[News] Military Courts in the Occupied Palestinian Territory

[Anti-Imperialist News]

http://www.addameer.org/publications/military-courts-occupied-palestinian-territory 



  Military Courts in the Occupied Palestinian Territory

October 23, 2018
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*_Background and History_*

On June 7^th , 1967,  three proclamations and a series of military 
orders were issued as proclamations throughout the West Bank and Gaza 
Strip. Proclamation Number 1, announced the administrative takeover of 
the Israeli military and the powers of preserving public security and 
order. Proclamation Number 2,  assured the continuity of a judiciary 
system, and declared the powers of the military commander of Israeli 
occupation forces. Finally, Proclamation Number 3, put forth legal 
procedures of Military Courts, and Order Number 3 established the 
military courts (initially Jerusalem, Hebron, Jenin, Nablus, Ramallah, 
and Jericho). The Order Concerning Security Provisions was replaced in 
1970 to a new order 378, “Order Concerning Security Provisions” which 
has become the basis of the Military Courts which routinely administer 
the detention, interrogation, prosecution, trial, and sentencing of 
Palestinians.[1] <#_ftn1>

Additional courts were opened during the first intifada (1987-1993) in 
Hebron and Jenin. Following, the Oslo Accords, these courts were 
closed.[2] <#_ftn2>   Currently, there are two military courts which 
operate in the West Bank, Ofer Court and Salem Court, located in closed 
military zones, that prosecute Palestinians from the West Bank who are 
arrested by the Israeli military and charged with security violations 
(as defined by Israel) and other crimes. Not all Palestinians who are 
arrested are prosecuted in the military courts; some are released while 
others are administratively detained without trial (see administrative 
detention below). The conviction rate is 99% percent of those who are 
charged, and of these convictions, the vast majority are the result of 
plea bargains.[3] <#_ftn3>


    _Categorical and Geographical Scope of the Military System_

A wide-ranging set of military regulations governs every aspect of 
Palestinian civilian life, including when Palestinians living in the oPt 
are arrested and detained.  These military orders provide for a wide 
range of offenses divided into five categories: “Hostile Terrorist 
Activity”; disturbance of public order; “classic” criminal offenses; 
illegal presence in Israel; and traffic offenses committed in the oPt. 
These sweeping offenses criminalize many aspects of Palestinian civic 
life. As one example, even though Israel has been engaged in peace 
negotiations with the Palestinian Liberation Organization (PLO) since 
1993, the political parties that compose the PLO are still considered 
“illegal organizations.” Carrying a Palestinian flag is also a crime 
under Israeli military regulations. Participation in a demonstration is 
deemed a disruption of public order. Even pouring coffee for a member of 
a declared illegal association can be seen as support for a terrorist 
organization.

These military courts are used to prosecute Palestinians living in the 
occupied territory, while Israel settlers living in illegal settlements 
in the occupied territory are prosecuted in civilian courts. In 
addition, it is military officers who make judgment and are therefore 
prone to bias.[4] <#_ftn4>

It may be argued that the categorical and territorial scope the military 
court transcends its requirements under international law. The Geneva 
Convention Relative to the Protection of Civilian Persons in Time of War 
(Fourth Geneva Convention), 12 August 1949, also addresses the use of 
military courts in Article 66, which states:

/In case of a breach of the penal provisions promulgated by it by virtue 
of the second paragraph of Article 64, the Occupying Power may hand over 
the accused to its *properly constituted, non-political military 
courts*, on condition that the said courts sit in the occupied country. 
Courts of appeal shall preferably sit in the occupied country /[emphasis 
added]/./[5] <#_ftn5>

Under military order 1651 (2009), throwing stones is considered a 
“security offence”, and its punishment is up to 20 years imprisonment. 
Additionally, the criminalization of civic activities by Military Order 
101, results in the continued targeting of Palestinian students, 
activists, human rights defenders and civil society leaders. This 
targeting must be viewed in a broader context of systematic attempts by 
the Israeli occupation to suppress Palestinian civil society, which 
attempts to hold Israel accountable for the crimes committed against 
Palestinians. Evidence of this repression can be seen in the rate of 
arrest, which is perhaps another testimony.

While international law stipulates that civilians may be prosecuted in 
military courts under a temporary basis, possibly reflecting the general 
conceptualization of occupation as a temporary situation, these courts 
have been used to prosecute Palestinians in the occupied territories for 
decades. Since 1967, approximately 800,000 Palestinians have been tried 
in these courts.[6] <#_ftn6>

The geographical scope may also be contested in this regard. In 
contravention with the terms of territorial jurisdiction of the 
occupying power set forth by Article 42 of the 1907 Hague Regulations, 
which states that “the occupation extends only to the territory where 
such authority has been established and can be exercised,” the military 
court extends its jurisdiction to crimes in Rule of Criminal 
Responsibility Order (1968) even to alleged crimes not completely 
committed in the territory.[7] <#_ftn7>

Additionally, the categorical scope of the violations addressed in the 
military court system are also contestable. Articles 64 and 66 of the 
Fourth Geneva Convention state that such courts should be for the use of 
violations which constitute a threat to the security of the state and 
threaten the lives of soliders.[8] <#_ftn8> Despite this, Palestinians 
are regularly brought to Ofer and Salem military courts for violations 
including “trespassing”, “public disturbance”, and even traffic 
violations.  The military legal system’s wide-reaching geographical and 
legal jurisdiction altogether have been seen to make way for “extensive 
control by the military legal authorities” and for “judicial domination 
of the army over the Palestinian civilian population”.[9] <#_ftn9>

Military Order 101 which was issued in August 1967 at the onset of the 
occupation, criminalizes civic activities such as taking part in vigils, 
organizing and participating in protests, waving flags or other 
political symbols, even the printing and distributing of political 
material. In addition, “support to a hostile organization” any activity 
that demonstrates sympathy for an organization that military orders 
deems illegal is itself illegal. This is despite that fact that the 
majority of Palestinian political parties are in fact illegal. The order 
also states that any assembly or a gathering of ten people or more as 
defined by the provisions that may be interpreted as political requires 
a permit. The order also prohibits the printing of political material 
without a permit from the military commander. The effect of such 
provisions is the prevention of civic political life in the occupied 
territory. This arguably violates aforementioned articles 64 and 66 of 
the Geneva conventions, which stipulate that the use of such military 
courts must be solely for the sake of charges which involving threats to 
the security of the state.[10] <#_ftn10> Altogether, such military 
orders criminalize civic activities.


    _Fair trial procedures_

According to international humanitarian law, Israel has the right to 
establish military courts in the oPt as an Occupying Power, but relevant 
international human rights and humanitarian law restrict the 
jurisdiction of such courts to violations of criminal security 
legislation. However, the jurisdiction of Israeli military courts is far 
broader and includes offenses outside of the relevant legislation. This 
overgrown jurisdiction has meant the inclusion of vast sections of the 
domestic Israeli criminal code into the operations of the military 
court. This has included the utilization of precedents from domestic 
Israeli cases in the military court itself. Meaning that Palestinian 
lawyers must be fully versed in all relevant domestic Israeli cases in 
order to effectively represent clients, putting them at a distinct 
disadvantage.

Furthermore, it is questionable whether the use of military courts to 
try civilians can ever satisfy the requirements under international 
human rights law that require trials to take place before independent 
and impartial tribunals. Under international law, fundamental fair trial 
rights are guaranteed, but Israeli military courts consistently 
disregard these rights.

Article 147 of the Fourth Geneva Convention categorizes “wilfully 
depriving a protected person of the rights of fair and regular trial 
prescribed in the present Convention” as a grave breach. Article 105 of 
the Geneva Convention Relative to the Treatment of Prisoners of War 
(Third Geneva Convention) 12 August 1949, which the Fourth Geneva 
Convention  indicates accused persons should benefit from, states:

/The advocate or counsel conducting the defence on behalf of the 
prisoner of war shall have at his disposal a period of two weeks at 
least before the opening of the trial, as well as the necessary 
facilities to prepare the defence of the accused. He may, in particular, 
freely visit the accused and interview him in private. He may also 
confer with any witnesses for the defence, including prisoners of war. 
He shall have the benefit of these facilities until the term of appeal 
or petition has expired. /[11] <#_ftn11>

The International Court of Justice (ICJ) has affirmed that certain 
International Human Rights Law (IHRL) instruments including the 
International Covenant on Civil and Political Rights (ICCPR) are 
applicable in the occupied territory[12] <#_ftn12>. Article 14 (3) of 
the ICCPR states that individuals who are charged are entitled minimum 
guarantees, including the right to be informed promptly of charges, to 
be provided adequate time and facilities for his or her defence, and to 
be held in trial without undue delay.[13] <#_ftn13> Trial standards are 
also addressed under International Humanitarian Law (IHL) as codified by 
the Fourth Geneva Convention also indicate that, “No sentence shall be 
pronounced by the competent courts of the Occupying Power except after a 
regular trial”[14] <#_ftn14>. The Fourth Geneva Convention also 
indicates in Article 71 that:

/Accused persons who are prosecuted by the Occupying Power shall be 
promptly informed, in writing, in a language which they understand, of 
the particulars of the charges preferred against them, and shall be 
brought to trial as rapidly as possible./[15] <#_ftn15>

Arrested persons living in the occupied territories are rarely ever told 
the charges against them, if there are any,[16] <#_ftn16> upon arrest.

The absence of fair trial standards is also marked in the trials of 
Palestinian prisoners and detainees held in Israeli custody when 
preparing for an adequate defense. Article 71 of the Fourth Geneva 
Convention states that accused persons “shall have the right to be 
assisted by a qualified advocate or counsel of their own choice, who 
shall be able to visit them freely and shall enjoy the necessary 
facilities for preparing the defence.”[17] <#_ftn17> A salient violation 
to this article involves severe restrictions upon visitation by counsel. 
According to an approximation by a former military prosecutor, nearly 
60% of GSS-interrogated suspects were denied attorney-client meetings as 
a result of orders issued by General Security Service (GSS). These 
orders are effective up to one month from the arrest.[18] <#_ftn18> This 
may also be renewed by a military court for an additional 30 days, 
according to Military Court Order 1651.

In addition, Ofer prison, which is located in the West Bank, does not 
have adequate meeting rooms for counsel. Palestinian lawyers generally 
cannot obtain permission to enter Israeli territory for the purpose of 
visitations to prisons. When visitations by counsel do take place, they 
are generally held from behind a glass and with a telephone 
conversations. Legal counsel of Addameer have indicated that the table 
is too small for holding up a notebook and that the facilities provided 
are inadequate for preparation of an adequate defense.

Further, while Article 71 of the Fourth Geneva Convention states that 
accused persons should have the aid of an interpreter during 
investigation and hearings (which are held in Hebrew),[19] <#_ftn19> 
translators in courtrooms (Arabic-speaking soldiers) are often unskilled 
in translation and unable therefore to provide appropriate 
interpretation, often leaving defendants unable to understand what is 
being said in the courtrooms.[20] <#_ftn20>


    _Conclusion_

In conclusion, the Military Court is an institution working hand in hand 
with the occupation. It is staffed by the occupation army, administered 
by its commanders, and passing judgment on the occupied. The formation 
of such an institution is in keeping with the letter of international 
humanitarian law, but not with its spirit. More than being an organ of 
justice, it is an organ of control providing a layer of legitimacy to 
the continued domination of the Palestinian people.

*_Key Figures for the Military Court 2017*_[21]_* <#_ftn21>_*

	

Indictments Filed in the Military Court

	

10,454

The percentage of indictments relating to ‘Security Offences’

	

20%

The percentage of indictments relating to ‘Traffic Violations’

	

50%

Administrative Detention orders handed down

	

1205

Total amount of fines paid to the military court

	

20 Million NIS

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^^[1] <#_ftnref1> Yesh Din. (2007). Backyard proceedings: The 
Implementation of Due Process Rights in the Military Courts in the 
Occupied Territories.

[2] <#_ftnref2> Yesh Din. “Backyard Proceedings: The Implementation of 
Due Process in the Military Courts in the Occupied Territories”. 
December 2007, pages 35-40.

[3] <#_ftnref3> Official Report of the Work of the Military Courts in 
the West Bank in 2010 (Hebrew), published in 2011, Military Courts 
Report 2010.

[4] <#_ftnref4> Yesh Din. “Backyard Proceedings: The Implementation of 
Due Process in the Military Courts in the Occupied Territories”. 
December 2007.

[6] <#_ftnref6> Addameer Documentation, 2017.

[7] <#_ftnref7> Sharon Weill, “The judicial arm of the occupation: the 
Israeli military courts in the occupied territories”. International 
Review of the Red Cross. Volume 89, no. 866. June 2007, pages 404.

[8] <#_ftnref8> International Committee of the Red Cross (ICRC), Geneva 
Convention Relative to the Protection of Civilian Persons in Time of War 
(Fourth Geneva Convention), 12 August 1949, 75 UNTS 287.

[9] <#_ftnref9> Sharon Weill, “The judicial arm of the occupation: the 
Israeli military courts in the occupied territories”. /International 
Review of the Red Cross/. Volume 89, no. 866. June 2007, pages 418-419.

[10] <#_ftnref10> International Committee of the Red Cross (ICRC), 
Geneva Convention Relative to the Protection of Civilian Persons in Time 
of War (Fourth Geneva Convention), 12 August 1949, 75 UNTS 287.

[11] <#_ftnref11> International Committee of the Red Cross (ICRC), 
Geneva Convention Relative to the Treatment of Prisoners of War (Third 
Geneva Convention), 12 August 1949, 75 UNTS 135.

[12] <#_ftnref12> International Court of Justice. 9 July 2004. “Legal 
Consequences of the Construction of a Wall in the Occupied Palestinian 
Territory”.

[13] <#_ftnref13> UN General Assembly, International Covenant on Civil 
and Political Rights, 16 December 1966, United Nations, Treaty Series, 
vol. 999, p. 171

[15] <#_ftnref15> International Committee of the Red Cross (ICRC), 
Geneva Convention Relative to the Protection of Civilian Persons in Time 
of War (Fourth Geneva Convention), 12 August 1949, 75 UNTS 287.

[16] <#_ftnref16> See the section on Administrative Detention, following.

[17] <#_ftnref17> International Committee of the Red Cross (ICRC), 
Geneva Convention Relative to the Protection of Civilian Persons in Time 
of War (Fourth Geneva Convention), 12 August 1949, 75 UNTS 287.

[18] <#_ftnref18> Yesh Din. “Backyard Proceedings: The Implementation of 
Due Process in the Military Courts in the Occupied Territories”. 
December 2007, page 17.

[19] <#_ftnref19> International Committee of the Red Cross (ICRC), 
Geneva Convention Relative to the Protection of Civilian Persons in Time 
of War (Fourth Geneva Convention), 12 August 1949, 75 UNTS 287.

[21] <#_ftnref21> All figures were provided to Addameer by the Military 
Court itself.

-- 
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