Translation in the military courts
[10 March 2014] – On 3 February 2013, the Israeli Supreme Court, sitting as the High Court of Justice, handed down a decision relating to the duty to translate documents into Arabic in the military courts in the West Bank in which Palestinian civilians are prosecuted. The petition in Khaled el-Arej v Head of the Central Command argued that there is a legal duty that requires all interrogation material, indictments, transcripts of court proceedings and court decisions be translated into Arabic to ensure a fair trial. During the course of the hearing the Applicants did not press the claim relating to interrogation materials and court transcripts. The Court noted that these issues could be re-aired at first instance.
At the hearing of the petition on 17 October 2012, the Respondents gave an undertaking that all indictments in the military courts would be translated into Arabic. On 28 November 2012 Military Order 1651 (Article 116 (A1)) was amended as follows:
(A1)(1) If the defendant attends the trial, the indictment that was submitted against him will be translated into the Arabic language, unless the defendant or his representative waives this right.
The Applicants welcomed the amendment to the military law regarding the translation of indictments into Arabic but argued that it was inappropriate to include a waiver. For technical legal reasons the Court ruled that the appropriateness or otherwise of a waiver must be considered in a separate petition after the Applicants had first raised their objections with the appropriate military authorities.
Whilst the Court noted that there is an obligation under military law to provide simultaneous translation in court through an interpreter, the Court ruled that the much broader question of whether all or some of the decisions of the military courts should be translated into Arabic for their value as precedents was not fully explored before the Court. Accordingly, the Court reserved its decision regarding the duty to translate decisions of the military courts for their precedent value and invited the Applicants to re-open this issue at any time.
The simultaneous translation provided to Palestinian defendants in the military courts has been criticised over the years as being uneven, and on occasion, non-existent. In its 2007 report – Backyard Proceedings – Yesh Din described the translation in the military courts as follows:
“Of 648 observation forms on which the observers noted their impression of the scope of the translation, only 23% of the forms indicated that the translation was “full,” and 37% of the forms assessed the translation as “reasonable.” On the other hand, in 35% of the hearings observed by Yesh Din observers the translation was “partial or sloppy,” and in another five percent there was no translation whatsoever.”
Questions regarding the adequacy of the translation in the military courts continue to be raised six years on with one boy recently claiming that the in-court tranlation made no sense to him. Some support for this claim was also recently observed by MCW (19 February 2014) when a military court judge was forced to take over the role of translating after correcting the official translator on numerous occasions. It should also be noted that not all of the military orders relevant to the prosecution of Palestinian children in the military courts have been translated into Arabic (see for example: MO 1711 and MO 1726).
The decision of the Court in Khaled el-Arej v Head of the Central Command was delivered in Hebrew and is not available in Arabic.
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