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In Israel's military court, one's fate is sealed long before trial

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

Lawyer Gabi Lasky speaks with Palestinian activist Abdullah Abu Rahmeh, before the beginning of Abdullah hearing in the Ofer military court, near the West Bank town of Baituniya, February 8, 2015. Oren Ziv / Activestills.org

Israeli attorney Gabi Lasky speaks with Palestinian activist Abdullah Abu Rahmeh, before the beginning of his hearing in Ofer military court, West Bank, February 8, 2015. Oren Ziv / Activestills.org

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.

Resource: Guilty from the get-go in Israel’s military court

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.

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    1. Bruce Gould

      I find it surprising that Americans are often unable to extrapolate from what they see around them: in the last year there’s been a lot of media attention on how the criminal justice system treats poor black folks differently ( http://www.huffingtonpost.com/bill-quigley/fourteen-examples-of-raci_b_658947.html ), and here we’re dealing with a situation where the poor black folks are actually U.S. citizens – in Israel the ruling forces don’t even believe that the Palestinians are legitimate residents of the area. What do people THINK is going on? What, Jews are made out of some different kind of material from other people?

      Reply to Comment
      • BigCat

        Good post, Bruce, and congratulations for shining the light elsewhere today and living Israel alone for a minute! You should do that more often and prove that you are fair and balanced. Today you provide us info on the United States. Tomorrow we want to hear about a different country. When you compare Israel to other countries, you would be surprised to realize that young, tiny Israel is a human rights super power. Our country is not perfect, but it is far better than the countries of those who criticize us incessantly, call us “apartheid” and every other bad name on earth. African Americans would love to trade places with- and be given the privileges and opportunities Israel has given the Palestinians so far.

        Reply to Comment
        • Ben Zakkai

          Yes, Israel truly is a human rights superpower, and African-Americans would be thrilled to enjoy the opportunities that Palestinians have under Israeli rule — like being held in prison for years under administrative detention without charges ever being brought against you, and occasionally being tortured when Shabaknikim get bored; like having soldiers raid and smash your home and terrify your children in the middle of the night, just for practice, and to keep the natives down; like having your land and water and other resources stolen, day by day and year by year, all in accordance with the Occupier’s “law”; like being murdered or maimed by psycho soldiers or settlers, whose crimes are “investigated” and then routinely brushed under the rug by their comrades; like not being able to travel to work or to visit family or go to the hospital or go abroad without the approval of some 19-year-old soldier who happens to be in a rotten mood today; and so on. Seriously, BigCat, I don’t know what’s scarier, the thought that you’re a shameless liar, or the thought that you actually believe the nasty bile you spout. Now go ahead, explain to me how I and other critics of Israel’s Occupation are suffering from emotional difficulties. Putz.

          Reply to Comment
          • BigCat

            Oh, I will gladly tell you, Ben Zakkai.

            a). Your No. 1. problem is this: ALL of your comments are COMPLETELY detached from CONTEXT;

            b). Your No. 2. problem is this: ALL of your comments are COMPLETELY detached from REALITY;

            c). Your No. 3. problem is this: ALL of your comments are the same old, recycled scurrilous screeds designed to smear and demonize and repeated over and over again in different places.


            That video clip is paradigmatic of how Palestinians relate to Jews. Remember the suicide bombings before the wall was erected? Remember the slaughter of Israelis on the streets, in cafeterias, in discotheques, in pizzerias, etc. before OP-Defensive Shield? Yeah, Ben Zakkai, those are examples of what the context and the day-to-day-reality of Israelis was and remain today. That context, that reality explains and, YEEES, justifies Israel’s actions in the West Bank and Gaza! When you make all your idiotic claims such as the screed you posted above, you detach the events from reality and their context. What does that make you, Ben Zakkai? A hateful, resentful liar? Someone who is mentally incapable of appreciating- and relating to reality? Someone who confuses reality with the internally confused, unhealthy beliefs that have formed and accumulated in his confused mind over “decades of enduring identity struggles”?

            Comparing African Americans to the Palestinians is one of the most insulting racists acts you can perpetrate against African Americans who in no way, shape or form came close the kind of depraved beastly, practices seen in Palestinian society and inherent in their culture as exemplified in the video clip above, despite hundreds of years of slavery, segregation, callous murders, lynchings, etc!

            Reply to Comment
          • Ben

            Those lucky Palestinians should consider themselves lucky we don’t formally enslave them on plantations and chop off their foot if they try to run away, seems to be the argument.

            “African Americans would love to trade places with- and be given the privileges and opportunities Israel has given the Palestinians so far.”

            What a fatuous, condescending and even contemptuous statement.

            Those lucky Palestinians. If only American Blacks could receive such amenities and dispensations as a nifty 48-year belligerent occupation with bonus land and water theft, deluxe sponge tips to the head, exciting authentic military sniper fire to jazz things up, refreshing eau de feces water spritzes, bracing tear gas air fresheners, engaging humiliation by 18-year-old checkpoint soldiers and authentic settler punks for the masochist in you, whites-only roads, arbitrary indefinite detention in the comfy Ofer B&B, pesky children removal with no need to visit!, exquisite home demolitions while you wait, superior olive tree pruning and removal services free of charge, fun blackmail of gay people, the list just goes on and on! Those black people just don’t know what they’re missing down on the farm. But they’re happy anyways. Just like our happy Palestinians. And those lucky Palestinians, at least they don’t have to put up with their president being called “weak black coffee,” har har har, by the Israeli Interior Ministry Chief’s harebrained wife, or “that black monkey in the White House” by a whole bunch of crudely racist Russian Israelis. They should count their blessings. Yes those Americans should be so grateful for the respect and appreciation those Israelis show them.

            Reply to Comment
          • liz

            I agree with you. Mr Zakkai is wrong. You are not a liar, just a typical Jewish supremacist trying to build the fourth reich in Israel.

            Reply to Comment
          • Ben Zakkai

            Oh yeah dude, there was a lot of “context” to Apartheid too. “The blecks, the blecks, you just don’t understand our blecks…”


            Reply to Comment
          • Pedro X

            As Bigcat states Ben’s comments are detached from reality and history. Israel did not steal land, resources or water belonging to Palestinians. Quite the contrary, Israel shared its resources with the Palestinian Arabs and increased their material well being. One will recall that the Mandate for Palestine set over the area of Mandate Palestine, including Judea and Samaria for Jewish settlement, development and the exercise of political rights. So, as Winston Churchill stated Jews had a right to live in all of the area. Jordan in 1948 made the area of Judea and Samaria Judenrein. In 1967 in a war of self defense Israel liberated Judea and Samaria. Instead of making Judea and Samaria ethnically cleansed of Arabs, Israel invited back those fled during the 1967 back into Judea and Samaria. Jews also returned to Judea and Samaria as was their right.

            Israel inherited a very poor Judea and Samaria and Gaza. Jordan had transferred jobs and ministries out of the West Bank to Jordan. Jordan invested little in infrastructure. Israel invested in the territories, electrifying them and providing double the amount of water which the Jordanian regime had provided. Israel built schools, universities, clinics and hospitals. Israel opened its borders for Palestinian labor and for freedom of movement for both Israelis and Palestinians. The resources to provide these improvements came from Israeli resources.

            Take water, during Jordan’s administration the West bank in its best wet years had access to 66 million cubic meters of water. Under Israeli administration this amount doubled and under the Oslo Accords this amount increased to 200 MCM. These increases came out of Israel’s control of the Mountain Aquifer which under international law belongs to Israel.

            The Israeli government offered to return most of Judea and Samaria to the Arabs in return for negotiations, recognition, and peace, but the Arabs said no, no and no and promised to prepare for war which they did. As in 1937, 1947, 1956, and 1965 they opposed recognizing an Arab state in Mandate Palestine if it meant recognizing a Jewish state over any portion of Mandate Palestine.

            In 1977 Israel and Egypt offering the Palestinian people autonomy and a spot at the peace table. The Palestinians refused to negotiate and carried on war from Lebanon. The Palestinians remained committed to destruction of Israel instead of attaining a state of their own. Atrocity after atrocity was carried out in the name of Palestinians by their leadership.

            In 1993 the Oslo Accords were signed. Israel gave the Palestinians autonomy over their areas. Arafat was allowed to return to the territories with his PLO and Fatah terrorists. 415 major terrorists who had been expelled were allowed to return to the the territories. Arafat, Fatah, the PLO, Hamas, Islamic Jihad and other terrorist factions used the opportunity to build up terrorist resources with which to attack Israel and its civilians. Arafat brought corruption and cronyism to the territories.

            Israel found that it had traded control of land for terrorism. Israelis naively believed that autonomy and negotiations towards statehood would lead to lessening of terror and incitement to hatred and terror, not more. Israel endured years of terrorism in the 1990s as it tried to negotiate with Arafat. It continued allowing 40% of the Palestinian work force to find employment in Israel. It allowed freedom of movement of people and goods until the second intifada made it impossible to continue with such a policy.

            Israel maintains a presence in the West Bank to protect Israel and Israelis. At any time the Palestinians can negotiate peace, end their terrorism and treat the conflict at an end by recognizing Israel as the Nation state of the Jewish people and that there is no right of return for descendents of the Arab refugees from the 1948 war to migrate to Israel. They can return to Palestinian areas, should the Palestinians welcome them to do so.

            Reply to Comment
      • CigarButNoNice

        Bruce Gould wrote:

        “…in Israel the ruling forces don’t even believe that the Palestinians are legitimate residents of the area.”

        A textbook example of the pot calling the kettle black. Or put it differently: Somebody commenting on a site that holds that Zionist Jews are to the Land of Israel as French pieds-noirs were to Algeria is in the worst position to complain about a denial of national rights.

        In truth, the Arab colonists squatting on the Land of Israel are as authentically connected to the land as Rachel Dolezal is black. The fakest nation on the planet, faking it to wrap the robbing of national rights from the Jews in a shiny, noble-sounding wrapper. Anti-Zionism is pro-colonialism, pro-imperialism and anti-justice; it will not stand.

        Reply to Comment
        • Ben

          The purest hackneyed extremist propaganda cliches. Yawn.

          Reply to Comment
          • Gustav

            “The purest hackneyed extremist propaganda cliches. Yawn.”

            …yes, by the two Bennies and Bruce…

            Reply to Comment
          • Gustav

            …and Liz.

            Reply to Comment
    2. Whiplash

      Do Accused Palestinians pose a danger?

      For a judge to decide this he or she would have to look at the context of the alleged crime. A Palestinian driver who fails to use his turn signal when making a turn, is unlikely a danger to the public at large and does not need to be incarcerated. However someone who hurls a Molotov cocktail or a rock at one’s head is danger if released. If released they pose a danger to the public and the police and are likely candidates to reoffend. This is especially so in a culture where hatred and violence against Israelis is indoctrinated in Palestinians from the birth to the grave. Just last week two Jews going to a swimming hole were shot by a Palestinian Arab just because they were Jews. A policeman was stabbed in the neck and chest by another Palestinian Arab while protecting the area around the Damascus gate in Jerusalem. Another Arab tried to burn done the house of Councillor King in a neighbourhood of Jerusalem. Palestinian attacks and riots give real concern to judges who have persons accused of violent crimes before them to release them to commit more acts of violence while waiting trial.

      People forget that Palestinians are enemies who have been seeking for the last hundred years to uproot Jews from their homeland. There is no reason to grant bail to those Palestinians involved in violent crime.

      Reply to Comment