The military court in the occupied territories is an anomaly which nature would totally reject under normal circumstances. It would not have passed the lowest rank of natural selection. Its neighbors would have devoured it into extinction like fish without flippers, toothless lions, and apes not limber enough to hop from branch to branch. The military courts survived because the Occupied Territories (occupied by Israel in 1967) are a bubble where life conditions are unlike those anywhere else on the planet – its inhabitants inhale carbon-dioxide, and instead of water, its reservoirs are filled with blood that cannot clot.
Israel captivated the territories in war and holds them by force of arms. Therefore, there is no meaning to the question whether these territories, all or most of them, were promised to the People of Israel, and anyone else who had held them in the past 3000 years was an invader and a trespasser – a claim that has been endorsed even by a commission headed by a justice of Israel’s Supreme Court. If they are indeed ours, what is the legal basis for establishing military courts not by Knesset legislation but rather by orders and edicts of the Israeli military commanders of the region? The Knesset does not acknowledge the fact that military courts in “our” territories have already sentenced people to tens of thousands of years in prison. Meir Shamgar, former President of the Israeli Supreme Court, knew very well that if we deny the territories their status as “occupied” or “held”, the legal basis for holding onto them would be reduced to nothing and they would slip into a lawless abyss. This is why he forbade the State to claim that these are not occupied territories, or that the High Court of Justice has no authority to oversee their legality according to international law.
Military courts were established by the military commanders of the region - not by Israeli legislation but rather by force of international law, that recognizes the limited right of an occupying state to establish military courts and pass security legislation regarding the administration of its occupied territory. Therefore, the law by which the military courts act is that of the region’s military commander, and not one legislated by the state’s parliament – the Knesset. The military commander may pass any law he deems fit regarding the administration of the territories, including of course security legislation that is meant to protect the occupying soldiers and the residents of these territories. However, the Occupied Territories have long since sailed beyond the horizon of international law, which clearly assumes that their status is temporary until such a time as some political settlement or other is reached – either annexation or their return to the state that governed them previously.
There is not a single legal forum on international law and not a single expert on international law who recognizes the status of occupied territories that lasts for over fifty years. It is high time to confront a military court in the Occupied Territories with the question of the legal basis for its existence. Another question to be asked in the Occupied Territories: why are settler-colonists not subjected to the military courts?
The State of Israel enjoys the authorities granted an occupying state for the interim but ignores the unequivocal position of international law which claims that the authority to legislate and judge, and of military control, are temporary - given merely for a short transition period from war to political settlement. What has been happening in the Palestinian Occupied Territories – military control and juridical control for over 50 years – is a legal outrage the like of which has not been seen at least since World War I.
The legal basis for legislation and jurisdiction in the Occupied Territories has sunk into the abyss decades ago when it became obvious that there is no intention of reaching a political settlement. The Palestinian inhabitants of the Occupied Territories are born and die having been completely denied any right to control their lives, to constitute an identity, or to choose a political or economic system. Any attempt to regain even a slight bit of freedom might be considered as an act of terrorism, placing them at the mercy of the Israeli military court, which can sentence them – by ‘security’ legislation – to decades in jail.
The military commander is the exclusive legislator in the Occupied Territories. While his laws are subject to supervision by the Israeli High Court of Justice, the Court does not tend to interfere. Thus, the military commander may change his own rules nearly unhampered – plant thorny bushes, toxic plants and bad weeds anywhere he pleases in the legal space of the Occupied Territories. This is how, during the fifty-two years of occupation, a normative, tangled and dangerous jungle has sprouted, full of edicts, instructions, orders and declarations that are publicized – only because they must be – in all sorts of esoteric publications of the military attorney’s office, usually in Hebrew alone. Internet access to them is practically as difficult as access to secret bank accounts in Panama. Anyone entering the military commander’s edict jungle unassisted risks getting lost, ending up surrendering and taking himself – as a last effort – to the military court which then seems, by comparison, like an oasis, a spring of fresh water.
This is a forgivable delusion by a person who tried all by himself to blaze his way in the toxic law of the occupied territories. The military courts are no shady oasis in the desert, but rather the lair of a predator. The judges at military courts are military men. The army chooses them. No commission for the appointment of judges examines their skills. These positions are given mostly to military prosecutors, whose appointment as judges is the natural road to their military promotion. Nothing protects their office and role, and the possibility of being demoted back to prosecutors, or appointed to other jobs such as human resource officers at the far end of the army’s kingdom, is a constant threat.
Defendants accused of serious offenses that bear capital punishment or life sentences are tried by a tribunal of three judges. Until 2002 only one of whom was a trained lawyer, the others were military officers, lacking any legal training or knowledge, and thus nearly always subservient to the lawyer-judge who knows the law while they don’t have a clue. Since 2002, all the judges are lawyers, often one or two of them lawyers doing their reserve duties but lacking real knowledge of criminal law. The lawyer-judge is a civil or criminal lawyer who sits in an urban office tower when one day an envelope lands on his desk, stamped with the Israeli army’s triangle seal. He leaps for joy being called up for reserves duty. This is usually a happy occasion: a welcome break in his routine. And although the uniform has become too tight for his paunch, the call still gives him a youthful feeling. The steps from the court entrance up to the judge’s seat as the sweet words in Hebrew and Arabic ring out – “court in session” – seem almost like a dance move.
Military courts were meant to add some legal spice to the stark military power, to populate the prisons, to collect fines for the benefit of the occupation. The game is rigged – the judge, who until recently had been a prosecutor, sits even now in an office next to the prosecutor’s. In a moment, they will have lunch together – if only the defense lawyer would conclude his tiresome arguments already!
The military commander can change the rules of the game as he sees fit. The military commander may also interrupt the game in the middle and subject the defendant to the doomsday weapon – administrative detention. At times, the military court allows the defendant to win, perhaps because a lawyer-judge has arrived in court who was taken straight out of the defense of an insurance company and has not had time to receive adequate instruction. And thus the lawyer-judge unthinkingly acquits the defendant of shooting at a settler-colony in the Occupied Territories. He acquits him, this naïve lawyer, because he feels that conviction should be based on at least one incriminating witness appearing in court, and not on a memorandum prepared by the Israeli Security Services. The military court system accepts such an acquittal because it needs the occasional appearance of a fair trial.
The formulators of the Geneva Convention, which serves as a constitution of sorts - allowing an occupying state to establish military courts in occupied territories – never imagined that military courts would operate in the Occupied Territories for over half a century. If those formulators had thought so while dining in a small, cozy restaurant on the banks of Lake Geneva, would they not have established an expiration date for military courts?
The military courts are usually situated in trailers that are reminiscent of train cars moving on railways far from here, perhaps to remind us that military courts are supposed to be temporary, in effect only until the occupation ends. But the occupation does not end. When the place where the military court once stood changes its legal definition as occupied territory, but remains under the security and civil control of the State of Israel – the trailer moves only a few meters away and is placed in a non-place, on the seam line between occupier and occupied. Thus, the Jenin military court moved two stops to Salem, and the Ramallah military court to Ofer, which is a surreal place with no other purpose than to serve as a military court.
Once I saw a military court go up in the air – the court at Erez Crossing. At some point, the Gaza military court had been moved into it. But this too was moved one day and all the Gaza files were transferred to the court in the Israeli city of Beer Sheva. On the last day of the court’s session at Erez, I was involved in a trial there. Everyone urged me to close the file with a plea bargain stating that the defendant - accused of bringing foreign currency into Gaza - be released and sent home that very day. The defendant refused: several people to whom he had lent money were still in jail – he was a professional money lender – and he wished to go back to the prison to collect the debts. A collection was nearly held in court just in order to return his money so that he would agree to be released. Finally, the matter was resolved. When I and the intern who was with me drove back from Erez to Tel Aviv, we suddenly heard a loud noise. We looked back and saw the Erez military court go up in fire and smoke – a scene no less wondrous than the Prophet Elijah rising up in the air in a chariot of fire.
Let that be the fate of all military courts. In actual fact, these temporary courts stand like stations of ghost trains and continue to pass judgment. Palestinians living in the Occupied Territories have grown accustomed to seeing them as part of the Israeli occupation landscape. Lawyers arriving at the military courts from Israel or from the Occupied Territories are willing to take part in this masquerade, to cite laws and clauses, to don a black gown, to wear a black tie, to crush any argument between the revolving blades of legal lingo, and to turn it into proper legal mush. And only the stench that arises from this mush reminds us that it is made of human beings whose soul has been taken from them, who have been ground into powder in the occupation mills.
Attorney Avigdor Feldam recalls: "During my 45 years as a lawyer, I appeared in military courts in every region -- including those that are long-forgotten -- in Gaza, Erez, and Jenin. I appeared in the military appeals court in Ramallah, I appealed to the Supreme Court against military courts’ decisions on deportation, administrative detentions, and demolition of houses. I spoke in the legalistic language that the legal process imposes on lawyers, and didn’t express the humiliation, helplessness, sorrow, and loss of hope. Looking back, I didn’t contribute to ending the occupation, but only made it bearable, nice and conversational. But this is a conversation where only our side has the right to speak, while the other, the occupied, the protected under the Geneva Convention, is mute."