Military legal system
In order to function efficiently, the military legal system relies on a network of military bases, interrogation centres, police stations and prisons in the West Bank and Israel - as well as the military courts themselves. Palestinians suspected of an offence under military law are generally arrested by the army, which maintains custody over the individual for a period of hours or days. This initial period of detention is typically spent in the back of a military vehicle or at a military base or compound inside a settlement somewhere in the West Bank. For less serious offences, individuals are handed over to the Israeli police inside a settlement who then conduct the interrogation. For more serious offences, the individual will be handed over to the Israeli Security Agency (ISA), also known as the Shin Bet, who will conduct a more rigorous interrogation. Generally within a few days of arrest, custody of the individual will be handed over to the Israeli Prison Service (IPS), and in most cases the individual will be detained in a prison in Israel. The IPS, which also has custody of Israeli citizens convicted of criminal offences, is regulated by civilian legislation that includes specific sections dealing with Palestinian “security prisoners”.
Within a few days of arrest, the individual will be taken before a military court judge for the first time. The number of military courts in the West Bank has fluctuated over the decades depending on the prevailing circumstances. The two military courts operating today are located in Ofer military base, near Ramallah, and Salem military base, near Jenin (map). Persons accused of offences frequently only see their lawyer for the first time inside a military courtroom. On the first court appearance the judge will usually decide whether or not the suspect should remain in detention until the end of the legal proceedings. There will generally be around five court appearances, sometimes more, before a case is finalised, usually by way of plea bargain. Because bail is denied in most cases, the quickest way out of the system is to plead guilty, whether the offence was committed or not. This explains why the conviction rate in the military courts is over 99 percent.
Military juvenile court
A new military order establishing a military juvenile court came into effect in September 2009. The juvenile court uses the same facilities and court staff as the adult military courts and is also situated in Ofer and Salem military bases. Significantly, there is no legal requirement for children to be brought before the military juvenile court until the final hearing. This means that all interlocutory applications, including those for bail, can still be heard by an adult military court. In practice however, a military juvenile judge now hears many of these applications. The order establishing the military juvenile court made no change to the time period during which a child can be denied access to a lawyer and provides no special guidelines as to the circumstances in which a child should be released on bail. The regulations relating to the length of sentence that can be imposed on a minor also remain unchanged and are presented in the following table.
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Age
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Classification
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Criminal responsibility
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0-11
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Child
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Cannot be arrested or prosecuted in the military courts.
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12-13
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Juvenile
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Minor
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Maximum 6 months imprisonment.
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14-15
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Young adult
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Maximum 12 months imprisonment, unless the offence carries a maximum penalty of 5 years or more.
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16-17
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Minor / adult
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Must be tried in a military juvenile court but can be sentenced as an adult.
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The most common offence children are prosecuted for in the military courts is stone throwing. It should be noted that the maximum penalties for throwing stones range from between 10 and 20 years imprisonment, depending on whether a vehicle is involved and injury or damage occurs. In theory this means that children aged 14 and above can receive the same maximum penalties available to adults under Israeli military law. However, it should be noted that in practice children convicted of throwing stones in the military courts generally receive sentences ranging from several weeks up to one year. Some key legal provisions relating to the prosecution of children in the military courts are presented in the following table.
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#
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Description
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Military law
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1
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Minimum age of criminal responsibility.
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12
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2
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Minimum age for custodial sentences.
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12
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3
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Age of majority
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16-18
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4
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Legal right to have a parent present during questioning.
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No
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5
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Legal right to consult with a lawyer prior to questioning.
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No
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6
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Legal requirement for interrogations to be audio-visually recorded.
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No
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7
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Maximum period of detention before a child must be brought before a judge.
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24-48 hours
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8
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Maximum period of detention without access to a lawyer.
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96 hours
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9
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Maximum period of detention between being charged and conclusion of trial.
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1 year
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Two years after the establishment of the military juvenile court, B’Tselem, one of Israel’s leading human rights organisations, assessed its impact and concluded that: “The rights of Palestinian minors are flagrantly violated at every stage of the proceedings concluded against them, from the initial arrest and removal from their homes, through interrogation and trial, to serving the prison sentence, and then release … The amendments to the military legislation are marginal and have failed to bring about meaningful change in the military system’s treatment of minors.”
Judges and lawyers
There are currently around 20 regular army judges and 150 reservist judges serving in the miiltary courts. Since 2004 all military court judges must be legally qualified and they have the same status as civilian District Court judges inside Israel, although they are paid less. A single military court judge has the jurisdiction to impose a maximum penalty of 10 years imprisonment. For longer sentences, a panel of three judges is required. There is no requirement for a military court judge to speak Arabic – the language of the defendants. For more information on the military courts and judges see the documentary film - The Law in These Parts.
There are approximately two-dozen Palestinian and Israeli lawyers who appear regularly in the military courts on behalf of defendants. The prosecutorial staff members and other court staff are all serving Israeli military personnel. Most defence lawyers are employed by the Palestinian Ministry of Justice or work for local NGOs and provide their services free of charge. Foreign donors generally cover the cost of these legal services, as the Israeli military authorities do not provide legal aid. The remaining lawyers are in private practice and in many cases their fees are paid for by the defendants.
Rights of appeal
In 1989 an appeal court was established for the first time. The Military Court of Appeals also operates out of Ofer military base and its decisions are binding on the lower military courts. Shortly after the occupation began in 1967, the Israeli Supreme Court, sitting as the High Court of Justice, began accepting petitions to review the actions of the military authorities in the West Bank. There are two schools of thought regarding the involvement of the Supreme Court in hearing petitions from the West Bank. One school of thought cites this involvement as evidence that checks and balances are in place to guarantee the rule of law. The other school of thought sees the Court’s involvement as an attempt to legitimise government actions in the West Bank. Some key decisions of the Supreme Court relating to the military legal system and the occupation are summarised here.
Translation
Proceedings in the military courts are conducted in Hebrew. The military authorities supply serving personnel with a knowledge of Arabic to provide translation which is of varying degrees of quality, ranging from good to incomprehensible. The judgments of the court are also published in Hebrew, as are the 1,700 military orders issued since 1967. Under Article 65 of the Fourth Geneva Convention, all penal provisions enacted by the Israeli military authorities are supposed to be published in Arabic and brought to the knowledge of the local population. In theory, this failure to do so means the military orders having no legal effect.In practical terms, the lack of adequate translation of proceedings, military orders and military court judgments, places most Palestinian defence lawyers at a distinct disadvantage.
Location of prisons
There are currently 20 IPS facilities used to detain Palestinians, including three facilities used for children. Nineteen out of 20 of these facilities are located inside Israel. Only Ofer prison is located inside the West Bank. At any given time, over 85 percent of adult detainees, and over 55 percent of child detainees (statistics), are held in prisons inside Israel. Under Article 76 of the Fourth Geneva Convention all of these detainees are supposed to be held in the West Bank. This violation of the Fourth Geneva Convention has been continuing for over four decades and constitutes a “grave breach” of the Fourth Geneva Convention for which persons involved can be liable to criminal prosecution (Articles 146 and 147).
