A military court for Palestinians residing in the Occupied Territories, and a civil court for Israeli citizens residing in Israel and in its settler-colonies.
Since 2006 a team of MachsomWatch volunteers have been monitoring military court sessions and reporting legal proceedings including detention of minors, confidential incriminations, administrative detentions without any end in sight, and final sentences, 99% of which terminate in plea bargains and a monetary fine. Trials with proof are most rare because most of the detainees, at the advice of their defense attorneys, prefer to conclude with plea bargains and save themselves prison time. When a ‘proof trial’ does take place, it’s the soldier’s or policeman’s word against the testimony of a Palestinian defendant or prisoner, and the judge accepts the soldier’s version.
A whole set of ‘laundered’ terms has been invented at the court session of military courts (‘illegal alien’, ‘security of the area’, ‘public security’ and many others) – terms that sound familiar and legitimate to Israeli ears, but conceal a wholly different meaning at the military courts and thus whitewash the legal discrimination applied to Palestinians in the Occupied Territories.
What is the meaning of “keeping a soldier from doing his job”?
The father of a minor asked a MachsomWatch activist to translate for him the indictment sheet against his 15-year old son. This is what happened: The minor took part in a demonstration protesting the US Embassy’s moving to Jerusalem. At some point the soldiers used crowd-dispersal means. The minor ran off and hid in a storeroom. The indictment sheet iterates: “By running away from the soldiers the accused kept the soldiers from doing their job” . In other words, one is forbidden to run away when crowd-dispersal means are used.
What is the meaning of “evidential difficulty”?
The indictment sheet against M.D. said: “The accused fired any firearm at any persons or group of persons or any spot where persons could be present.” More: “The accused came in contact, in writing or speaking or in any other form with a person who is highly likely to be acting for the enemy, whether in service of the enemy or any other way… at a time of which the prosecution has no precise knowledge”.
The prosecution formulated sweeping accusations without presenting a single concrete fact! No date, no specification of weapons, no location, no names, not even a description of damages. The prosecution claimed ‘evidential difficulties’… and still M.D. was convicted with a plea bargain, after confessing of course.
‘Evidential difficulty’ is the terminology the court uses in order not to acquit a defendant even if there is no proof of his guilt. Why should he confess, then? Because otherwise he would remain in custody until the end of proceedings, even for two years, and even then - the nature of the trial would not change. Better confess, close a plea bargain and get a reduced sentence.
Are the Palestinian minors a source of income for the State of Israel?
Malena! (enough!) the young woman shouted angrily, mother of a 12-year old defendant when she was offered a plea bargain including a 3,000 shekel fine.
Angry and hurting she came out to the courthouse yard and told us about her son’s arrest: they live in Bir Zeit. After school, a group of children rode horses, and then the police came to arrest them. All the boys managed to escape except her son. He was taken to the Binyamin detention facility and taken to Ofer camp for arraignment in the late afternoon. The woman said the children have nowhere to play so they’re out in the streets, and the police come regularly and provoke them.
The prosecution offered a plea bargain and immediate payment of a 3,000 shekel fine in order to free the boy. The mother yelled in the presence of all the other Palestinians there that Palestinian children are merely a source of income for Israel. She is not willing to take part in this and as far as she is concerned, let her and all of her family members be placed under arrest.
At the end of the day a deal was closed: the boy was sentenced to 31 days in jail and the payment of a 500 shekel fine. Hopefully, his sentence will be reduced and he will go home after 2 weeks.
Are there any concrete proofs of committing violations? The military legal system is based mostly on incriminations – very few are actually caught red-handed and concrete proof is a rare phenomenon. Most arrests are carried out on the basis of investigations wherein the questioned name neighbors, fellow classmates, friends and acquaintances. Investigation methods have detainees brought to trial after having already confessed to having committed violations alleged during the investigations. On the basis of names blurted out during the investigation, soldiers invade village homes in the night, take out men and boys from their beds and arrest them. The Palestinians call such lists of names ‘shopping lists’.
The military courts pretend to act in the name of fairness or the law when handling occupied Palestinians. However, the two legal systems – martial law for Palestinians, and civil law for Israeli citizens and settler-colonists – differ in numerous conditions, laws, the severity of sentencing, the time civilians may be in custody before seeing lawyers, the time detainees are held before trial, and in other proceedings.
At present, sessions of the military court are held inside Ofer camp and at the Russian Compound in Jerusalem (namely inside Israel, contrary to international law). Judges and prosecutors are uniformed army officers. Numerous sessions are held without the presence of the suspects’ and accused persons’ family members (for the latter may not be issued entry permits into Israel), so the right to a public trial is denied.
Administrative detention – punishment without a trial How can a person be imprisoned for years without standing a fair trial, without having allegations against him undergo justice proceedings and without his basic right to defend himself? The answer: Administrative detention. These detentions in the West Bank are carried out according to a ‘security instructions edict’ (a military order that constitutes the law in the Occupied Territories). Administrative detention is defined as ‘deterrent detention’ and therefore does not need an indictment sheet but only the GSS (Israel’s Security Services) allegations.
Inside Israel, too, the authority to hold a person in administrative detention exists. Such authority, originating with the draconian regulations of the British Mandate, was refreshed officially in 1979 with the ‘emergency authority law’. However, since its founding, the State of Israel has been in a state of emergency which is declared every year anew. (Cited from the website of the Association for Civil Rights in Israel).
Administrative detention has no factual grounds because there is no trial. The opinion and signature of the military commander is ground enough for a 6-month detention and its prolongation from time to time.
Whether the Palestinian defendant stood trial and had a plea bargain or a long-drawn-out legal proceeding that included witnesses and proof – most of the detainees remain in custody until the end of proceedings, namely until convicted. Such procedure constitutes punishment prior to conviction. The principle stating that ‘a person is innocent until proven guilty’ does not hold in Israeli military courts.
Community and social organizations – outlawed Could membership in a youth movement in Israel, for instance, be possibly imagined as a criminal activity and any such active member be prosecuted? This is what happens in the Occupied Territories: any civil organizing – for education, charity, care of orphans, maintaining kindergartens, helping ill patients and their families – is immediately declared “unlawful association” and its activists are arrested and prosecuted. Here is a quote from the prosecutor at an appeal session of the military court at Ofer camp: “All civil activity in Palestine is the activity of terrorist organizations”.
I want to know what I’m being accused of… It is the basic right of a detainee to understand what he is being accused of and to understand the language in which his investigation is held. In actual fact, the investigation summary and even confession of guilt is written by the investigators in Hebrew, and eventually, the accused person signs a document written in a language he does not understand.
Arrests of minors Unlike Israeli minors, Palestinian minors are often arrested in the wee hours of the night and taken out of their beds to a destination unknown to their parents, shackled and blindfolded. They are deprived of sleep, food and even toilet access, and only the next morning taken to the police station for investigation. After the trauma of long hours of questioning by an investigator who is not necessarily a certified youth investigator, without meeting a lawyer, without the presence of a parent or social worker, they are made to sign a confession as it were in a language they do not understand – Hebrew.
Their release is no less traumatic: these minors are usually released in the middle of the night at some checkpoint or in the middle of nowhere and must walk many kilometers alone, in the dark, frightened to death. (Quoted from (Local Call , 21.11.2018)
To understand how disproportionate the treatment of Palestinian minors is, one must only take a look at data given to B’Tselem by the Israeli Prison Authorities: at the end of August 2020, 153 Palestinian minors were detained and held in custody as security threats. 3 of them were held in administrative detention, 5 as illegal aliens, and several arrested for a short period of time.
I deserve a lawyer! Any detainee has the right to be defended by an attorney, but the security services may deny him any meeting with a lawyer for up to 90 days, for ‘security reasons’. 60% of the detainees are denied meetings with their lawyers during the investigation period, the harshest time of their detention. The accused person’s defense attorney is only allowed – if at all - to access the file at the end of the investigation and completion of the indictment sheet. However, usually, he is not entitled to see the file since it contains ‘confidential material’, as the security services put it.
99% of the cases end in plea bargains. Why is this? Any defendant knows that his detention might last for 2 years until the end of legal proceedings. The duration of detention is at the hands of the prosecution, which is also the main incentive for the prosecution to pressure the defendant to agree to a plea bargain that would shorten his incarceration. Therefore, when the prosecutor offers to reduce his sentence on the condition that he confesses his guilt of one or more items in the indictment sheet, the defendant confesses. Thus most trials end with a plea bargain, without any legal procedures that are supposed to include evidence being shown, proof of guilt, witness examination, etc.
As the legal system would have it, the higher the rate of confessions, the more the courts’ proceedings seem credible. One receives the impression that the numerous arrests conducted by the army are justified and based on real crimes and misdemeanors. Thus the courts legitimize the army’s action without any real legal justification.
What lies under conventional legal terminology? Numerous civil activities by Palestinians are considered felonies: social activity, cultural activity or legitimate protest are all defined as terrorist activity and thus a violation of the law. This reality has caused the military courts to develop its own unique lingo, whose legal terms (‘evidential difficulty’, ‘public security’, ‘of his own free will’, ‘disturbing the peace’, ‘needed investigation’ and so on and so forth) conceal a meaning and application very different from the ones we know.
“It could be said that the Hebrew language has been recruited to justify the occupation through a state of national emergency. The language is expected to grant a caressing, pacifying name for any strangling practice, any robbery method developed and implemented against the occupied population…: executions without trial became ‘targeted killing’, torture of suspects is now ‘moderate physical pressure’, expulsion to the open-air prison that is Gaza is ‘demarcation of residence’, theft of privately-owned land becomes ‘declaration of state lands’, collective punishment is ‘civil leverage’, and collective punishment by siege is now ‘closure’ or ‘fragmentation’. Thus, injustices wrought by us for 45 years have now been translated into a misdemeanor in one of Zionism’s most beautiful and successful projects: renovating the Hebrew language.”
(Michael Sfard, Haaretz daily, June 2011)
Upon examining the use of military court terminology as applied to Palestinians, we learn that the overriding notion is that all Palestinian civilians in the West Bank are dangerous, and have no right to protest the violation of their rights, nor the injustice and suffering caused by the Israeli Occupation. Therefore, they must be oppressed and placed behind bars for the safety of the public. And which is the public thus threatened? The Jewish public in the West Bank and inside Israel.
Sentences given by the military courts
- Jail time (for months or years)
- Suspended jail sentence (for months or years)
- Monetary fines
- Denial of entry permits into Israel even after being released (police or GSS blacklists). This punishment follows any sentence but is implemented by the police and applied according to criteria set by the Chief Police Inspector: Palestinians are always vulnerable, especially as long as they are under a suspended sentence. During this time, they have no chance of being issued a work permit or any other permit to be in Israel. Such punishment often lasts much longer than the suspended sentence itself.