Law

by EA Sophie    –    7 min read

‘While the courts offer an illusion of proper judicial conduct, they mask one of the most injurious apparatuses of the occupation. In these courts, the judges and prosecutors are always Israeli soldiers in uniform. The Palestinians are always either suspects or defendants, and are almost always convicted for violating orders issued by the occupation regime. As such, these courts simply cannot be an impartial, neutral arbitrator. They are firmly entrenched on the Israeli side of the power imbalance, and serve as one of the central systems maintaining its control over the Palestinian people.’ (B’Tselem)

About 800,000 Palestinian men, women and children have been detained since the occupation began in 1967. They are prosecuted under Israeli military law and tried by soldiers in a military court. Their treatment contrasts starkly with that of Israelis and Israeli settlers living illegally in the occupied West Bank, both of whom are prosecuted under Israeli civil law. Civil law secures their right, for example, to a fair trial, to due process, and to access bail.

The low conviction rate for Israeli settlers contrasts with a 95 per cent conviction rate for Palestinians. This asymmetrical system makes it almost impossible for Palestinians to see justice.

Some statistics on law enforcement for settlers in occupied Palestine:

(Source Yesh Din)

Palestinian reports of attacks by Israeli settlers: Per cent of…

Investigations closed due to police failure:   82%

Jordan 82%

Investigations resulting in charges:    8%

Palestine 8%

Investigations resulting in conviction    3%

Palestine 3%

IDF question a villager in Yanoun

A Palestinian man is arrested for a nonviolent protest against demolitions in Khan al Ahmer.

In most cases, Palestinian defendants are kept in custody until the proceedings are over, keeping them from their families and their work. Because of this, plea bargains are very common – pleading guilty is seen as a way to speed up the process so defendants can return to their families. If they choose to fight their case, Palestinians can spend months or even years in pre-trial detention.

In military courts, the prosecuting attorney and the judge are both members of the Israeli military, undermining the ability of the court to assess a case in an impartial manner. Although The Universal Declaration of Human Rights safeguards the right to a fair and impartial trial, this is not implemented within the Israeli military court system. Proceedings all take place in Hebrew, placing Palestinian defendants (who may only speak Arabic) at a distinct disadvantage. According to Military Court Watch, translations are provided by serving military personnel, whose grasp of Arabic ranges from good to ‘incomprehensible’.

Palestinian teenagers are stop searched in Hebron

Palestinian prisoners are kept in military prisons before and during their trials. The majority of military prisons are in Israel, meaning that detainees are kept far away from their families and communities. Transferring local people out of an occupied territory in this way is illegal under international law, but it is a routine part of the Israeli military justice system. Detaining Palestinians in Israel also means that any visitors will need to acquire a permit to see them. The permit system is arbitrary and complex, and there is no guarantee that that a detainee’s family will be granted a permit that will allow them to see their loved ones.

Israel is the only country in the world that routinely sends children to military court. Criminal responsibility under Israeli military law starts at age 12, from which point children are eligible for a prison sentence if found guilty. For security offences (such as stone throwing), children can be sentenced to the same prison sentence as adults from the age of 14. As with adults, the majority of children charged will enter plea bargains in order to return home as soon as possible.

Following international pressure, Israel introduced juvenile courts in 2009. However, there is no obligation for juvenile courts to hear the case until the final trial hearings, and as the vast majority of juvenile cases end in a plea bargain, most children are still tried in an adult military court.

Palestinian child arrested in Hebron

Headteacher at Cordoba School in Hebron tries to prevent the arrest of a child

The huge differences between the two legal systems for Palestinians and Israelis means that Palestinians are systematically discriminated against, facing longer and harsher sentences. In military law, detainees can be held for much longer without charge – eighteen months, which can then be extended by six month increments. This system, known as ‘administrative detention’, which began under British colonial rule, can continue indefinitely at the military’s discretion. Israelis on the other hand cannot be held for more than nine months under civil law.

‘Administrative detention is incarceration without trial or charge, alleging that a person plans to commit a future offense. It has no time limit, and the evidence on which it is based is not disclosed. Israel employs this measure extensively and routinely, and has used it to hold thousands of Palestinians for lengthy periods of time.’ (B’Tselem)

Sentences are also harsher. Manslaughter under Israeli civil law carries a maximum punishment of twenty years, but under military law this becomes a life sentence. Israeli minors are not tried as adults until 18, but Palestinian minors are treated as adults from 16, and sentenced as adults from 14 if found guilty of a security offence. For Palestinians aged 14 and up, stone throwing (the most common charge for minors) carries a sentence of up to twenty years.

Although military courts can officially try anyone living in the West Bank, settlers committing crimes are prosecuted under civil law. Israelis and Palestinians accused of the same crime are treated differently, and held according to different standards.

What does international law say?

'All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.'

Article 14, International Covenant on Civil and Political Rights, 1966

'No sentence shall be pronounced by the competent courts of the Occupying Power except after a regular trial. 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.'

Article 71, Fourth Geneva Convention, 1949

'Accused persons shall have the right to present evidence necessary to their defence and may, in particular, call witnesses. They 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.'

Article 72, Fourth Geneva Convention, 1949

'No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time.'

Article 37b, Convention on the Rights of a Child

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