'Hollow formality': Israeli rights group blasts military courts for Palestinians

Thousands of Palestinians are brought before Israeli military courts each year on charges ranging from stone-throwing to illegal entry. Most end up in custody awaiting a verdict, the judicial process reduced to a "hollow formality," a rights group says.

The Israeli B’Tselem group has stated in its 41-page report, based on 260 case files 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.”

According to the group, most Palestinian defendants enter plea bargains simply because they may end up being in jail longer if they choose not to.

"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," B’Tselem concludes in the report entitled ‘Presumed Guilty: Remand in Custody by Military Courts in the West Bank’.

"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,” it adds.

According to B’Tselem, the threshold for meeting the requirement of the so-called "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 ignore complaints made by both adult and minor detainees regarding ill-treatment or abuse during their interrogation, ruling that such allegations should be deliberated at trial only," the civil rights group reported.

B'Tselem noted that it had to rely only on partial figures because the Israeli Military Courts Unit doesn't publish figures on the number of motions for remand, alleging that "this information is not available electronically."

Military courts have operated in the so-called Occupied Palestinian Territories since 1967.

"Over the years, they have come to be one of the main apparatuses serving the regime of occupation," according to B'Tselem, which adds that to date, hundreds of thousands of Palestinians have been brought before these courts. Military courts stopped 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 annexed by Israel.

More than 500,000 Israelis live in settlements in the West Bank and around East Jerusalem, built since the 1967 Israeli occupation of Palestinian territories. B'Tselem notes that while officially military courts are authorized to try anyone who commits an offense in the West Bank (including settlers, Israeli settlers residing in Israel and foreign citizens) in the early 1980s the Attorney General ruled 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 violation was committed against local citizens.

The report highlights the number of Palestinians in pre-verdict detention for up to a year at between 605 to 1,378 from 2008-2013, with 2013 setting a record of 1,343 people under arrest for up to one year, and as many as 151 locked for up to two years.

B'Tselem also contacted the IDF for information about the number of cases in which the military prosecution asked for remand, and the number of cases in which the court granted request. It took the IDF spokesperson six months to provide B'Tselem with a response, the group said.

The figures provided by the IDF of a period of pre-verdict detention rulings in August 2014 show that the "military prosecution routinely asks for remand in custody, and such motions were made in 90 percent of the cases. The military courts, for their part, grant these motions in the vast majority of the cases, and 90 percent of them were granted in cases in which the court of first instance made a decision."

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The military judges and prosecutors are always Israelis, B'Tselem mentions. "They are soldiers in uniform enforcing martial law on the civilian Palestinian population living under military rule."

"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," the reports concludes.

The Israeli military said the report used "selected examples in a biased manner which distorts the reality of the situation," AP reported. It says the courts act "in accordance with the principles of the detention laws and high court rulings of Israel," and order defendants released when there are no grounds for detention.