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<h1 class="reader-title">Military Courts in the Occupied
Palestinian Territory</h1>
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<div class="reader-estimated-time" dir="ltr"
style="text-align: left;">October 23, 2018<br>
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<p dir="ltr"><strong><u>Background and History</u></strong></p>
<p dir="ltr">On June 7<sup>th</sup>, 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.<a
href="#_ftn1" name="_ftnref1" title=""
id="_ftnref1">[1]</a></p>
<p dir="ltr">Additional courts were opened during the
first intifada (1987-1993) in Hebron and Jenin.
Following, the Oslo Accords, these courts were
closed.<a href="#_ftn2" name="_ftnref2" title=""
id="_ftnref2">[2]</a> 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.<a
href="#_ftn3" name="_ftnref3" title=""
id="_ftnref3">[3]</a></p>
<h2 dir="ltr"> <u>Categorical and Geographical Scope
of the Military System</u></h2>
<p dir="ltr">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.</p>
<p dir="ltr">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.<a href="#_ftn4" name="_ftnref4" title=""
id="_ftnref4">[4]</a></p>
<p dir="ltr">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:</p>
<p dir="ltr"><em>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 <strong>properly
constituted, non-political military courts</strong>,
on condition that the said courts sit in the
occupied country. Courts of appeal shall
preferably sit in the occupied country </em>[emphasis
added]<em>.</em><a href="#_ftn5" name="_ftnref5"
title="" id="_ftnref5">[5]</a></p>
<p dir="ltr">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.</p>
<p dir="ltr">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.<a
href="#_ftn6" name="_ftnref6" title=""
id="_ftnref6">[6]</a></p>
<p dir="ltr">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.<a href="#_ftn7" name="_ftnref7" title=""
id="_ftnref7">[7]</a></p>
<p dir="ltr">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.<a href="#_ftn8"
name="_ftnref8" title="" id="_ftnref8">[8]</a>
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”.<a
href="#_ftn9" name="_ftnref9" title=""
id="_ftnref9">[9]</a></p>
<p dir="ltr">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.<a href="#_ftn10" name="_ftnref10"
title="" id="_ftnref10">[10]</a> Altogether, such
military orders criminalize civic activities. </p>
<h2 dir="ltr"> <u>Fair trial procedures</u></h2>
<p dir="ltr">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.</p>
<p dir="ltr">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.</p>
<p dir="ltr">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:</p>
<p dir="ltr"><em>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. </em><a
href="#_ftn11" name="_ftnref11" title=""
id="_ftnref11">[11]</a></p>
<p dir="ltr">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<a
href="#_ftn12" name="_ftnref12" title=""
id="_ftnref12">[12]</a>. 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.<a
href="#_ftn13" name="_ftnref13" title=""
id="_ftnref13">[13]</a> 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”<a href="#_ftn14"
name="_ftnref14" title="" id="_ftnref14">[14]</a>.
The Fourth Geneva Convention also indicates in
Article 71 that:</p>
<p dir="ltr"><em>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.</em><a href="#_ftn15" name="_ftnref15"
title="" id="_ftnref15">[15]</a></p>
<p dir="ltr">Arrested persons living in the occupied
territories are rarely ever told the charges against
them, if there are any,<a href="#_ftn16"
name="_ftnref16" title="" id="_ftnref16">[16]</a>
upon arrest.</p>
<p dir="ltr">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.”<a
href="#_ftn17" name="_ftnref17" title=""
id="_ftnref17">[17]</a> 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.<a href="#_ftn18" name="_ftnref18" title=""
id="_ftnref18">[18]</a> This may also be renewed
by a military court for an additional 30 days,
according to Military Court Order 1651.</p>
<p dir="ltr">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.</p>
<p dir="ltr">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),<a
href="#_ftn19" name="_ftnref19" title=""
id="_ftnref19">[19]</a> 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.<a href="#_ftn20" name="_ftnref20"
title="" id="_ftnref20">[20]</a></p>
<h2 dir="ltr"> <u>Conclusion</u></h2>
<p dir="ltr">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.</p>
<table dir="ltr">
<tbody>
<tr>
<td>
<p><strong><u>Key Figures for the Military
Court 2017<a href="#_ftn21"
name="_ftnref21" title=""
id="_ftnref21"><strong><u>[21]</u></strong></a></u></strong></p>
</td>
<td>
<br>
</td>
</tr>
<tr>
<td>
<p>Indictments Filed in the Military Court</p>
</td>
<td>
<p>10,454</p>
</td>
</tr>
<tr>
<td>
<p>The percentage of indictments relating to
‘Security Offences’</p>
</td>
<td>
<p>20%</p>
</td>
</tr>
<tr>
<td>
<p>The percentage of indictments relating to
‘Traffic Violations’</p>
</td>
<td>
<p>50%</p>
</td>
</tr>
<tr>
<td>
<p>Administrative Detention orders handed down</p>
</td>
<td>
<p>1205</p>
</td>
</tr>
<tr>
<td>
<p>Total amount of fines paid to the military
court</p>
</td>
<td>
<p>20 Million NIS</p>
</td>
</tr>
</tbody>
</table>
<div dir="ltr">
<hr size="1">
<p><a href="#_ftnref1" name="_ftn1" title=""
id="_ftn1"><sup><sup>[1]</sup></sup></a> Yesh
Din. (2007). Backyard proceedings: The
Implementation of Due Process Rights in the
Military Courts in the Occupied Territories.</p>
<p><a href="#_ftnref2" name="_ftn2" title=""
id="_ftn2">[2]</a> Yesh Din. “Backyard
Proceedings: The Implementation of Due Process in
the Military Courts in the Occupied Territories”.
December 2007, pages 35-40.</p>
<p><a href="#_ftnref3" name="_ftn3" title=""
id="_ftn3">[3]</a> Official Report of the Work
of the Military Courts in the West Bank in 2010
(Hebrew), published in 2011, Military Courts
Report 2010.</p>
<p><a href="#_ftnref4" name="_ftn4" title=""
id="_ftn4">[4]</a> Yesh Din. “Backyard
Proceedings: The Implementation of Due Process in
the Military Courts in the Occupied Territories”.
December 2007.</p>
<p><a href="#_ftnref6" name="_ftn6" title=""
id="_ftn6">[6]</a> Addameer Documentation, 2017.</p>
<p><a href="#_ftnref7" name="_ftn7" title=""
id="_ftn7">[7]</a> 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. </p>
<p><a href="#_ftnref8" name="_ftn8" title=""
id="_ftn8">[8]</a> 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.</p>
<p><a href="#_ftnref9" name="_ftn9" title=""
id="_ftn9">[9]</a> Sharon Weill, “The judicial
arm of the occupation: the Israeli military courts
in the occupied territories”. <em>International
Review of the Red Cross</em>. Volume 89, no.
866. June 2007, pages 418-419. </p>
<p><a href="#_ftnref10" name="_ftn10" title=""
id="_ftn10">[10]</a> 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.</p>
<p><a href="#_ftnref11" name="_ftn11" title=""
id="_ftn11">[11]</a> 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.</p>
<p><a href="#_ftnref12" name="_ftn12" title=""
id="_ftn12">[12]</a> International Court of
Justice. 9 July 2004. “Legal Consequences of the
Construction of a Wall in the Occupied Palestinian
Territory”.</p>
<p><a href="#_ftnref13" name="_ftn13" title=""
id="_ftn13">[13]</a> UN General Assembly,
International Covenant on Civil and Political
Rights, 16 December 1966, United Nations, Treaty
Series, vol. 999, p. 171</p>
<p><a href="#_ftnref15" name="_ftn15" title=""
id="_ftn15">[15]</a> 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.</p>
<p><a href="#_ftnref16" name="_ftn16" title=""
id="_ftn16">[16]</a> See the section on
Administrative Detention, following.</p>
<p><a href="#_ftnref17" name="_ftn17" title=""
id="_ftn17">[17]</a> 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.</p>
<p><a href="#_ftnref18" name="_ftn18" title=""
id="_ftn18">[18]</a> Yesh Din. “Backyard
Proceedings: The Implementation of Due Process in
the Military Courts in the Occupied Territories”.
December 2007, page 17.</p>
<p><a href="#_ftnref19" name="_ftn19" title=""
id="_ftn19">[19]</a> 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.</p>
<p><a href="#_ftnref21" name="_ftn21" title=""
id="_ftn21">[21]</a> All figures were provided
to Addameer by the Military Court itself.</p>
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