Military Court Watch

Civilian legal system

Israel's civilian legal system is relevant to the military legal system in a number of ways. First, the Supreme Court, sitting as the High Court of Justice, has jurisdiction (Basic Law - Judiciary - Section 15) to “deal with matters in which it sees need to grant a remedy for the sake of justice and which are not within the jurisdiction of another court”. Since 1967, the Court has exercised this jurisdiction to hear petitions concerning the activities of the Israeli military in the West Bank and Gaza Strip. Secondly, some of the regulations concerning the treatment of Palestinian detainees are found in Israeli civilian law, such as provisions governing the Israeli Prison Service. Accordingly, litigation arising out of these regulations are heard in the District Courts. The decisions also provide a useful comparison between the military and civilian jurisdictions in similar cases.

The two tables below present information concerning a number of decisions of the High Court of Justice and the District Courts that are relevant to the issue of children in the military legal system.

Decisions of the High Court of Justice

Case	Date	Issue	Details	Link
Anonymous and ors v Commander of IDF Forces and ors	2018	Social welfare reports at remand hearings in the military courts	The petition sought the mandatory introduction of social welfare reports at remand hearings for Palestinian children in the military courts. Such reports are mandatory for Israeli children in the civilian legal system. In dismissing the petition the court noted that the military authorities have prepared a draft amendment to the military law giving the courts a discretion to order the production of a social welfare report.	Heb Eng
Ministry of Palestinian Prisoners v Minister of Defence	2014	Dual legal systems in the West Bank	The Appellants argued that applying different time periods under which an accused person must be brought before a judge depending on whether that person was Palestinian (subject to military law) or an Israeli settler (subject to civilian law) violates both international and Israeli law and the relevant laws must be equal. In largely dismissing the petition, the Court noted that the military authorities had gone some way to reducing the gap between the two legal systems, and given the prevailing security situation, the differences are "reasonable and proportional".	Heb Eng
Khaled el-Arej v Head of the Central Command	2013	Translation	The petition 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. Prior to judgment, the military authorities amended Military Order 1651 to require that all indictments be translated into Arabic. This right can be waived by the defendant. The Court did not rule on the other issues raised.	Heb Eng
Yesh Din v Commander of IDF Forces in the Judea and Samaria	2010	Transferring prisoners out of occupied territory	The Court declined to reverse its earlier decision in the Shukeri case based on the principle that the Fourth Geneva Convention is not enforceable in Israeli domestic courts as it has not been incorporated into domestic law by the Knesset. Further, customary norms of international law will only be enforced in domestic courts where there is no inconsistency with domestic law. Chief Justice Beinisch noted that if the authorities could guarantee better conditions for detainees by holding them in Israel, rather than in West Bank, as required under Article 76 of the Convention, then they were conforming with “the substantive provisions of the Geneva Convention relating to conditions of detention,” if not its strict terms. The Court also noted in passing that to build prisons inside the West Bank would require the requisition of Palestinian land, which was undesirable.	Heb Eng
PCATI v State of Israel	2009	Contempt of court	A petition was filed alleging that Israeli Security Agency interrogators (formerly the GSS) continued to use interrogation techniques prohibited by the Court’s 1999 ruling on torture, thus amounting to a contempt of court. In rejecting the petition the Court, headed by Chief Justice Dorit Beinish, ruled that the contempt of court procedure is not the appropriate one for clarifying claims of violation of court decisions whose nature is "declarative".	Heb
Yisascharov v The Head Military Prosecutor	2006	Admissibility of illegally obtained evidence	The Court was required to interpret Section 12 of the Evidence Ordinance, which provides that a confession must be given “freely and willingly” for it to be admissible. The Court ruled that this expression “should not be given a literal interpretation ... but a technical-legal one, according to which a confession of an accused will be inadmissible ... only if improper 'external pressure’ was exerted on him at the time of the interrogation to such an extent that it was capable of undermining his ability to choose freely between making a confession and not making one.” The Court noted that judges have a discretion whether or not to admit illegally obtained evidence, and factors to be taken into account are: first, the character and seriousness of the illegality that was involved in obtaining the evidence; secondly, the seriousness of the offence; thirdly, the degree to which the improper investigation method affected the evidence that was obtained; and fourthly, he social damage and social benefit involved in excluding the evidence.
Zaharan Yunis Muhammad Mara’abe et al V The Prime Minister et al	2005	Application of the Fourth Geneva Convention	The Court noted that the International Court of Justice had opined that the Fourth Geneva Convention applies in occupied Palestine. Nevertheless, the Court stated that, as it was accepted by the Israeli authorities that the humanitarian norms of the Convention were applicable, it saw no need to rule on this question. Although the Court has never positively ruled on the application of the Fourth Geneva Convention it frequently refers to the Convention in its judgments.
A v State of Israel	2005	Custodial sentences for minors	Justice Dorit Beinisch (as she then was) - “Placement of minors under age 14 in prison holds the potential for disproportionate harm to the minor. Incarcerating a minor of an age close to the age of childhood is liable to harm him much more than it would an adult who is incarcerated, and the result is manifestly undesirable, possibly even unjustified.”
PCATI v Government of Israel	1999	Torture	The petitioners challenged internal regulations that permitted GSS interrogators to use “physical means” on suspects in certain cases. The physical means included shaking, holding stress positions, excessively tight handcuffs and sleep depravation. The Court ruled that: first, there was no legislative authority authorising the use of these “physical means”. Legislation would be required and it would have to be in conformity with Israel’s basic law. The Court did not consider whether such legislation would place Israeli in breach of its legal obligations under the UN Convention against Torture (CAT). Secondly, a reasonable interrogation is necessarily one free of torture, free of cruel, inhuman treatment, and free of any degrading treatment whatsoever. Thirdly, the Court left open the question of whether an interrogator accused of torture could successfully raise the defence of “necessity” under Section 34 of Israel’s Penal Law. However, the Court found that Section 34 does not provide any prior authorisation for the use of physical means. There was no discussion whether a defence to torture based on Section 34 would violate Israel's obligations under CAT.	Eng
Shukeri v Minister of Defense	1990	Transferring prisoners out of occupied territory	The prohibition against transferring Palestinians from the West Bank to prisons inside Israel is primarily found in Article 76 of the Fourth Geneva Convention, which was ratified by Israel in 1951. Israel has a dualist legal system which means that before an international treaty can be enforced in a domestic court it must first be incorporated into domestic legislation by the Knesset. The Knessest has not passed legislation incorporating the Fourth Geneva Convention into domestic legislation and accordingly the Court ruled that it is not enforceable in Israeli courts.
Sajedia v Minister of Defense	1988	Transferring administrative detainees out of occupied territory	The petition relied on Articles 49 and 76 of the Fourth Geneva Convention that prohibits the transfer of persons out of occupied territory. The Court rejected the petition on the grounds that the Fourth Geneva Convention has not been incorporated into Israeli domestic law and is therefore unenforceable in domestic courts. Further, customary norms of international law will only be enforced in domestic courts where there is no inconsistency with domestic law. According to this principle, the Israeli security regulations permitting the transfer of prisoners to Israel prevail over the contradictory terms contained within the Fourth Geneva Convention. Justice Shamgar further ruled that Article 76 only applies to convicted prisoners, not persons held on administrative orders.
Taha v Minister of Defense	1988	Penalising parents for the crime of a child	A fine may be imposed on the parents of a minor below the minimum age of criminal responsibility suspected of throwing stones. The military commander may impose the fine directly, without the involvement of the police or the military justice system.
Ayyub v Minister of Defense	1978	Fourth Geneva Convention	The Fourth Geneva Convention is not enforceable in Israel’s domestic courts because the Knesset has not incorporated the treaty into domestic law (Like the UK, Israel has a dualist legal system requiring legislation to incorporate treaties into domestic law).

Decisions of the District Court

Case	Date	Issue	Details
State of Israel v A.M.	2008	Sentencing	A 15-year-old boy was convicted after confessing to throwing stones and hitting a police car in Israel. Under Israeli civilian law it is mandatory following the conviction of a minor for a social welfare report to be prepared to inform the court as to the appropriate punishment. The court found that although the crime was serious and the police car was damaged, rehabilitation is the guiding principle. Accordingly, no conviction was recorded and the minor was given a community service order.
State of Israel v A.B.	2008	Sentencing	A 15-year-old boy was convicted after confessing to throwing stones and hitting a car in East Jerusalem. The District Court in Jerusalem used the case to consider what is the proper punishment for teenagers who throw stones. Generally in such cases Israeli civilian courts will give minors a suspended sentence or not record a conviction and give a community service order.
Mohammad Frehat v Israel Prison Service	1997	Education in prison	The court ruled that Palestinian child detainees are entitled to the same level of education as their Israeli counterparts in prison, “subject to security”. Subject to security has subsequently been interpreted by the prison authorities to prohibit teaching Palestinian children history, geography and the sciences whilst in Israeli custody.