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From the field

Presumed Guilty: Remand in Custody by Military Courts in the West Bank

Summary, June 2015

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 facade of propriety masks one of the most injurious apparatuses of the occupation.

Every year, thousands of Palestinians are brought before military courts on various charges, including entering Israel without a permit, stone-throwing, membership in an “illegal association”, violence, firearms-related offenses and traffic violations. The military court has jurisdiction over residents of the entire West Bank, including areas over which partial control was transferred to the Palestinian Authority, and even if the offense was committed outside the West Bank. In theory, these courts have the authority to try settlers. In practice, settlers are tried only in civilian courts inside Israel.

Watch the movie on the website of "The Law in These Parts – Beyond the film, an interactive journey" (Hebrew website, English subtitles).This segment and the two below are excerpts from interviews conducted for the production of the film The Law in These Parts. The speakers, military judges and legal advisers, describe and explain the legal proceedings in the military court.

Remand proceedings expose the injustice that takes place in Israeli military courts. In this context, remand is the detention for the duration of all legal proceedings in the case of a person whose questioning and investigation has been completed and who has been formally charged. Individuals on remand are not serving a prison sentence. They have not been sentenced, not been found guilty. They are being held in custody when they should be presumed innocent.

The Military Courts Unit does not publish figures on the number of motions for remand put forward by the prosecution nor the number of motions approved by the courts, claiming that this information is not available electronically. However, partial figures provided to B’Tselem indicate that, with the exception of individuals accused of traffic violations, remand is the rule rather than the exception. The military prosecution routinely asks for remand in custody and the courts approve the vast majority of the motions.

Watch the movie on the website of "The Law in These Parts – Beyond the film, an interactive journey" 
(Hebrew website, English subtitles) 

Ostensibly, military justices rely on the three conditions stipulated in Israeli law for approving remand: the presence of prima facie evidence of guilt, the presence of one of the grounds for detention enumerated in the law and the absence of applicable alternatives to detention. However, the interpretation military judges give these conditions renders them meaningless and ineffective as potent checks on the process of approving remand in custody:

  • 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 disregard complaints made by both adult and minor detainees that their confessions are the result of ill-treatment or abuse during their interrogation, ruling that such allegations should be deliberated at trial only, and rely on the confessions to grant remand.
  • 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 danger” is 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.
  • Military courts have also ruled that defendants in most types of offenses 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.

One of the outcomes of this policy is that the vast majority of military court cases end in plea bargains. Defendants know that if they go to trial while in custody – even if going to trial would mean eventual acquittal – they may spend more time behind bars than the prison sentence they would receive in a plea bargain. As a consequence the prosecution is seldom required to go through a full trial, in which it must present evidence to prove a person guilty. It follows that in many cases the decision to arrest an individual effectively means a conviction. The case is decided at the time the remand is approved rather than on the basis of evidence against the defendant. When remand – a pre-trial decision regarding a person not yet convicted – is approved on a regular basis, the judicial process as such becomes a hollow formality.

When deliberating motions for remand, the military courts rely on Israeli law and on the case law produced by Israeli courts, which operate within the Green Line, inside Israel’s sovereign borders. 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 fifty year mark.

Watch the movie on the website of "The Law in These Parts – Beyond the film, an interactive journey" 
(Hebrew website, English subtitles) 

The military judges and prosecutors are always Israeli. 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.

This publication has been produced with the assistance of the European Union. The contents of this publication are the sole responsibility of B’Tselem and HaMoked and can in no way be taken to reflect the views of the European Union.