Israeli military justice in occupied Palestine: Palestinians are always guilty

Hearing in Gaza Military Court, August 1967

Photo: Moshe Milner

Since the occupation of the Palestinian Territories in 1967, and to this day, Palestinian citizens charged with security-related and other criminal offenses are tried in the Israeli military court system in the Occupied Territories. More than 150,000 Palestinians have been prosecuted in these courts since 1990, and about half the prisoners currently being held in Israel were sent to prison by the military courts.

Yesh Din, an Israeli NGO comprised of volunteers who have organized to oppose the continuing violation of Palestinian human rights in the Occupied Palestinian Territory (OPT), carried out in-depth research on the implementation of due process rights in the Israeli Military Courts in the West Bank. It has now published a comprehensive report entitled Backyard Proceedings.

This report provides accurate and far-reaching information about a system that is a cornerstone of the Israeli occupation in the West Bank. The findings clearly expose massive violations of due process, from the realisation of a defendant’s right to know the charges against them and to prepare an effective defence, to the respect to principles such as the presumption of innocence and public trial.

Fast food justice

Yesh Din volunteers conducted an impressive study, observing 800 courtroom proceedings and interviewing Israeli military court personnel and defence attorneys, and their findings are damning for Israel.

For instance, they observed 118 detentions hearings, which are to decide the release of a detainee from custody or not. Their conclusion: these hearings lasted on average three minutes and four seconds, and have led to extended detention in all but one case. Thus, the detention of suspects brought before the military courts is almost always extended, in hearings that are concluded in a matter of minutes.

Other hearings to authorize “arrest until the end of proceedings” took even less time: one minute and 54 seconds, on average. In all such hearings that Yesh Din observed the court decided to authorize detention of the Palestinian defendant. According to the Israeli military, by the end of 2006, two thirds of the defendants whose cases were still under deliberation in the military courts were held in detention. These decisions were taken in less than two minutes.

And these legal proceedings are systematically very long. Yesh Din documents that after the decision to maintain the Palestinian defendant in jail, the first session of trial takes place on average 61 days later, the second one 51 days later, and the average time between any two other stage of the trial is 52 days. Therefore Palestinians are routinely jailed for more than a year, and sometimes even more than 2 years whilst awaiting trial.

Palestinians are always guilty

Yesh Din researchers established that during 2006, Israeli military courts concluded 9,123 cases, and found the Palestinian defendant entirely not guilty in 23 cases. That is 0.29% of all cases! But in fact, of these 9,123 cases, only 130 were concluded after a full evidentiary stage consisting of the presentation of evidence and interrogation of witnesses. That is 1.42% of the cases concluded in 2006.

The reality is that the immense majority of these cases, 95% of them according to Yesh Din, were concluded in plea-bargains.

The Israeli military court system condemns virtually all Palestinians who are indicted, and does so in the overwhelming majority of cases without a full trial but through plea-bargains. The Yesh Din reports examines all the reasons driving the different parties in the Israeli military courts towards plea-bargains. Among them, the fact that “defence attorneys feel that conducting a full trial, including the summoning of witnesses and submission of evidence, usually brings along a penalty far more severe, a sort of ‘punishment’ inflicted by the court on a defendant who did not have the good sense to reach a plea-bargain.”

Lastly, Yesh Din examines how attorneys are prevented from doing their work properly, how the Israeli military spies on attorney-client conversations or how the Israeli military court system – designed to try only Arabic-speaking persons – operates only in Hebrew and fails to provide adequate translation.

Adding insult to injury: The Israeli military replies to Yesh Din

Following highly professional standards, the Yesh Din researchers sent a draft of their report to the appropriate Israeli military authorities to engage in dialogue and seek an official reply. They did receive a lengthy reply, but they had to abandon their original idea of publishing it in extenso with their report because of its harsh style, distortions and insulting content, and “the recurring leveling of charges with no basis as a substitute for a substantive answer, while completely ignoring the vast majority of the report’s findings and recommendations.”

The executive summary of the Yesh Din report provides for short and insightful reading while the full report is an invaluable source of information.