[This is an excerpt from a paper I submitted for a class on International Law and Human Rights, 2018]
Five of us were quickly ushered into one of the trailers. We slipped through the door, an Israeli soldier closed it behind us. As a group we edged our way into a row of plastic chairs. As everything settled and became quiet again, I was able to take in our surroundings. I was seated in the second row of plastic seats—reminiscent of chairs at a bus station as you wait en route to your final destination. A divider—similar to a metal fence—was placed between “us” and “them.” This divider reminded me of the twenty-foot tall concrete walls that were surrounding us outside of this temporary trailer.
On the other side of the divider was an Israeli Judge, dressed in military garb, sitting on a raised dais in front of an Israeli flag that hung on the wall. The Judge looked hot, bored, and prodded the proceedings to continue. Close to the Judge were three desks: one had an old PC computer on it, a younger soldier tapping away at the keyboard. En face of the notetaking soldier was another desk with a lawyer in an Israeli uniform, presumably the prosecutor. To the side was an enclosure with three young men with their feet chained, waiting their turn. Soldiers in police uniforms stood nearby, watching over them. The final desk was perpendicular to the others, facing the judge head on and here stood three people: a Palestinian defendant, a lawyer, and another Israeli soldier. This soldier was shouting translations from Hebrew to Arabic for the defendant to follow what was happening. The Palestinian defendant was no older than sixteen. He was barely listening to the translations and had his back turned to the judge. He was in rapid fire conversation with the three people seated in front of me—his family. They had not seen him over three weeks, since his last hearing before the same court.
Salwa Duaibis, co-founder of Military Court Watch, leaned over and translated that the family was discussing a cousin’s marriage and whether or not the defendant needed more clothing. She then whispered to me, “Welcome to the vegetable market.” At that moment, the electricity failed, and we were plunged into darkness and heat as the air conditioner shut down. The people in the room proceeded as though this was common, flipped a fuse, and continued with the case. The walls felt flimsy, as if the whole foundation was about to be blown away into the desert.
The Military Court system of the Israeli occupation of Palestine provides an important case study of liminal jurisdictions and the applicability of international human rights law and legal statutes. The courts sit on the border between Israeli civil law and international law. It is the judicial force in the territories under Israeli military occupation. As a result, law can be worked to satisfy the interests of those in power. This paper seeks to analyze the ways that the Fourth Geneva Conventions (GCIV)can be used either to promote human rights, or to obscure violations of human rights. By discussing three important human rights—fair and impartial judgement as noted in the Universal Declaration of Human Rightsand GCIV, the rights of children as established by the Conventions on the Rights of the Child, and the equal application of laws as designated by the Convention for the Eradication of Racial Discrimination—it becomes apparent that the courts serve as a procedural façade for justice. Furthermore, this discussion highlights the indivisible nature of universal human rights which implies that rights are interconnected and therefore requires that they are applied consistently.
It will soon become clear that the Geneva Conventions are not upheld in totality in the military court system, the courts serve as a façade of justice and human rights.
Background on the Courts
The Military Courts of the Israeli Occupation were established after the 1967 victory of the IDF and the acquisition of the West Bank. The Judea Military Court at Ofer Prison is one of two official military courts and prisons that have been set up by the Israeli Army in the West Bank in order to prosecute cases from the Occupied Palestinian Territories (OPT); (there are another four military courts that exist inside Israel and are located next to the Israeli Information Agency’s (ISA) interrogation facilities). The court is located on the border between the West Bank and Israeli territory. One entrance opens from the West and Highway 443—a main commuter passage between Tel Aviv and Jerusalem that cuts through Palestinian villages and the West Bank—and is accessible by those with Israeli or international citizenship. The other entrance is approached from the East and the Palestinian village Beitunia. Palestinians from the West Bank can only enter from the East side if they have proper identification.
This is the location of over a thousand cases per year as well as the Juvenile Court (B’tselem, 2017). The court has jurisdiction over all areas of the OPT that fall under Israeli civilian rule, namely Area B and Area C. However, they also receive cases that are marked “security offenses” regardless of which area of the territory they occur in. The courts are separate from the military courts that adjudicate in cases within the Israeli Army. Appeals to decisions made by the Military Courts are overseen by the Israeli Supreme Court. The military courts have a large impact on the daily life of Palestinians living under occupation.
The Fourth Geneva Conventions (GCIV): Human Rights Ideals versus Occupied Reality
The Military Court of Judea (and the northern court called Samaria) distributes a handout to all international guests that come to the court. The handout explicitly states that:
“The Military Courts in Judea and Samaria (hereinafter: “The Military Courts”) were established in accordance with international law, and have jurisdiction to hear ordinary criminal cases and cases involving security offenses…Article 66 of the 4thGeneva Convention refers to the role of the military courts.”
The document continues to explain a list of legal cases that have established the role of the court. By situating the establishment of the courts firmly in traditions set up by the Fourth Geneva Conventions (GCIV), the court appeals to international legitimacy. While the courts emphasize Article 66—which stipulates that the local laws may be suspended and superseded by an occupying power—they overlook other integral rights that are included in the conventions.
There are many infractions of these conventions (note that this list is not exhaustive): Article 65 and 71 that demand translation documents into the defendant’s own language (B’tselem 2017, DCI, 2015); Article 66 that says the Location of the courts must be in the occupied territory (GCIV); Article 67 that requires proportionality of offense to punishment; and Article 76, Article 146, Article 147 that prohibit the moving of detainees to prisons not in the occupied territory. Military Court Watch has recorded these issues at length in the testimonies they have gathered.
Protection of Procedural Rights to a Fair and Impartial Trial
Nowhere is this selection process of human rights more evident than in the actual proceedings in the Military Courts. By highlighting three main issues, we begin to unravel the façade of procedural justice that the courts afford to the occupation in attempt to legitimize the Israeli Military’s actions in the West Bank.
Issue of Remands in Custody: 99% Conviction Rate
According to Military Court Watch, there is a 99% conviction rate in the Military Courts. B’tselem explains this is a result of a system of remands in custody and prolonged detentions. The B’tselem report further explain the procedure:
“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” (B’tselem, 2017).
While this emphasis on evidence appears promising, the actual application is less than thorough. B’tselem reports,
“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” (B'tselem, 2017).
Furthermore, if a judge sets a bail for a defendant (a rare case), the bail is often thousands of shekels and beyond the capacity of Palestinian families to pay. Detention may be extended for as long as one year. A different B’tselem report reminds us, “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” (B’tselem, 2015). According to B’tselem, at the end of August 2018, “465 Palestinians - including 1 woman and 3 minors - were held in administrative detention in Israel Prison Service (IPS) facilities” (B’tselem, 2018). That means 465 individuals awaiting a trial and presumed innocent until proven otherwise, are held in remand.
As a result of this system, most cases result in a plea bargain of guilty rather than face the prospect of a drawn-out court case (B’tselem, 2017). Therefore, the majority of cases that are being heard are plea bargains rather than an actual case where a defendant is allowed to prove their innocence. Preferring to avoid remaining in detention for a long time, it is often more “convenient” to have the charges downgraded and a to receive a decision of guilt.
This has long term effects on Palestinians: often a guilty charge is used as grounds to deny permits. This has long-term impact on Palestinian social fabric, economic access, and health. A guilty charge has the capacity to derail a Palestinian’s life.
Minors Rights in Court: Convention on Rights of Children (CRC)
The State of Israel is also a signatory on the Conventions on the Rights of Child. Yet the treatment of minors in the Military Court System ignores many of the protections stipulated in this convention, namely Article 3, 37, and 40 in their entirety. According to a US State Department Report, 61% of Palestinian minors experience violence during arrest, interrogation, and detention (US State Department Report). This number is further corroborated by testimonies recorded by MCW.
MCW has found that children’s rights are constantly infringed in each step of the procedure from arrest (with approximately half of arrests taking place at night), to detentions (often occurs without alerting parents, guardians, or legal advisors), interrogation, lack of translation, and furthermore the convictions (MCW). Furthermore, a UNICEF report states that “the ill-treatment of children who come in contact with the military detention system appears to be widespread, systematic and institutionalized throughout the process” (UNICEF, 2013). This disregard for children’s rights is a further example of misapplication of international law.
Equal Application of the Law: ICCPR Article 4, CERD Article 5
Article 5 of CERD obligates that signatories must “guarantee the right to everyone, without distinction as to race, color, national or ethnic origin, to equality before the law,” notably in the enjoyment of certain civil, political, economic and social rights (Amnesty Intl, 2006). In combination with Article 4 of the ICCPR, this right must be upheld in all circumstances: war, peace, or occupation.
Technically, the courts are responsible for cases involving Israeli settlers as well—i.e. any transgressions of the law that occur in Area C where settlements exist. However, in the 1980s the Attorney General ruled that Israeli citizens are to be tried in the Israeli civilian court system according to Israeli penal laws, even if they live in the OPT, and even if they commit a crime in the OPT (B’tselem, 2017, Amnesty Intl, 2006). We thus see a direct violation of the Convention on the Elimination of All Forms of Racial Discrimination (CERD)—of which Israel is a signatory of CERD since January 3, 1979— as there are two different legal systems and the application of one set of laws versus another is determined by the individual’s ethnicity. Military Court Watch extensively documents the differences in treatment of Palestinian minors versus Israeli minors:
There are multiple cases in which the rights afforded to Palestinian minors violates international codes of conduct—such as the use of night interrogation, the lack of legal rights to have a parent present during questioning, and the limited right to consult with a lawyer. Furthermore, the punishments are drastically different: a Palestinian child may be sentenced up to twenty years in prison for an offense such as throwing a rock, while this charge does not exist for an Israeli child who is tried under civilian courts rather than military courts (MCW). The distinction between punishments, treatment, and access to fair and impartial hearings is clearly based on ethnic identities. (For further reflection on these divisions see the film The Law in These Parts (2011) that interviews previous Israeli Military Court Judges).
These contradictions call into question the political, legal, and moral legitimacy of an occupation. By emphasizing Article 64 and Article 66 to establish the Military Courts, Israel is held under formal obligation to uphold the rest of the GCIV.
Human Rights and International Law: Indivisible?
Israel’s occupation of the Palestinian territories provides an interesting case study because it is both a military occupation of a foreign population, and a continued armed conflict. Furthermore, the lack of an official Palestinian state opens up legal issues in regard to sovereignty. This investigation prompts further inquiry into the relation between human rights and humanitarian law. It is clear that the Geneva Conventions are not upheld in totality in the military court system. Further human rights abuses occur that also ignore GCIV including, but not limited to, collective punishments, deportation outside of the region, destruction of villages, demolitions of houses, state seizure of private property, splitting families, violence, limitations on freedoms to associate and organize. Legal arguments may be made that refer back to Article 66 and remind critics that during a state of emergency, armed conflict, or military occupation, normal civil laws may be suspended.
However, in 2004 the International Criminal Justice Court ruled that the ICCPR applies in the OPT. This opens up legal avenues to apply Article 4 of the ICCPR and petition for redress in international courts of law. Therefore, we see a precedent that suggests that all human rights should apply in this region.
These issues highlight the tension of international covenants: is there a hierarchy of which laws reign supreme? How do we enforce and apply international law? What happens in the case of liminal spaces such as occupation? Do these laws apply extra-territorially?
I argue that human rights are indivisible, and therefore must be protected across categories, especially in cases of military occupation—where human rights abuses are more likely to occur as two parties in conflict are engaged. These contradictions call into question the political, legal, and moral legitimacy of an occupation. If legal, civil, and political rights are being abrogated in the name of security, then the legitimacy of the occupation should be called into question in both an international legal framework to protect human rights and in national context. Therefore, the fact that Israel is a signatory to the Universal Declaration of Human Rights, International Covenant on Civil and Political Rights (ICCPR), the GCIV, the CRC, the CEDR, as well as other conventions and agreements means that the State of Israel should be held accountable to all rights they have signed on to—not only those that further their interests. By emphasizing Article 64 and Article 66 to establish the Military Courts, Israel is held under formal obligation to uphold the rest of the GCIV. As Roberts argues, if a state has incorporated human rights conventions in their framework of operations in an occupation, it is incumbent upon them to implement the rest (Roberts, 2006, 600); it is therefore incumbent upon international actors to ensure that international law is being applied consistently in order to protect human rights.
 “In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, color, sex, language, religion or social origin” (Amnesty International, 2006).
Treaties that Israel is a signatory to (and apply to the population in the W. Bank):
The Hague Regulations
Fourth Geneva Conventions
Convention on the Rights of the Child (CRC),
Covenant on Civil and Political Rights (CCPR),
Covenant on Economic, Social and Cultural Rights (CESCR),
Convention on the Elimination of All Forms of Racial Discrimination (CERD),
Convention against Torture (CAT).
Amnesty Intl (2006): Briefing To The Committee On The Elimination Of Racial Discrimination. January 2006.
B’tselem (2015). “Presumed Guilty: Remand in Custody by Military Courts in the West Bank,” June 2015. https://www.btselem.org/publications/summaries/201506_presumed_guilty
B’tselem (2016). “Report: The Occupation's Fig Leaf: Israel’s Military Law Enforcement System as a Whitewash Mechanism,” May 2016. https://www.btselem.org/publications/summaries/201605_occupations_fig_leaf
B’tselem (2017). The Military Courts. https://www.btselem.org/military_courts. Accessed November 14, 2018
B’tselem (2018). “Statistics on Palestinians in the custody of the Israeli security forces,” October 31, 2018. Accessed November 14, 2018. https://www.btselem.org/statistics/detainees_and_prisoners
B’tselem (2018b). “Statistics on Administrative Detention,” October 31, 2018. Accessed November 14, 2018.
Defense for Children International (DCI) (2015). “For Palestinian Children of East Jerusalem, the Exception is the Rule.” Jul 29, 2015 https://www.dci-palestine.org/for_palestinian_children_of_east_jerusalem_the_exception_is_the_rule
Ha’aretz. (2018). “Citing ‘Extrajudicial Executions,’ Amnesty International Raps Israel for Human Rights Abuses.” Ha’aretz, 22 Feb. 2018. Ha’aretz, https://www.haaretz.com/israel-news/.premium-citing-extrajudicial-executions-amnesty-raps-israel-for-abuses-1.5845212.
Military Court (2015). Document from Ofer, http://www.militarycourtwatch.org/files/server/OFER%20DOC%20-%20JUL%202015.pdf.Accessed May 2019.
Military Court Watch (MCW) —watchdog organization reports 2002-2018: www.militarycourtwatch.org
Settlements Watch Shalom Acshav (2017). “Creeping Annexation: Changes in the Interpretation of the Laws Regarding Occupation.” December 2017. https://peacenow.org/WP/wp-content/uploads/Shalom-Achshav-Report-on-Creeping-Annexation-Changes-in-the-Interp-of-Laws-re-Occupation.pdf
Times of Israel (2016). “Israeli ‘Godfather’ Sentenced to 20 years in Prison.” February 25, 2016.
UNICEF (2013). “Children in Israeli Military detention: Observations and Recommendations.” February 2013. https://www.unicef.org/oPt/UNICEF_oPt_Children_in_Israeli_Military_Detention_Observations_and_Recommendations_-_6_March_2013.pdf
Yesh Din (2016). “Report: From Occupation to Annexation,” February 2016.https://www.yesh-din.org/en/shhhhhh-were-annexing/
Yesh Din (2009) “Petition against holding Palestinian detainees inside Israel and holding their trials outside the West Bank,” March 25, 2009. https://www.yesh-din.org/en/petition-against-holding-palestinian-detainees-inside-israel-and-holding-their-trials-outside-the-west-bank-hcj-269009-yesh-din-volunteers-for-human-rights-v-the-commander-of-idf-forces-in-the-west/Accessed November 14, 2018
Alexandrowicz, R., director. (2011). The Law in These Parts (Shilton Ha Chok). Documentary film.
Benveniśtî, E. (2004).The international law of occupation. Princeton, New Jersey: Princeton University Press.
Dennis, M. (2005). “Application of Human Rights Treaties Extraterritorially in Times of Armed Conflict and Military Occupation,” The American Journal of International Law. Vol. 99, No. 1 (Jan, 2005). pp. 119-141
Dinstein, Y. (2009). The international law of belligerent occupation. Cambridge, UK: Cambridge University Press.
Hajjar, L. (2005) Courting conflict : the Israeli military court system in the West Bank and Gaza. London, England: University of California Press.
Roberts, A. (2006). “Transformative Military Occupation: Applying the Laws of Wars and Human Rights,” The American Journal of International Law. Vol. 100. (2006). Pp. 580-622.
Kretzmer, D. (2002) The occupation of justice: the Supreme Court of Israel and the Occupied
Territories. Albany, NY: State University of New York Press.
Laub, Karin, and Mohammed Daraghmeh. (2018). “For Palestinians, Israeli Permits a Complex Tool of Control.” AP, 30 Apr. 2018, https://www.apnews.com/7cfac1e5441747da841e51fdf3851460.
Weill, S. (2007) “The judicial arm of the occupation: the Israeli military courts in the occupied territories.”International Review of the Red Cross, 2007, Vol.89(866), pp.395-41.