The Israeli Military Court system in the west bank and gaza

Journal of Conflict and Security Law

Volumn 12, Issue 2, 2007, Pages 197-222

  Cavanaugh, Kathleen ^a  

^a NATIONAL UNIVERSITY OF IRELAND   (Ireland)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 36849090783     PISSN: 14677954     EISSN: 14677962     Source Type: Journal    
DOI: 10.1093/jcsl/krm009     Document Type: Article

References (104)

1. H. H. Koh, 'America's Offshore Refugee Camps', (1994) 29 Richmond L. Rev. 139 at 140-141.
2. Text of Act is available at .
3. J. D. Zelman, 'Recent Developments in International Law: Anti-Terrorism Legislation - Part I: An Overview', (2001) J. Transnat'l L & Pol'y 183, 184.
4. Defined as anyone 'who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents.' Amongst its provisions, the Act confers authority to the military to decide whom it prosecutes. It does not require that charges be brought against every prisoner, and indefinite detention is permissible if the military believes the prisoner is a threat to forces on the battlefield or US citizens. The law contains a highly controversial provision stripping detainees of the right to file habeas corpus petitions in a federal court, and also allows hearsay evidence to be admitted during proceedings, so long as the presiding officer determines it to be reliable. The law addresses permissible interrogation methods, making US interrogators subject to only a limited range of 'grave breaches' purporting to reflect the requirements of Common Article 3 of the Geneva Conventions, and clarifies what actions would subject interrogators to liability under the existing federal War Crimes Act. The commissions are authorised to sentence defendants to death, and defendants are prevented from invoking the Geneva Conventions as a source of rights during Commission proceedings.
5. This article will also address, albeit briefly, the functioning of the Court system as it relates to members of the Israeli Defense Forces (IDF). There have been significant questions raised regarding accountability, and the ability of the military administration to hold IDF responsible for human rights and humanitarian law violations (unlawful killings, destruction of property, etc...) in the Occupied Territories. That said, the functioning of the court system with regard to Israeli security forces takes the examination in a different trajectory, and raises a different set of questions that goes beyond the scope of this review and has been addressed extensively elsewhere. For a comprehensive look at the question of impunity in the Military Courts, see below fn. 42.
6. There is some debate as to whether this status, post disengagement, has changed, but the prevailing view and one adopted by the Report of the Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967 (Mr. John Dugard) is that the Israeli status as occupier in the Gaza Strip remains. Specifically he states: 'Israel's withdrawal from Gaza does not, however, mean that the occupation of the territory has come to an end. Israel still retains effective control over the territory through its control of airspace, territorial sea and external land boundaries.' See Report of the Special Rapporteur on the Situation of Human Rights in the Palestinian Territories Occupied Since 1967, (authored by Mr. John Dugard) delivered to the Commission on Human Rights, UN doc. E/CN.4/2006/29 (Jan. 17, 2006).
7. Additionally, international and local NGOs have reported that Israel has denied passage of goods/services especially through the Karni/Muntar crossing and has some residual control of the Rafah border crossing to Egypt. Israel's indirect control stems from the fact that security measures implemented by the European agents stationed at the Rafah crossing are determined by Israel; that the ability to veto the crossing of Palestinians from Egypt into Gaza (though not vice-versa) deemed as a high-security threat rests with Israel (though they have rarely exercised this veto); and the fact that the Rafah crossing can be used by all Palestinians registered in the population registry, which is in itself still controlled by Israel. Combined, this suggests that 'sovereignty' has not been established in the territory. See Amnesty International, Public Statement - Israel/OT: Immediate action needed to avert humanitarian crisis in Gaza, MDE 15/025/2006 (23 March 2006).
8. See also, report by Gisha (Centre for the Legal Protection of Freedom of Movement), Disengaged Occupiers: The Legal Status of Gaza (17 Jan. 2007) available at: and
9. Contra, Y. Shany, 'Faraway, So Close: The Legal Status of Gaza after Israel's Disengagement', Hebrew University International Law Research Paper No. 12-06 available at .
10. See below pp. 19-20.
11. One notable example is the case of Marwan Barghouti who was arrested in Ramallah during Operation Defensive Shield on 15 April 2002 and subsequently tried in the Israeli court system and convicted in 2004.
12. See C. Greenwood, 'The Administration of Occupied Territory in International Law', in E. Playfair (ed.), International Law and the Administration of the Occupied Territories (1992) 241.
13. Israeli Defence Force Military Proclamation 2(3) (on file with author).
14. Israeli Defence Force Military Order Number 947 (on file with author). Also available at .
15. The PNA was established on the basis of the DOP signed by the Palestinian Liberation Organisation and Israel on 13 September 1993 and governs Palestinian affairs in the self-rule areas. It consists of the elected President, the appointed cabinet (executive committee) and the Palestinian Legislative Council (with elected members). The PNA is subject to the agreements signed with Israel, and as such, has no foreign relation powers. It is the body responsible for negotiating the permanent status issues in final settlement negotiations with Israel.
16. There is a separate protocol for the co-operation between Israeli and Palestinian authorities regarding criminal matters, including investigations, restraining orders, summons and questioning of witnesses, transfer of suspects, and execution of court orders, including search warrants.
17. A number of these orders, especially those related to settlements, remain unpublished.
18. See below p. 8.
19. See E. Benvenisti, International Law of Occupation (2nd ed., 2004) at 133, 135.
20. Hague Convention Respecting the Laws and Customs of War on Land, with Annexed Regulations, 18 October 1907, 36 Stat. 2277, T.S. No. 539 [hereinafter Hague Regulations].
21. Adopted on 12 August 1949; entered into force 21 October 1950. [Hereinafter Fourth Geneva Convention].
22. For a more detailed review of the purposes of the laws of occupation, see A. Roberts, 'Prolonged Military Occupation: The Israeli-Occupied Territories Since 1967', (1990) 84 AJIL 45-46.
23. See Hague Regulations, Article 43.
24. See discussion in Benvenisti, op. cit., fn. 16, pp. 7-26.
25. See Fourth Geneva Convention, Articles 27, 49, 64, 78, 142
26. International Committee of the Red Cross (ICRC) Commentary to Protocol I, Art. 87.
27. See Hague Regulations, Article 43 and Fourth Geneva Convention, Article 64.
28. See Hague Regulations, Articles 55, 56.
29. See also M. Sassoli and A. A. Bouvier, How Does Law Protect in War (1999) at 67-115.
30. See Jama'iat Iscan v Commander of the IDF in Judea and Samaria 37, (4) PD 785, 792 (1983)
31. Suleyman Tawfiq Oyyeb and others v The Minister of Defence and others High Court of Justice (HCJ) 606, 610/78, 15 March 1979, reprinted in (1985) 2 Palestine Yearbook of International Law 134-150, esp. 141-142
32. Bassil Abu Aita v The Regional Commander of Judea and Samaria, HCJ. 69/81, 4 April 1983, at sec. 10 & 11.
33. See D. Kretzmer, The Occupation of Justice: The Supreme Court of Israel and the Occupied Territories (2002) Chapter 1
34. Benvenisti, op. cit., fn. 16, pp. 109-112.
35. See Y. Blum, 'The Missing Reversioner, Reflections on the Status of Judea and Samaria', (1968) 3 ISR L REV 279.
36. See also M. Shamgar, 'The Observance of International Law in the Administered Territories', (1971) 1 ISR YBHR 262, 263-264. It is important to note that the Israeli position has not always been constant. In June 1967, the Israeli military administration in the West Bank issued Military Proclamation No. 3, stating that 'the military court and its officers must apply the provisions of the Geneva Convention of 13 August 1949 Relative to the Protection of Civilians in times of War. If there is any contradiction between the convention and the provisions of the Military Order the provisions of the Convention should prevail.' The portion of this Proclamation relating to the Geneva Convention was deleted in October 1967, after which the Israeli government no longer recognised the de jure applicability of the Fourth Geneva Convention.
37. An excellent discussion on these points can be found in R. Falk and H. B. Weston, 'The Relevance of International Law to Israeli and Palestinian Rights in the West Bank and Gaza: In Legal Defence of the Intifada', (1991) 32 Harv ILJ 129.
38. Egypt administered the Gaza Strip from 1948-1967 but never claimed sovereignty over this area. Jordan did establish territorial rule over the West Bank during its tenure.
39. Ha'etzni v State of Israel (Minister of Defence) 34 (3) P.D. 595 (1980) (on file with author). Indeed, until this case in 1980, the Israeli High Court had been content to ignore this question.
40. The Israeli position on the applicability of international law in the Occupied Territories is articulated in a paper presented by former Attorney General. See Shamgar, loc. cit., fn. 26, p. 262. Israel has agreed to apply what it has termed 'humanitarian provisions' of the Geneva Convention to the Occupied Territories, although the definition of what constitutes 'humanitarian provisions' is unclear.
41. See Kretzmer, op. cit., fn. 25, p. 34.
42. Abd al Nasser al Aziz, Abd al Aziz, Abd al Affu et al v Commander of I.D.F. Forces in the West Bank, H.C.J. 785/87, 10 April 1988 at sec. 2.
43. For a detailed discussion on the approach of the HCJ, see Kreztmer, op.cit., fn. 25.
44. This position was first adopted by the Court in 1972. See M. Qupty, 'The Application of International Law in the Occupied Territories as Reflected in the Judgments of the High Court of Justice in Israel', in E. Playfair (ed.), International Law and the Administration of Occupied Territories: Two Decades of Israeli Occupation of the West Bank and the Gaza Strip (1992) 104.
45. Also see Leah Tsemel, Attorney, et al. vs the Minister of Defence and others, H.C.J. 593/82, 13 July 1983, reprinted in (1984) 1 Pal YBIL 164 164-174 (esp. 168).
46. See also Bassil Abu Aita, op. cit., fn. 24, p. 10.
47. See Kretzmer, op. cit., fn. 25, pp. 1-4 for a further discussion on this point.
48. Information regarding the operations of the Military Court system is extremely limited. There is one seminal academic work on the Military Court system (see below fn. 36), and information can be gleaned from the reports and urgent actions undertaken by international and local based human rights organisations (particularly, the work of the Public Committee Against Torture in Israel-PCATI). These sources are cited when applicable. In order to obtain current information and confirm material cited in literature, much of which was dated, the author contacted several NGOs and lawyers working in the Military Court system, as well as the Israeli Ministry of Foreign Affairs and Justice. In sections where reference is made to practice, the authority for these observations (unless otherwise cited) comes from email and other communication that the author has had with lawyers and practitioners in the field. All such communication is on file with the author. To this end, the author is indebted to colleagues from Amnesty International, Lucy Mair of Human Rights Watch, Shlomi Swisa from B'Tselem, and a special word of gratitude to Eliahu Abram (Legal Director), and Carmi Lecker (Legal Researcher) of the Public Committee Against Torture in Israel, and Orna Kohn (Acting Director) of Adalah, for their kind support and critique on this piece. Any errors that may arise are the responsibility of the author alone.
49. L. Hajjar, Courting Conflict: The Israeli Military Court System in the West Bank and Gaza (2005) 1.
50. Arabic term for uprising.
51. According to the Israeli human rights organisation, B'Tselem, there were over 9,000 Palestinians held in Israel in prisons controlled by either the Israeli Prison Services (IPS) or the IDF as of March 2007 and, of these, 780 were administrative detainees. Updated information regarding Palestinians held in Israeli detentions centres is available at: .
52. Officially established in 1967 by Proclamation No. 3 in the West Bank, and by a separate proclamation in Gaza. After several amendments to these orders, they were eventually replaced by MO 378 in the West Bank and MO 300 for Gaza (with only the West Bank MO remaining in place).
53. See An Order Concerning Security Provisions (Yehuda and Shomron) No. 378, 5730-1970, Section 3.
54. B'Tselem, Law Enforcement on Israeli Civilians in the Occupied Territories (March 1994) at 8.
55. See also Benvenisti, op. cit., fn. 16, p. 133.
56. That said, a recent report by Human Rights Watch notes that most Palestinians were unaware of this option or were limited financially from pursuing this option, see Human Rights Watch, Promoting Impunity: The Israeli Military's' Failure to Investigate Wrongdoing, June 2005, Vol. 17, No. 7(E), p. 7.
57. In July 2005, the Knesset amended the Civil Wrongs (Liability of the State) Law (colloquially known as 'the Intifada law') to exempt Israel from compensation claims for damages caused by Israeli soldiers to Palestinians in the Occupied Palestinian Territories (OPTs). The amended law granted the Minister of Defense the authority to proclaim any area outside the state of Israel a 'Conflict Zone,' even if no war-related activity has taken place there. The proclamation denied those who sustain injury within the area the right to seek compensation from Israeli courts. The Law operated retroactively in cases of damages sustained since 29 September 2000, the date of the outbreak of the second intifada, and for claims already pending before the courts, which included claims for compensation for wrongful detention or for injuries sustained during detention. The amendment was subsequently rescinded on 12 December 2006 when a nine-justice panel on the HCJ held that Section 5.3 of the 'Intifada Law,' was illegal, and infringes a number of rights, among them, the rights to life, property and liberty, and declared the section invalid. See Adalah, et al. v The Minister of Defense, et al. H.C. 8276/05.
58. Which is part of the IDF.
59. See Section 2 of Military Order 378 Order in the Matter of Defense Regulations, 1970. (On file with author).
60. See below p. 13.
61. Information regarding the Court structure was derived from the website of the Ministry of Foreign Affairs at and subsequent specific information on specific numbers of appointments was obtained by the author through direct written communication with the Communications branch of the MFA.
62. Reservists do not have this autonomy, and are given instructions on how to handle their cases.
63. Until 1991, these single-judge courts could only adjudicate in cases where the sentence was 5 years or less.
64. There is some evidence to suggest that translators do not provide verbatim translation and tend to translate at will, sometimes not translating entire sections of testimony. It is not uncommon for defence lawyers to ask the military judge to instruct the translator to facilitate more accurately. For ethnographic work in this area, see L. Hajjar, 'Speaking the conflict, or how the Druze became bilingual: A study of Druze translators in the Israeli military courts in the West Bank and Gaza', (2000) 23 Ethnic and Racial Studies 2 at 313.
65. Sometimes referred to as 'pre-occupation law'.
66. See HCJ 5591/02 Yassin v Commander of Kziot Military Camp 57(1). P.D. 403 para. 9.
67. An important legal source with regard to detention conditions is the Emergency Powers (Detention) Law (1979). The detention regulations were set out pursuant to the grant of authority contained in this law. These regulations set forth the standards that govern the detention conditions of those who are administratively detained in Israel. They also apply to whoever is detained in the area pursuant to security legislation. This is established in regulation 6(b) of the Emergency Regulations (Offences Committed in Israeli-Held Areas-Jurisdiction and Legal Assistance) (1967).
68. See HCJ 1622/96 Abed Al Rachman Al Hamed v General Security Services, Piskei Din vol. 50(2) 749 (1996).
69. This was decided in a 1988 case concerning the conditions of administrative detainees held inside Israel - HCJ 253/88 Sejdia vs Minister of Defense Piskei Din vol. 42(3) 801 at 822 - and this ruling applies also to regular detainees and prisoners.
70. All Israeli detention centres for housing Palestinians are located in Israel but there are several temporary detention facilities which are located in the West Bank and are regulated by the Imprisonment Facility Operation (West Bank) Order 29-1967 (HCJ 3278/02 [2002], Ctr. for the Def. of the Individual v IDF Commander, 57(1) P.D. para. 22. The detention conditions in the area are primarily laid down by the Imprisonment Facility Operation (West Bank) Order 29-1967 [hereinafter, the Imprisonment Order]. This order provides directives regarding the conditions of imprisonment in the area. Most of its provisions, save the following three, have no bearing on the matter at hand. First, the order specifies that 'prisoners shall be provided with appropriate nourishment that will guarantee the preservation of their health,' Imprisonment Order, sec. 4, that 'prisoners shall be provided with necessary medical treatment,' Imprisonment Order, sec. 5(a), and that 'prisoners shall receive a receipt when their family identification and personal ID cards are taken,' Imprisonment Order, sec. 7.
71. See Bassil Abu Aita, op. cit., fn. 24
72. Jama'iat Iscan v Commander of the IDF in Judea and Samaria 37, (4) PD 785, 792 (1983).
73. For a discussion on the role of the Israeli High Court (as well as its composition and profile) see Kretzmer, op. cit., fn. 25, pp. 9-15.
74. 'Operation Defensive Shield' began 29 March 2002. The operation's purpose was, according to government officials, to 'destroy the terror infrastructure'. During and immediately after the first Israeli incursions into the West Bank and Gaza Strip (which began on 27 February and continued until mid-March) there was a sharp escalation in suicide bombings and other attacks deliberately targeting Israeli civilians by members of Palestinian armed groups. At least 71 Israeli civilians were killed in such attacks between 2 March and 1 April 2002, carried out by members of armed Palestinian groups such as Hamas, Islamic Jihad, and the Martyrs of al-Aqsa. By 20 May 2002, the number of Israelis killed in Palestinian suicide bomb attacks in Israel since 2 March had risen to 104; doubling the number of Israelis killed in Israel since the beginning of the intifada. See .
75. This period of time was reduced in 1992 from 18 to 8 days for minors and those detained on minor offences. However, NGOs report that adherence to this reduction is not widely supervised.
76. See HCJ 3239/02 Marab et al. v IDF Commander in the West Bank (2002).
77. It should be noted that the legislation has been subject to change several times over the last 3 years, and is likely to undergo additional review prior to publication.
78. The original version of this order was issued in 1967. The English translation is available in J. Rabah and N. Fairweather, Israeli Military Orders in the Occupied Palestinian Territories: 1967-1992 (1993) at 182-209.
79. The author is grateful to Eliahu Abram, Legal Director, of the Public Committee Against Torture in Israel for providing current practices under this order.
80. The HCJ has accepted in cases where the defendant is alleged to have committed a state security offence, information can be considered 'privileged' and therefore not admissible for criminal trial. See HCJ 7015/02 Ajuri v The Commander of IDF Forces 144 in the West Bank.
81. See HCJ 253/88 Sajadia v Minister of Defense at 819-820.
82. Benvenisti, op. cit., fn. 16, p. 116.
83. In HCJ 3239/02 Marab v IDF Commander in the West Bank (2002) 57(2) P.D. 349 paras. 37-39
84. HCJ 5129/00 Muhammad 'Abd al-'Aziz v General Security Service et al. decision of 19 July 2000.
85. See also, The Public Committee Against Torture, Flawed Defense: Torture and Ill-treatment in GSS Interrogations Following the Supreme Court Ruling, 6 September 1999-1996. September 2001, especially 15-17.
86. There have also been exceptions where Palestinians from the West Bank have also been tried under Israeli Criminal Law in the Israeli Court systems. See below fn. 8.
87. In October 2005, the Israeli government promulgated new legislation in the form of the Criminal Procedure (Enforcement Powers-Special Provisions for Investigating Security Offences of Non-Residents) (Temporary Provision) Law, 5765-2005. The bill passed the first reading before being referred to the Committee. It was subsequently delayed in the Committee and at the intervention of the Knesset legal advisor, the 'fast track' process (which attempted to bring in the legislation prior to the March 2006 Israeli general elections) was derailed. It was not until March 2006 that the legislation was put back in the Constitution, Law and Justice Committee's agenda for debate and subsequently changed by the Committee. Most notably, the committee was receptive to the discrimination argument and the bill is now worded as amending the Israeli criminal procedures for all, and would thus be applicable to security suspects - citizen, resident and non-resident alike. The committee chair also noted the concerns raised by NGOs and Israeli lawyers and shortened the temporary scope of the bill to 3 months, during which time a more comprehensive review of appropriate criminal procedures was due to take place. In addition, some of the parameters were limited - the most notable being that incommunicado detention would be limited to 30 days rather than 50 days as originally prescribed. After significant pressure was applied by NGOs, the Knesset legal advisor confirmed that it would not be appropriate or indeed lawful to bring the legislation before the entire Knesset for a second and third reading and try to 'fast track' it into law before the elections on March 28, 2006. The bill again came before the Committee on 26 June 2006 and was passed.
88. This figure was cited by the Chief Military Prosecutor in a meeting of the Israeli Bar Association Committee on the 'Rule of Law and Civil Rights' and the Bar Committee on 'Security & Army' (September 18, 2006). Relevant section (in Hebrew) on file with author. The author is grateful to Carmi Lecker, Legal Researcher for the Public Committee Against Torture in Israel, for providing translation for the relevant sections of the text.
89. L. Hajjar, 'Cause Lawyering in Transnational Perspective: National Conflict and Human Rights in Israel/Palestine', (1997) 31 Law & Soc'y Rev. 473, 482.
90. Ibid.
91. See Incal v Turkey, ECHR 9 June 1998, paras. 68-73.
92. Human Rights Committee, General Comment 13 (Equality before the Courts and the Right to Fair Trial by an Independent Court Established by Law: Article 14) 13 April 1984, para 4.
93. Ibid.
94. See concluding observations by the Human Rights Committee: Peru 15 CCPR/ CO/70/PER, November 2000.
95. There are numerous reports which outline these concerns. See Machsomwatch, Observations of Remand Extension Hearings in Israeli Military Courts During 2006, March 2007, p. 3, 16
96. International Commission of Jurists, Attacks on Justice, 27 August 2002
97. Public Committee Against Torture, loc. cit., fn. 66.
98. Both domestic and international human rights organisations have argued that detainees are prone to 'confess' owing to pressures, such as incommunicado detention and interrogation methods that meet the threshold of cruel, inhuman or degrading treatment or torture. Human rights and civil liberties advocates note that extended detentions without appropriate legal supervision can create conditions conducive to ill treatment, and it is unsurprising to note that allegations of cruel, inhuman or degrading treatment, some of which reach the threshold of torture are not uncommon. For a recent report on conditions of those in administrative detention see Report of the Special Representative of the Secretary-General on the Situation of Human Rights Defenders, Mission to Occupied Arab Territories, UN doc. E/CN.4/2006/95/Add.3 (10 March 2006) (prepared by H. Jilani).
99. See, also, Public Committee Against Torture in Israel, Back to a Routine of Torture: Torture and Ill-treatment of Palestinian Detainees during Arrest Detention and Interrogation, (September 2001-April 2003).
100. Under Article 2.1 of the UDHR: Everyone charged with a penal offence has the right to be presumed innocent until proven guilty according to the law in a public trial at which he has had all the guarantees necessary for his defence. Under Article 14.2 of the ICCPR: Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to the law. Under Article 6.2 of the ECHR: Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
101. For additional details on Open-Fire Regulations see B'Tselem, Take No Prisoners: The Fatal Shooting of Palestinians by Israeli Security Forces during 'Arrest Operations,' (May 2005) 18-19.
102. See op. cit., fn. 42, p. 98.
103. Information provided to author by B'Tselem. The number of investigations that have been open may be higher. In a December 2005 meeting with NGOs, MAG unofficially indicated that over 200 investigations were ongoing. However, only the 132 figure has officially been given. Reference to the meeting and statement can be found in a Human Rights Watch press release available at: .
104. See op. cit., fn. 36, p. 2.