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Military Courts project
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Why should the rights of terrorists tried in the Military Courts be defended?
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Any person accused of committing a criminal offense is entitled to a fair trial and the Military Courts, just like any court, are supposed to adjudicate the defendants brought to them on the basis of the law and according to due process, regardless of the charges brought against them. Various provisions of international law set standards for the existence of due process in all kinds of courts, including military courts. The implementation of the conditions for due process is a duty of the Military Courts in the Occupied Territories (OT), and that system does not dispute that. |
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Is it legal to judge civilians in military courts?
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The short answer is yes. Article 66 of the Fourth Geneva Convention allows the military authorities in an occupied territory to prosecute in military courts civilians accused of offenses of harming security and public order in the boundaries of the occupied territory.
However, a closer scrutiny of the way the Military Court system operates shows a noncompliance of the Military Court system in the OT with the requirements of international law. This includes the jurisdiction of the Military Courts, which was expanded by orders of the Military Commander well beyond the scope of security and public order offenses. The Israel Defense Forces (IDF) gave the Military Courts the power to also adjudicate offenses which were under the purview of the "regular" courts that existed in the OT before 1967, as well as offenses committed outside of the OT. Furthermore, in complete contravention of the Fourth Geneva Convention, which determines that such courts should be located inside the occupied territory, "extensions" of the Military Courts operate inside the State of Israel: in Petach-Tikva, Jerusalem, Ashkelon and the Kishon Junction. Moreover, international law did not foresee that belligerent seizure, such as Israel maintains in the OT, would last so long - more than 40 years. During this time the exceptional judicial arrangement of adjudicating civilians by a military tribunal became a permanent condition. |
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Do the Military Courts in the OT also adjudicate Israeli civilians?
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Section 7 of the Order Concerning Security Provisions (OCSP) grants the Military Courts in the OT territorial and extraterritorial jurisdiction to adjudicate any person who committed an offense, inside or outside the OT, whatever their nationality - Israeli, Palestinian or other. Nonetheless, Israeli citizens are not adjudicated in the Military Courts, even when they commit unequivocal security offenses in the OT, and there is no legal contest of the jurisdiction of those courts to adjudicate them. Instead they are judged in the "regular" courts within the boundaries of the State of Israel, after the Israeli courts were given jurisdiction in Section 2 (a) of the Emergency Regulations Law (Judea and Samaria, the Gaza Strip, Sinai and Southern Sinai - Judging of Offenses and Legal Assistance), 1967, as they were amended and updated periodically.
The result is the establishment of a dual judicial system in the OT, according to which a person is arrested, charged and judged by a system determined by their national identity. An Israeli civilian living in the settlement of Itamar and a Palestinian civilian living in the adjacent village of Beit Fourik, each of whom commit the crime of manslaughter, for instance, will be arrested according to different systems of law: the one according to the military OCSP, which allows up to eight days in detention followed by extensions of 30 days each for up to three months, and the other according to the Israeli Criminal Procedure Law, which requires a detainee to be brought within 24 hours before a judge, who is authorized to extend his remand by 15 days, for a total of no more than 30 days. They will be judged in different courts: the Israeli will be judged in the Magistrate Court in Kfar Saba, and the Palestinian in the Military Court in Salem. The Israeli will be judged by the Israeli Penal Law, and if convicted, may be sentenced to up to 20 years in prison. The Palestinian will be judged according to the OCSP and may be sentenced to as much as life in prison.
In addition to the aforementioned, the law enforcement system upon Israelis who commit offenses in the OT called "ideological," including offenses of violence, has been harshly criticized for years for its ineptitude and failure to prosecute criminals. Therefore, the separation between the legal systems for Palestinians and for Israeli residents of the OT is not a technical separation but a material discrimination. |
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What kind of offenses are defendants in the Military Courts tried for?
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The indictments served against Palestinians in the Military Courts concern a broad range of offenses, which the IDF divides into five separate categories. The category of "Hostile Terrorist Activity" (HTA) includes involvement in committing terror attacks, military training, weapons offenses and weapon trading, but also offenses related to membership in "illegal associations" - associations outlawed by the military commander. Indictments in this category, from 2002 to 2006, accounted for one third of the indictments filed in the Military Courts.
The second category, "Disturbance of Public Order", includes offenses such as stone throwing and incitement to violence. "Classic" criminal offenses - theft, robbery, trading in stolen goods and so on - constitute a third category. In the last years a new category has been added - Illegal Presence in Israel (IPI), including the offense of "leaving the Area without permission," with which Palestinians who enter Israel without permits are charged, usually having gone to look for work. The last category includes traffic offenses committed in the OT, and the number of indictments filed for it in the years 2002-2006 is slightly greater than the number of indictments in the HTA category.
Figures Yesh Din collected on indictments filed in the years 2004-2006 show that, contrary to the common perception of the nature of cases heard in the Military Courts, indictments for offenses of intentionally causing death and attempting to intentionally cause death together constitute only five percent of the indictments filed in the Military Courts. |
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Who are the judges in the Military Courts in the OT?
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The judges in the Military Courts in the OT adjudicate thousands of files a year, at tens of thousands of separate hearings, and they are all IDF officers with legal training.
The judges are divided into two groups: 14 judges in career military service (to which two additional judges are going to be added) sit on the bench during Military Court deliberations on a regular basis. They are supported by some 140 reserve service judges. The reserve judges are Israeli lawyers who do their reserve service, for a few days a year, as judges in the Military Courts.
In the report "Backyard Proceedings," Yesh Din recommended replacing the reserve judges - the admission threshold for their job being limited to five years of experience as lawyers, with no requirement for judicial experience or experience in criminal law - with the arrangement prevailing in the courts-martial where IDF soldiers are tried: appointing retired military judges as "associate judges," who sit on the bench as their reserve service. |
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If Defendants do not receive all the rights they deserve, is it not the fault of their attorneys?
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Like in any profession, among the attorneys who work in the Military Courts some are better than others. But the report "Backyard Proceedings," published by Yesh Din, lists a series of conditions that greatly limit the ability of the attorneys in the Military Courts to provide their clients with the optimal defense; it is the Israeli authorities who are responsible for those conditions.
Among other things there is the fact that Palestinian attorneys are not usually permitted to visit their clients in custody in Israel; Israeli lawyers and residents of East Jerusalem who visit the prison facilities inside Israel are often subject to harassment. The conditions under which they are forced to meet their clients do not encourage visiting their clients, hinder the preparation of a legal defense and raise concern of a violation of the confidentiality which applies by law to communications between them. Likewise, a very large number of detainees - a former military prosecutor estimated some 60% of the detainees - are subject to orders preventing them from meeting a lawyer in the initial stages after their arrest. Those orders may remain in force for a month from the moment of arrest; in many cases the courts extend the detention of suspects on the basis of confidential material presented only to the judge for review; after an indictment is filed, the defense attorneys receive the investigation material written almost completely in Hebrew, a language in which most of them are not proficient. In cases when the evidence includes General Security Service (GSS) investigation material, it is sometimes provided only in response to a special request and after some time. The current judgments and legislation are not accessible to the attorneys, whether Palestinian or Israeli, which impairs the preparation of the defense and their ability to make informed decisions regarding their clients options and to advise them accordingly.
Thus, even though the majority of detainees and defendants receive legal representation, the ability of the attorneys to defend their clients effectively is materially impaired by the policy and provisions of the Israeli authorities. |
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What are the main lapses and defects in the area of due process in the Military Courts found by Yesh Din?
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The lapses that were found are many and extend across the whole area of due process rights checked by Yesh Din. It begins with the incompatibility of provisions set forth by the Security Legislation - the legislation to which the residents of the OT are subjected - with the minimal international standards of due process, it continues with serious defects in the implementation of the principles of presumption of innocence and publicity of trial, and it ends with material violations of different rights of the defendant, including the right to know the charge, the right to trial without delay and the right to prepare an effective defense. Among other things some of the most serious defects relate to the adjudication of minors and the translation into Arabic of legislation, judgments, investigation material and interpretation in the courtroom.
Yesh Dins findings on these matters are described in detail in the report "Backyard Proceedings." |
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Who is responsible for the lapses in the implementation of due process rights in the Military Courts and their correction?
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Yesh Dins research revealed a long series of lapses and defects in the area of due process rights in the Military Courts. Some of the defects were found in the area of the Security Legislation. In those cases where that legislation is not compatible with the minimal international standards, the direct responsibility for them belongs to the "military commander," namely the OC Central Command; other defects were found in the areas of activity of the Military Court Unit, the Military Prosecution in the OT and the Israel Prison Service. Yesh Din composed recommendations for those bodies to make the necessary corrections and will monitor their reaction to the recommendations.
However, it should be remembered that the OC Central Command "stands in the shoes of the sovereign" in the OT and bears the responsibility both for the lapses and for their correction. A large part of the recommendations made by Yesh Din can be implemented by orders signed by the OC Central Command, orders considered "primary legislation" in the OT. |
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What is wrong with plea bargains?
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The vast majority of files adjudicated in the Military Courts end with plea bargains. In fact, of the 8,854 files that reached verdict in 2006, only 130 ended after a full judicial process ("proof trial") in which witnesses were questioned, evidence was examined and closing statements were delivered.
It is no accident that legislators in every country in the world including Israel established procedures for full proof trials, in which witnesses are heard and questioned and the parties are given the opportunity to make their arguments in full: all these procedures guarantee a fair trial with the smallest possible risk of miscarriage of justice.
The parties in the Military Courts are pushed into plea bargains for a number of reasons. As a result of the combination between the investigation methods used by the GSS - and which, according to human rights organizations, include threats and physical measures of investigation - and the prohibition imposed on many detainees against consulting an attorney during their investigation, many defendants come to court after admitting to the offenses attributed to them or having been incriminated by others; the heavy caseload in the court leads all the parties - defense attorneys, prosecutors and judges - to seek plea bargains as a quick way to conclude the processing of a file; attorneys who represent clients in the Military Courts feel that conducting a full proof trial, including summoning witnesses and submitting evidence, usually leads to a much harsher sentence; a sort of "punishment" imposed by the court on a defendant who did not reach a plea bargain; added to all the above is the lack of trust on the part of the Palestinian defendants and their families in the military justice system, and their preference of reaching a plea bargain rather than leaving the verdict to the judge. |
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