Military courts have operated in the Occupied Territories since the Israeli occupation began in 1967. Over the years, they have come to be one of the main apparatuses serving the regime of occupation. To date, hundreds of thousands of Palestinians have been brought before these courts. Military courts ceased operating in Gaza after Israel withdrew its military forces from the Gaza Strip in 2005, but continue to operate in the West Bank, with the exception of East Jerusalem – an area Israel annexed.
Today, the military court system includes several courts of different instances. Two courts operate in the West Bank as courts of first instance: The Judea Court is located in the Ofer military base (northwest of Jerusalem) and the Samaria Court is located at the Salem military base (in the northern West Bank). Four more branches of the military courts operate inside Israel, adjacent to Israel Security Agency (ISA, or Shabak) interrogation facilities. In these courts, military judges preside over hearing on extending the detention of interrogates. As of 2009, a Military Juvenile Court has been operating at the Ofer military base. The base is also home to the Military Court of Appeals, the Military Court for Administrative Detention and the Military Court of Appeals regarding Administrative Detention.
The military courts’ jurisdiction has hardly been affected by the division of the West Bank into Areas A, B and C under the Oslo Accords or the transfer of certain civil and security responsibilities to the Palestinian Authority (PA). Palestinians from all over the West Bank continue to be prosecuted in these courts for violations of the military’s body of law.
The military courts have jurisdiction over two types of offenses. The first is known as “security offenses”, and includes “any offense enumerated in the security legislation and in statute” – whether committed in areas under control of the Israeli military, outside the West Bank, or in areas A and B, which have been transferred to the PA – as long as it “breached or was intended to breach the security of the area”. The second type is offenses regarded as a threat to public order – particularly traffic violations, but also criminal offenses that are not defined as security offenses.
Every year, thousands of Palestinians are brought before military courts on various charges, including entering Israel without a permit, stone-throwing, membership in illegal association, violence, firearms-related offenses and traffic violations. The latter constitute, on average, about 40% of all indictments a year.
Officially, military courts are authorized to try anyone who commits an offense in the West Bank, including settlers, Israeli citizens residing in Israel, and foreign nationals. However, in the early 1980s, the Attorney General decided that Israeli citizens would be tried in the Israeli civilian court system according to Israeli penal laws, even if they live in the Occupied Territories and the offense was committed there, against residents of the Occupied Territories. That policy remains in effect to this day. This means that people are tried in different courts, under different laws, for the exact same offense committed in the exact same place: Palestinian defendants are tried in military courts, their guilt or innocence determined according to the evidence laws followed in this court system, and their sentences according to the provisions of military orders. Israeli defendants are tried in a civilian court in Israel, exonerated or convicted under Israeli evidence laws, and sentenced under Israeli law as well.
One of the most problematic practices of military courts is the use of remand in custody until the end of proceedings. This means that a person whose interrogation has been completed and who has already been formally charged is kept in detention until the legal proceedings are over. These individuals are not serving a prison sentence, have not even been sentenced, and should be presumed innocent until proven guilty. Yet, other than in cases involving traffic violations, this practice is the rule rather than the exception in the military court system. The military prosecution routinely asks for remand in custody of Palestinian defendants for the duration of the proceedings, and the courts grant the vast majority of the motions.
According to Israel's Law of Arrests, in order for a judge to order a defendant’s remand in custody, the prosecution must prove the presence of all three conditions:
Military judges are supposed to rely on the three conditions stipulated in Israeli law for approving remand in custody: prima facie evidence to prove guilt, grounds for arrest and lack of a relevant alternative to detention which could achieve the purpose of detention in a manner that is less injurious to the defendant. However, the interpretation that military judges give these conditions renders them meaningless and nullifies their effectiveness as potent checks on the process of approving remand in custody. The bar for the evidence that the prosecution is required to present has been set so low that it, in fact, absolves the prosecution of the duty to present evidence to justify the detention; the requirement for “grounds for detention” has been replaced with a string of presumptions, and military courts have stipulated that, as a rule, Palestinian defendants cannot be released to an alternative to custody. Even in the few cases in which the judges agree to release defendants, they set high bail, reaching thousands of shekels.
A direct outcome of this policy is that the vast majority of military court cases end in plea bargains in which the defendants plead guilty (usually in return for the prosecution dropping some of the charges). Defendants prefer to avoid a lengthy evidentiary trial, knowing that in most probability, they would be held in remand for the duration of the trial, such that even if they are ultimately acquitted, their time in detention would exceed the sentence they would receive in the plea bargain. As a consequence, the prosecution is seldom required to go through a full evidentiary trial, in which it must present evidence to prove a person guilty. Instead, the outcome of the case is decided at the time remand is granted, rather than on the basis of evidence against the defendant. And so, a pretrial decision to remand a defendant in custody before conviction renders the judicial proceeding meaningless.
To 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, this façade of propriety masks one of the most injurious apparatuses of the occupation. The military orders are all written by Israeli soldiers and reflect what they consider to be harmful to Israeli interests. Palestinians have no way of influencing the content of the military orders that rule their lives. The military judges and prosecutors are always Israeli soldiers in uniform. The Palestinians are always viewed as either suspects or defendants, and are almost always convicted. For all these reasons, military courts are not, an impartial, neutral arbitrator – nor can they be. They are firmly entrenched on one side of this unequal balance, and serve as one of the central systems maintaining Israel’s control over the Palestinian people.