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When justice is neither done nor seen to be done

July 24, 2023 at 11:00 am

Three members of Palestine Action activist group who used an extinguisher to throw red paint at Elbit’s doorstep during a protest action outside Israeli arms manufacturer “Elbit Systems” HQs, were arrested later in London on Friday, May 20, 2022. [Vudi Xhymshiti – Anadolu Agency]

On 9 March 2021 we were arrested by the Police before we could reach Elbit’s Shenstone factory where some of us intended to occupy the roof and decorate the factory with paint in the blood red colour of the victims of its drones. Elbit is an Israeli arms company.

On 15 May 2023, after a seven-week trial, we were found guilty of intent to cause criminal damage without lawful excuse. Judge Michael Chambers refused to admit all lawful excuse defences under s.3 of the Criminal Damage Act 1971 or let us explain why it was that we had targeted Elbit. The jury was therefore left with the impression that our only purpose was to commit criminal damage.

At no point was the jury told that they have the right to reach a verdict based on whether it was unjust to convict and whether or not the use of the CDA in this case was oppressive. This is despite it being a longstanding feature of British jurisprudence since Bushell’s case in 1670, that a jury has the right to reach a verdict according to their conscience.

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Patrick Devlin, a former Law Lord, said that the right to bring in ‘perverse acquittals’ “gives protection against laws which the ordinary man regards as harsh and oppressive . . . an insurance that the criminal law will conform to the ordinary man’s ideas of what is fair and just. If it does not, the jury will not be a party to its enforcement.”

Similarly Heather Hallett, member of the Court of Appeal from 2005 to 2019 and who is now chairing the COVID Inquiry, said in her 2017 Blackstone lecture on the Role of the Jury: “A jury may refuse to convict in spite of the law and the evidence because it concludes that the law is an unjust law. The jury passes its verdict on the law. Secondly, it ensures that the prosecution and the judge are on trial.”

Israel’s recent attack on Jenin where 12 Palestinians, including four children, were killed is precisely why we targeted Elbit. We should have been allowed to use the defence of necessity whereby it is permissible to commit a smaller crime in order to prevent a far greater ill. However the courts have decided that the victims of Elbit’s drones are too ‘remote’ from Elbit’s factories in this country.

The ‘logic’ that was employed in our trial was that in order to avail ourselves of this defence it was necessary to identify the particular engine in the particular drone that killed the particular child. We believe that this is merely playing with words whilst people are dying. In practice it enables Elbit to avoid responsibility for the death of hundreds, if not thousands, of civilian victims, including children, and allows it to evade legislation on the prevention of war crimes. Elbit are merchants of death plying their lethal trade with the protection of the law.

In a statement, the International Association of Democratic Lawyers called for the release of Palestinian Action prisoners and noted how, on 21 June 2023, an Elbit drone extrajudicially assassinated three Palestinians in Jenin. This is a war crime as was the attack on Jenin whereby thousands of people were evicted from their homes and forced to wander the streets without food, water or shelter.

The International Criminal Court Act 2001 (ss.51/52) make the commission of war crimes by British nationals or residents, or being ancillary to war crimes, be they in this country or abroad, an offence. It would seem obvious that actions intended to prevent the production of Elbit Drones in this country must be lawful in so far as such actions are intended to prevent the commission of far greater crimes.

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In the eyes of our judiciary, criminal damage against Elbit factories is more serious than the enabling war crimes.

We are, at the moment, awaiting sentence and have been remanded for reports. HHJ Chambers has stated that our offences ‘cross the custody threshold. The date of sentencing was originally intended to be on 26 June. It was then postponed to 10 July and then 11 August. The latest date is 1 September and we understand that it may be postponed again.

This continual delay in sentence is in itself a form of punishment as a cloud of uncertainty hangs over all of us. One of us lost his job due to the conviction imposed and finding other means of employment will be extremely difficult while there is no closure. Overall, this case has been hanging over us for more than two years and now it is being delayed again for reasons that we have not been given but which we understand to relate to the inability of the court to agree a date with our barristers.

We have therefore decided to issue this statement in order that people who have been following the trials and prosecution, some would say persecution, of Palestine Action activists, are made aware of what is happening in this case.

The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Middle East Monitor.