes that the evidence justifies his exclusion from the UK:

We conclude from all this evidence, viewed in the round, that the Secretary of State was right to conclude that the words and actions of the Appellant relied upon by the Respondent do come within the Prevent Strategy and therefore in accordance with the Secretary of State’s policy do justify a conclusion that the Appellant’s removal would be conducive to the public good.

[…]

We are satisfied that the Appellant has engaged in the unacceptable behaviour of fostering hatred which might lead to inter-community violence in the UK. We are satisfied that the Appellant’s words and actions tend to be inflammatory, divisive, insulting, and likely to foment tension and radicalism.

[…]

[The Appellant] has admitted in criminal proceedings being involved with organisations used to fund Hamas, a group part of which is proscribed as being a terrorist organisation.

The ruling notes that Salah claims he is not antisemitic, and that his defence presented expert evidence that the poem is not directed at Jews in general but only at “those among them who aim at Israeli territorial expansion.” However, the judges rejected Salah’s claim that “what he has said can only be interpreted as expressing his opposition to oppression and injustice in general”, because “our concern is with the impact of the poem and other sayings of the Appellant.” The ruling goes on to point out that for the purposes of “unacceptable behaviour” under the Prevent strategy, the most important criterion is the impact of a person’s words in fostering “hatred which might lead to inter-community violence in the UK”, rather than whether they are intended to be racist. This follows existing legislation against incitement to racial hatred, where the impact that a person’s words have on their audience is given the greatest weight.

While the ruling did not rule specifically on whether Salah’s poem and blood libel comment were antisemitic, it clearly accepts that they have the potential to incite antisemitism in the UK. CST has repeatedly warned of the potential antisemitic impact that extremist preachers and activists from overseas can have on attitudes towards Jews amongst some British Muslims, and the damaging effect this has on wider social cohesion. Today’s ruling supports this concern, which we welcome.

Salah’s defence called two witnesses, Professor David Miller of the Spinwatch campaign group and former police officer Bob Lambert, both of whom contested CST’s expertise in this area. The judgement notes their claim that CST “failed to distinguish between anti-Semitism and criticism of the actions of the Israeli State and therefore gives an unbalanced perspective”, but that both Miller and Lambert accepted it was not “improper for the Secretary of State to seek the views of the CST in this matter”. Needless to say, CST totally rejects the claims of Miller and Lambert that we fail to distinguish between antisemitism and criticism of Israel. Our Antisemitic Incident Reports and Antisemitic Discourse Reports (both available here) lay out this distinction in great detail. However, we were not afforded an opportunity to defend CST’s position during the hearing and no witnesses were called by the Home Secretary’s lawyers to counter their claims. Consequently, CST’s rejection of Miller and Lambert’s ‘expertise’ was not heard in court and is not in the ruling.

In addition, it was alleged before the hearing by Salah’s lawyers that CST had provided “doctored” material to the Home Office regarding Salah. CST completely rejects this wholly untrue claim, which is not mentioned in today’s ruling. It appears to be something given to journalists writing about the case rather than a meaningful claim relied on in court by Salah.

After coming to government last year, the Home Secretary widened the “unacceptable behaviour” guidelines under which foreign nationals could be excluded from the UK, so that they include the fostering of hatred between communities as well as directly inciting violence. This has nothing to do with silencing Palestinian voices, as some have bizarrely claimed; the new guidelines will hopefully prove effective in keeping far right anti-Muslim agitators out of the UK, just as much as Islamist anti-Jewish ones. This was an important test case for the new guidelines, and we are pleased that the immigration tribunal has endorsed them.

UPDATE: The full ruling is now available for download here (pdf), and linked to in the post above.