The military courts were established several years after Israel occupied the West Bank, under the terms of the Order regarding Security Provisions, 5730-1970.
The military court system includes several components:
- Two court instances:
The court of the first instance – these are situated at Ofer Base, near the village of Beitunia, and at Salem near the village of the same name.
Appeals instance – this is situated at Ofer Base and is superior to the court of the first instance.
- Military courts hearing applications to extend the detention of interrogees have been established alongside the GSS interrogation facilities (Kishon, Petach Tikva, Ashkelon, and the Russian Compound in Jerusalem).
- Military court hearing administrative detentions – these courts are situated at Ofer Base and Ketsiot Prison in the Negev.
Some of the judges in the military courts are judges serving in the standing army, while others are attorneys who serve as non-permanent judges performing judicial functions during their army reserve service.
The military courts system
Together with the army and the Civil Administration, the military courts system is the third mechanism by which the State of Israel, as the occupying power, imposes its rule over the Palestinian population in the West Bank. The Oslo Accords established three “areas” in the West Bank. In Area C, Israel holds civilian and security control; in Area B, Israel holds security control while the Palestinian Authority holds civilian control; and in Area A, the Palestinian Authority holds civilian and security control. Despite this, however, the accords stated that the Israeli military courts are also empowered to try any person who committed an offense in Area A, if the offense injured or was intended to injure the security of the West Bank as a whole. This is consistent with the powers granted to the military courts in accordance with the Order regarding Security Provisions (Judea and Samaria) (No. 1651), 5770-2009) (hereinafter: “the Order regarding Security Provisions.”) In practice, therefore, the authority of the military courts extends over any Palestinian resident suspected of involvement in any offense that injures security.
The military courts are empowered to hear security, criminal, and administrative matters. According to official statistics from the Office of the Judge Advocate General, in 2009 some 3,000 indictments were served at the military courts, and thousands of detention hearings were held (official figures have not yet been published regarding the number of detention hearings in 2009; the most recent official figure is for 2006, when some 14,000 such hearings took place). The indictments served at the military courts include offenses of being unlawfully present within the borders of the State of Israel; criminal offenses (such as theft); and security offenses. It should be noted that a substantial proportion of the cases classified as security offenses do not involve violence, but relate to charges such as membership and activity in an unauthorized association (the activity referred to may be manifested in participation in a procession or spraying graffiti); providing services for an unauthorized association (for example – operating a kindergarten supported by that association); bearing office in an unauthorized association; and carrying or trading in weapons.
Similarities and Differences between Military Law and Law in the State of Israel
In terms of the rights of detainees and defendants, the military legislation applied in the military courts is significantly stricter than the legislation in Israel or Western countries. By way of example, the period for which a detainee may be held in detention before being brought before a judge is 8 days (compared to 24 hours in Israel), while the maximum period of detention pending completion of a trial is two years (compared to 9 months in Israel). In addition, the age of majority is 16 years, and a child who has reached this age will be prosecuted and detained as an adult in the Territories. Military legislation also permits arbitrary restrictions on the public nature of the hearing.
In contrast to a civilian legal system, the military courts system in the West Bank is not intended to function as a comprehensive system providing solutions for resolving disputes and balancing different considerations, such as deterrence and rehabilitation. As the judicial arm of an occupying army, the sole purpose of this system is to impose Israel’s perception of security on the Palestinian residents of the occupied area.
Accordingly, the military courts system also lacks vital tools for securing public interests other than general deterrence, such as a probation service, means of inspection for alternatives to detention, and public or community service as alternatives to imprisonments or fines.
It should also be emphasized that although the security legislation empowers the courts in the West Bank to try any person who commits an offense within their area or jurisdiction, in practice the military courts deal solely with cases relating to Palestinian residents. All cases involving settlers who have committed criminal and/or security offenses in the West Bank are brought before the civilian courts within the State of Israel.