The judicial arm of the occupation: The Israeli military courts in the occupied territories

International Review of the Red Cross

Volumn 89, Issue 866, 2007, Pages 395-419

  Weill, Sharon ^a  

^a Geneva Academy   (Switzerland)

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EID: 84904155817     PISSN: 18163831     EISSN: 16075889     Source Type: Journal    
DOI: 10.1017/S1816383107001142     Document Type: Article

References (109)

1. Netanel Benisho, “Criminal law in the West Bank and Gaza”, IDF Law Review, Vol. 18 (2005), p. 299, at p. 300 (in Hebrew).
2. According to Adalah, the Legal Centre for Arab Minority Rights in Israel, “since 1967, Israel has arrested close to 700,000 Palestinians … With the outbreak of the second intifada and in its wake, the number of prisoners rose dramatically. Data from the Israel Prison Service indicates that at the end of October 2006 the total number of Arab prisoners classified as “security prisoners” was about 9,140, including 289 Palestinian citizens of Israel. Over 98% of them have been tried in military courts.” Available at http://www.adalah.org/newsletter/eng/apr07/ar3.php (last visited 1 May 2007). According to Lisa Hajjar, “since 1967, hundreds of thousands of Palestinians have been arrested … of those who are charged, approximately 90 to 95 percent are convicted. Of the convictions, approximately 97 percent are the result of plea bargains.” Lisa Hajjar, Courting Conflict: The Military Court System in the West Bank and Gaza, University of California Press, Berkeley, 2005, at p. 3.
3. Although numerous and complex legal questions having a vital impact on the liberty of thousands of people arise through the military judiciary process, only a few academic studies on it have been conducted. Several reports which dealt with procedural rights of suspects and accused persons have been published, but they have not been updated. See Israël et Territoires Occupés: Justice Militaire, Amnesty International, London, 1991;
4. The Military Court System in the West Bank, B'tselem, Jerusalem, 1989 (in Hebrew);
5. Routine Torture: Interrogation Methods of the GSS, B'tselem, Jerusalem,1998;
6. Jordan J. Paust, Gerhard von Glahn and Gunter Woratsch, Inquiry into the Israeli Military Court System in the Occupied West Bank and Gaza, International Commission of Jurists, Geneva, 1989;
7. Raja Shehadeh, The West Bank and the Rule of Law, International Commission of Jurists, Geneva, 1980.
8. For other publications see Moshe Drori, “Double criminal jurisdiction in the Administered Territories”, Hapraklit, Vol. 3 (1979), p. 386 (in Hebrew);
9. Moshe Drori, “The legal system in Judea and Samaria: A review of the previous decade with a glance at the future”, Israel Yearbook of Human Rights, Vol. 8 (1978), p. 144;
10. Uzi Amit-Kohn et al., Israel, the Intifada and the Rule of Law, Israel Ministry of Defence Publication, Tel Aviv, 1993;
11. Amnon Rubinstein, “The changing status of the “Territories” (West Bank and Gaza): from escrow to legal mongrel”, Israel Law Review, Vol. 8 (1988), p. 59;
12. Amnon Rubinstein, “Israel and the Territories: jurisdiction”, Iyounei Mishpat, Vol. 14 (3) (1989), p. 415 (in Hebrew);
13. Meir Shamgar, “Legal concepts and problems of the Israeli military government: The Initial Stage”, in Meir Shamgar (ed.), Military Government in the Territories Administered by Israel, 1967–1980
14. The Legal Aspects, Harry Sacher Institute for Legislative Research and Comparative Law, Jerusalem, 1982, p. 13;
15. Uri Shoam, “The principle of legality and the Israeli military government in the Territories”, Military Law Review, Vol. 153 (1996), p. 245;
16. Raja Shehadeh, Occupier's Law: Israel and the West Bank, Institute for Palestinian Studies, Washington DC, 1985;
17. Raja Shehadeh, From Occupation to Interim Accords: Israel and the Palestinian Territories, Kluwer Law International, London, 1997.
18. Order Concerning Establishment of Military Courts (No. 3), 7 June 1967, published in Collection of Proclamations, Orders and Appointments of the Military Commander in the West Bank Region (hereinafter CPOA), Israeli Defense Forces No. 1, p. 25.
19. Benisho, above note 1, p. 302.
20. Final Records of the Diplomatic Conference of Geneva of 1949, Vol. II, Section A, Federal Political Department, Berne, repr. in 2005, p. 640.
21. Marco Sassoli, “Legislation and maintenance of public order and civil life by occupying powers”, European Journal of International Law, Vol. 16 (4) (2005), p. 661, at p. 668;
22. Jean S. Pictet (ed.), IV Geneva Convention relative to the Protection of Civilian Persons in Time of War: Commentary, ICRC, Geneva, 1958, pp. 335–337.
23. According to Sassoli, “Article 64 certainly provides a lex specialis regarding the situation in which an occupying power is absolutely prevented from respecting penal law” (IV Geneva Convention relative to the Protection of Civilian Persons in Time of War: Commentary., p. 670).
24. For the relation between Article 43 of the Hague Regulations and Article 64 of the Fourth Geneva Convention see also Gerhard von Glahn, The Occupation of Enemy Territories: A Commentary on the Law and Practice of Belligerent Occupation, University of Minnesota Press, Minneapolis, 1957, p. 115;
25. Raymond T. Yingling and Robert W. Ginnane, “The Geneva Conventions of 1949”, American Journal of International Law, Vol. 46 (1952), p. 393, at p. 422.
26. Von Glahn, above note 8, p.108.
27. Fourth Geneva Convention, Article 64(1).
28. Pictet, above note 7, p. 336.
29. Fourth Geneva Convention., p. 337.
30. Fourth Geneva Convention., pp. 339–340.
31. For the applicability of human rights law to occupied territories see Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territories, Advisory Opinion, ICJ Reports 2004, para. 112 (hereinafter Wall case).
32. For theoretical approaches see Al Haq, The Applicability of Human Rights Law to Occupied Territories: The Case of the Occupied Palestinian Territories, Ramallah, 2003.
33. Of interest is that although the official position of the state of Israel is the non-applicability of human rights law in the occupied territories, the Israeli High Court nevertheless applied it. See for example HCJ 3239/02, Marab et al. v. The IDF Commander in the West Bank, 57(2) PD (Reports of the Israeli High Court of Justice), p. 349 (2003)
34. excerpted in the Israel Yearbook on Human Rights, Vol. 34 (2004), p. 307; the entire English version is available on the Internet site of the Israeli High Court of Justice: www.eylon1.court.gov.il/eng/verdict/framesetsrch/html (last visited 29 April 2007).
35. For a complete list of these instruments, see Louise Doswald-Beck and Robert Kolb, Judicial Process and Human Rights: Texts and Summaries of International Case-law, International Commission of Jurists, N.P. Engel, 2004, p. 119.
36. Doswald-Beck and Kolb, above note 16, p. 66.
37. United Nations Special Rapporteur, UN Doc. E/CN.4/1998/39/Add.1, para. 78, cited in Federico Andreu-Guzmán, Military Jurisdiction and International Law: Military Courts and Gross Human Rights Violations, Vol. 1, International Commission of Jurists/Colombian Commission of Jurists, Geneva, 2004, p. 10.
38. Wall case, above note 14, para. 106. See also Legality of the Threat of Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, para. 25;
39. Louise Doswald-Beck and Silvain Vité, “International humanitarian law and human rights law”, International Review of the Red Cross, No. 293 (March- April 1993), p. 94.
40. Amendment No. 89 to Article 4 of the SPO (Order No.1550) (2004), as yet unpublished. See Benisho, above note 1, pp. 311–12;
41. Haim Shibi, “The military general attorney: the Israeli review of military acts is better than the American”, Halishka, Vol. 69 (2004), p. 3, at p. 6 (in Hebrew).
42. HCJ 87/85, Arjub v. The Military Commander in the West Bank, 42(1) PD, p. 353 (1988).
43. Yoram Dinstein, “The international legal status of the West Bank and the Gaza Strip - 1998”, Israel Yearbook on Human Rights, Vol. 28 (1998), p. 37, at p. 45;
44. Eyal Benvenisti, “Responsibility for the protection of human rights under the interim Israeli-Palestinian agreements”, Israel Law Review, Vol. 28 (1994), p. 297, at p. 313.
45. In the Israeli legal system (military and civil), according to the dual approach international agreements bind the courts only if they are endorsed by domestic legislation. (For more details on the dual approach see Lassa Oppenheim, International Law, 8th edn, Longmans, London, 1955, p. 53.)
46. Accordingly, in the Waffa case the High Court of Justice ruled that it is the proclamation and not the interim agreement that is legally binding in the Region (HCJ 2717/96, Waffa v. Ministry of Defence, 50(2) PD p. 848 [1996], at p. 853).
47. Derek W. Bowett, “Jurisdiction: changing patterns of authorities over activities and resources”, British Yearbook of International Law, Vol. 53 (1982), p. 1, at p. 4.
48. F. A. Mann, “The doctrine of jurisdiction in international law”, Recueil des Cours 111 (1964-I), p. 9, at p. 13;
49. Malcom N. Shaw, International Law, 5th edn, Cambridge University Press, Cambridge, 2003, p. 576;
50. Vaughan Lowe, “Jurisdiction”, in Malcolm D. Evans (ed.), International Law, Oxford University Press, Oxford, 2003, p. 332;
51. Michael Akehurst, “Jurisdiction in international law”, British Yearbook of International Law, Vol. 46 (1972), p. 145.
52. Thus under public international law it is illegal to apprehend persons in third states in order to bring them to trial in a domestic court. However, although such apprehension breaches international law and violates the human rights of the person abducted, it does not necessarily impede the possibility of holding a judicial procedure against that person, once brought to the state. This doctrine, named male captus, bene detentus, is practised in Israel. See the Eichmann case: HCJ 336/61, Eichmann v. State of Israel, 16(3) PD, p. 2033 (1961), at p. 2067;
53. and the Bargouti case: S.C.C 1158/02, The State of Israel v. Marwan Ibn Hatib Bargouti (2002), para. 37.
54. Zvi Hadar, “The military courts”, in Shamgar, above note 1, p. 191.
55. Arnold H.Loewy, Criminal Law, 4th edn, West Publishing Company Minnesota, Nutshell series, 2003,p.246.
56. Ilan Pappe, History of Modern Palestine, Cambridge University Press, Cambridge, 2004, p. 196.
57. Military Court of Appeals (MCA)/111/00, Al Matzri v. The Military Prosecutor, Selected Judgment of Military Courts (hereinafter SJMC), No. 11, p. 140.
58. For a complete examination of the protective principle, see Akehurst, above note 40, p. 158;
59. Mann, above note 40, p. 94;
60. Bowett, above note 39, p. 10.
61. Bowett, Selected Judgment of Military Courts (hereinafter SJMC).
62. Mann, Selected Judgment of Military Courts (hereinafter SJMC).;
63. Shaw, above note 40, p. 592
64. Bowett, above note 39, p. 11.
65. Selected Judgment of Military Courts (hereinafter SJMC)., pp. 10–11;
66. Shaw, above note 40, p. 591;
67. Akehurst, above note 40, p. 158.
68. “Even where there is a basis in international law for exercising jurisdiction, principles of comity often suggest that forbearance is appropriate … States are obliged to consider and weigh the legitimate interests of other states when taking action that could affect those interests.” Comment by the US State's department in the context of civil jurisprudence. However, it seems relevant also for criminal affairs. Cited in Bowett, Selected Judgment of Military Courts (hereinafter SJMC)., p. 21.
69. Ramallah (RAM)/160/68, The Military Prosecutor v. Wildman, SJMC, No. 1, p. 377;
70. RAM/78/69, The Military Prosecutor v. Bakir, SJMC, No. 1, p. 450.
71. RAM/78/69, The Military Prosecutor v. Akrash, SJMC, No. 1, p. 450.
72. Hadar, above note 42, p. 193.
73. Military Prosecutor v. Akrash, above note 55.
74. MCA/375/03, Eit v. The Military Prosecutor (2003) (unpublished), at p. 4.
75. The same idea was expressed in MCA/29, 28/98, Raduan v. The Military Prosecutor, SJMC, No. 11, p. 1 (1998), at p. 13.
76. Order No. 1455 (Amendment No. 80 to the SPO) (1997), CPOA, No. 177, p. 2354.
77. Order Concerning the Prohibition of Training and Contact with Hostile Organization outside the Region (No. 284) (1968), published in CPOA, No. 16, p. 582 (hereinafter Order Concerning Hostile Organization).
78. Order Concerning Dangerous Drugs (No. 558) (1975), published in CPOA, No. 34, p. 1335.
79. Gaza (G)/1410/74, The Military Prosecutor v. Jayi et al., SJMC, No. 4, p. 25, at p. 30.
80. Excerpted in Israel Yearbook on Human Rights, Vol. 7 (1977), p. 259.
81. Eit case, above note 59, p.3.
82. Sassoli, above note 7, p. 664.
83. Ofer/3887/02, The Military Prosecutor v. Salem (2003) (unpublished). Available in Hebrew at the military court's internet site: http://elyon1.court.gov.il/idf_yesha/verdict/search_idf_yesha/verdict_by_ misc.html (last visited 27 May 2007).
84. PCIJ, Series A, No. 10, 1927, p. 19.
85. Mann, above note 40, p. 33;
86. Lowe, above note 40, p. 335.
87. Lowe, unpublished., p. 336.
88. Akehurst, above note 40, p. 167.
89. Mann, above note 40, p. 11.
90. “The application of international law to regulate claims to criminal jurisdiction is generally conceded”. Bowett, above note 39, p. 5.
91. “Article 64 seems to include explicitly and clearly extraterritorial jurisdiction for security reasons.” Arie Pach, “Human rights in West Bank military courts”, Israel Yearbook on Human Rights, Vol. 7 (1977), p. 222, at p. 238. This interpretation was also suggested by the military court. See e.g. the Akrash case, above note 55.
92. See Bowett, above note 39, p. 24. In order to resolve the problem of concurrent jurisdictions (which may contain abuses) he suggested the balance test, because “agreeing on the principles of jurisdiction and their limits” seems not to be achievable. Those limits may be understood as limits to the initial legislative jurisdiction, and not necessarily to the enforcement.
93. Akehurst, above note 40, p. 169.
94. Nablus (NB)/5193/81, The Military Prosecutor v. Abu Higla, SJMC, No. 6, p. 581.
95. Excerpted in English in Israel Yearbook on Human Rights, Vol. 19 (1989), p. 384.
96. SJMC., p. 385.
97. SJMC., Article 3. The definition of “contact” includes contact with a person who is reasonably suspected of acting on behalf of a hostile organization.
98. SJMC., Article 1.
99. RAM/4252/82, The Military Prosecutor v. Dir Bazia, SJMC, No. 6(2), p. 421.
100. Excerpted in English in Israel Yearbook on Human Rights, Vol. 19 (1989), p. 389. In this case the accused, who was a resident of Ramallah, underwent military training in Amman in 1979 in order to qualify for service as a guard in the Muslim Brotherhood organization's headquarters in Amman. He claimed in his defence that he had no intention of harming the Region, and was acquitted.
101. Akehurst, above note 40, p. 158.
102. Bowett, above note 39, p. 11.
103. G/235/99, The Military Prosecutor v. G'abri, SJMC, No. 12, p. 255.
104. MCA/10/11/02, Zu'hrub v. The Military Prosecutor (2002) (unpublished). However, it was not explicitly ruled that it is not a security offence! In this particular case the Military Court of Appeals convicted the accused on another basis, so it did not have to decide on this issue. It should be stressed that not all convicted persons can reach the Court of Appeal, and in the routine work of the courts it is very probable that other cases are still decided in the same way.
105. unpublished., p. 16.
106. G/376/00, The Military Prosecutor v. Shaleh, SJMC, No. 12, p. 332, at p. 339.
107. Akehurst, above note 40, p. 168.
108. SJMC., p. 159.
109. MCA /16/03, A'lian v. The Military Prosecutor (2003) (unpublished). Available in Hebrew at http:// elyon1.court.gov.il/files_idf_yesha/03/160/000/a47/03000160.a47.HTM (last visited 27 May 2007).