For the vast majority of Palestinians in Israel’s military courts, keeping defendants in prison until the end of legal proceedings is the rule, not the exception.
By Yael Stein
A visit to Israel’s military court at Ofer Prison can be confusing. A sense of injustice pervades the place, but it is sometimes hard to put the finger on it precisely. This is because, for all intents and purposes, the Israeli military court appears to be a court like any other. There are prosecutors and defense attorneys. There are rules of procedure, laws and regulations. There are judges who hand down rulings and verdicts couched in reasoned legal language. Nonetheless, as is apparent from a B’Tselem report published this week, this façade of propriety masks one of the most injurious apparatuses of the occupation.
One of the keys to understanding this injustice is the reality in which, for most Palestinians charged in Israel’s West Bank military courts, remanding defendants until the end of legal proceedings is the rule, not the exception. This state of affairs is the main reason that most proceedings in the military courts end in plea bargains, and is behind the high conviction rate in these courts.
With the exception of traffic violations, the military prosecution routinely asks that defendants be remanded to custody for the duration of the proceedings, and the courts approve the vast majority of these motions. Ostensibly, military judges rely on the three conditions stipulated in Israeli law for approving remand, which are meant to restrict the use of this measure. However, the interpretation military judges give these conditions renders them meaningless and nullifies their effectiveness as potent checks on the process of approving remand in custody.
Thus, instead of the prosecution having to prove that each of the conditions laid out in the law has been met, the burden of proof is shifted onto the defendant, adding obstacles.
The threshold for meeting the requirement of prima facie evidence is so low that it poses no obstacle to the prosecution. Military courts accept a single confession or incriminating statement, dubious as it may be, as sufficient for meeting the already low threshold. Military judges ignore complaints made by both adult and minor detainees regarding ill-treatment or abuse during their interrogation, ruling that such allegations should be deliberated only at trial, which hardly ever takes place.
The requirement for “grounds for detention” has been replaced with a string of presumptions that release the prosecution from its obligation to present evidence justifying the detention of the particular defendant whose matter is before the court. Judges have ruled that the grounds of “posing a danger” are automatically present in most offenses with which Palestinians are charged. They have also ruled that in the vast majority of cases the grounds of “flight risk” is also present, given where defendants live.
Additionally, military courts have also ruled that defendants in most types of offenses cannot be released to an alternative to prison. Even in the few cases in which the judges agree to release defendants, they set high bail, reaching thousands of shekels.
As a result of this military court policy, in most cases defendants are held in custody for the duration of their trial. Knowing that a trial will likely take longer than the prison sentence they would receive in a plea bargain, especially on minor charges, most defendants hasten to sign such plea bargains. All too often, the decision to detain a person is tantamount to conviction, since the defendant’s fate is sealed at the time the decision to remand in custody is made, rather than based on the evidence. In other words, a pretrial decision, remand in custody of a person who has not been convicted, routinely renders the judicial proceeding meaningless.
As this report indicates, military courts rely on Israeli law and the jurisprudence of Israeli courts operating inside the Green Line when it comes to remand proceedings. However, the two legal systems, the one inside the Green Line and the one in the West Bank, are fundamentally different. They are predicated on different values and protect different interests. Unlike the Israeli justice system, the military courts do not reflect the interests of the defendants’ own society, but rather the interests of the regime of occupation, an occupation fast approaching the 50-year mark.
The military judges and prosecutors are always Israelis. They are soldiers in uniform enforcing martial law on the civilian Palestinian population living under military rule. The people who take part in administering the occupation are on one side, while the regime’s subjects are on the other. Military courts are not an impartial, neutral arbitrator. They are firmly entrenched on one side of this unequal balance.
The application of Israeli law may be significant on a declarative level. In practice, however, the use of language rooted in the Israeli legal world obfuscates the crucial differences between the Israeli justice system that operates inside Israel’s sovereign borders and the military courts operating in the West Bank. As such, its main contribution to the military justice system is not in providing broader protection for defendants’ rights or seeing justice done, but rather as a whitewash, glossing over the flaws of the military court system.
Attorney Yael Stein is B’Tselem’s research director and author of the report, Presumed Guilty: Remand in Custody by Military Courts in the West Bank.