CourtWatch – Observations on Working of the Military Courts - 2013 | Machsomwatch
אורנית, מהצד הזה של הגדר

CourtWatch – Observations on Working of the Military Courts - 2013

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Saturday, 15 June, 2013


     MachsomWatch Organization focuses on the restriction of movement that the IDF imposes on the Palestinian population. While monitoring checkpoints, we were made aware of another method used by the army that completely restricts the Palestinians’ freedom of movement: detention and imprisonment. We began observing the military courts in 2006 in an attempt to find out what happens after detention.

     International law allows an occupation army to establish military courts and prisons in areas under military occupation in order to judge the civilian population, provided such courts are located and operate in the occupied territories. But in Israel, some of the courts and detention facilities are inside Israeli territory. Thus,members of the detaineesinfo-icon` families and some attorneys who reside in theoccupiedterritories require special permits, which are not always obtainable, in order to enter Israeli territory. Many hearings and trials take place in the absence of detainees’ and defendants’ family members, thus violating their civil rights and the right of the general public to know.

     There are two separate legal systems in Israel: one for Israelis, the other for Palestinians in the Occupied Territories. The law prevailing in the Occupied Territories allows detention of a Palestinian for 96 hours (four days) before bringing him/her before a judge [“Due process of law”] An Israeli arrested by the police – even if he/she resides in the Territories – must be brought before a judge within 24 hours (one day). A judge may extend the detention of a Palestinian from the Occupied Territories by 60 days or (with additional authorization) by 90 days)before an indictment is presented to the court. In the case of an Israeli detainee, remand extension is limited to 30 days before indictment is presented.

Palestinians who are minors are often taken from their homes in the middle of the night, then interrogated at night for long hours by interrogators who are often not qualified to deal with juveniles. Palestinian minors are not accompanied by parents, attorney or social worker; they are often incarcerated with adults in holding cells. Israeli minors are interrogated during daytime by qualified juvenile interrogators, in the presence of their parents, attorney or social worker. They are kept with other minors, separated from adult detainees.

     For the most part, the military legal system is based on incrimination; few culprits are actually caught in the act. Solid evidence is rare. Most arrests are made on the basis of interrogations in which detainees inform on neighbors, classmates, friends and acquaintances. The methods of interrogation (sleep deprivation, threats, isolation and intimidation) bring detainees to the courtroom after they have admitted to the charges. Armed with names culled from the interrogations, soldiers invade the villages at night, routing men and boys from their beds and arresting them. The Palestinians have dubbed the army’s list of names “the grocery list”.

     It is a detainee’s basic right to know the charges against him and to understand the language of the record of the interrogation before being asked to sign a statement. The record is written in Hebrew, a language most detainees do not speak. The interrogations are conducted in spoken Arabic, but the interrogators record the procedure in Hebrew; that document is later presented to the detainee to sign. Thus, the detainee signs a document written in a language he neither speaks nor reads.

A detainee has a right to an attorney, but the General Security Service can prevent a detainee from meeting with an attorney for security reasons. The law permits such prevention of legal counsel for up to 30 days, and a judge can further extend it to 90 days. Sixty percent of detainees are barred from seeing an attorney during the most harrowing period of their detention: when they are being interrogated. Even when they have engaged an attorney, he/she is forbidden to see the client’s file during that period because the file, according to the investigators, contains classified material.

     A plea bargain is the fastest way to bring the legal process to conclusion. A legal process that includes deposing and examining witnesses to adduce evidence is a lengthy process whose outcome cannot always be predicted. According to the law, when the accused is an adult and charges involve security violations, detention until the conclusion of the legal proceedings can take up to two years.

     A plea bargain is contingent on admission of guilt. The prosecutor offers the accused reduced penalty in exchange for accepting one or more of the charges. The specifics of the deal – admission and penalty – are usually determined during negotiations between the military prosecutor and the defense attorney. If the two sidesagree on theterms of the plea bargain, the judge approves the deal which, in most cases, is identical to the prosecutor’s proposition.

     It is important for the military justice system to create the impression that the many arrests that the army carries out are justified and based on real crimes and violations. In 2010, 9542 cases were processed through the military courts. Only 82 of them were evidentiary hearings with testifying witnesses; only 25  (i.e., 0.26% of the total number of cases) ended in full acquittal of the defendant. The higher the percentage of confessions, the more reliable and trustworthy the proceedings of the courts appear to be. However, whether there is a plea bargain or a lengthy evidentiary process, most detainees remain in custody until the conclusion of the proceedings, that is, until a sentence is handed down. This procedure in itself constitutes punishment before verdict. The principle of “innocent unless proven otherwise” does not obtain in the military courts, for being held in detention until the end of the process is, in essence, punishment before sentencing.

     One of the most common charges in the military courts is “membership and activity in an unlawful organization”. Hamas and the Popular Front are prohibited, hence they are illegal. But not only political parties fall into this category; so do student organizations, administrations of orphanages, charities, Islamic study groups, summer camps – any agency or association that has or may possibly have some link with Hamas. A broad spectrum of social and cultural activities are suspected of proscribed terrorist activity and are, thus, branded illegal.

     The punishment meted out by the military courts has three components: time served (imprisonment for months or years), probation (also lasting months and years) and monetary fine (something that does not exist in the Israeli system). A fourth punishment, not specified in the sentences handed down by the justices, fall into the purview of the police and is carried out according to criteria set by the Chief of Police: no entry permit into Israel is issued to convicted Palestinians even after their release, especially as long as a suspended sentence is in effect. Palestinians from the Occupied Territories who have been convicted and served time are particularly vulnerable, as during that period after their release they have no chance of obtaining work permit or any other permit that involves entering Israel. This prohibition often lasts longer than the period of penalty or probation.

     The large number of Palestinians from the Occupied Territories who have been detained, suspected, charged, tried and convicted in the military courts provides an inexhaustible reservoir for the civil administration to deprive Palestinians of entry permits into Israel. This brings us back to the issue of violation of the freedom of movement mentioned in the opening paragraph.