The president of the military courts in the territories, Col. Netanel Benishu, has determined that the military prosecution does not meet its legal requirements to provide Palestinian defendants with the evidence against them in a “system-wide and systematic” way. This damages their right to a fair trial, said Benishu.
Benishu, the new president of the military courts, heard the case of three Palestinians charged with attempted murder. They allegedly threw rocks at an Israeli car near the village of Hussan during Operation Pillar of Defense in November 2012, and as a result seriously injured Ziona Kala.
The indictment against the three was filed in December 2012, but in May it turned out that part of the investigative material in the case, such as films, were not given to the defense. Also, only in May did the military prosecutor notify the defense that confidential evidence in the case would not be given to them.
The defendants’ lawyer appealed the decision to place the evidence under a secrecy order, claiming the late date it was done harmed the defense. “There is great justice in the claim on the delay in invoking secrecy,” wrote the judge. He said the prosecution violated its duties to the defendants time after time. The failure was not just a one-time occurrence, but a systemic failure on the part of the entire military judicial system. He ordered the military prosecution to immediately formulate clear rules to provide a solution to meeting these commitments.
Benishu also ruled that the prosecution’s actions violated Section 72 of the Geneva Convention, which deals with the rights of citizens to a fair trial in times of hostilities.
But in the end Benishu denied the petition in all involved with the confidential material, and wrote in his decision that exposing the material would harm vital interests. Nonetheless, he ordered the prosecution to deliver the film from a security camera located near the event to the defense. This film was not included in the secret material.
The IDF Spokesman’s Office said the military prosecution is studying the judge’s decision and will hold a discussion with the relevant bodies to examine the significance of the ruling.