How many soldiers does it take to extract one statistic from the Israeli military justice system regarding the policy of putting Palestinians on trial? Two lieutenant colonels – a military judge and a military prosecutor – provide their respective answers.
The chief military prosecutor for Judea and Samaria (the West Bank), Lt. Col. Morris Hirsch claims that it would take 307 working days, each comprising 12 hours, or a total of 3,685 hours, to check the 6,700 relevant files. The president of the Ofer military court, Lt. Col. Menachem Lieberman believes that the entire checking process would take less than 60 hours.
This disagreement is but one more chapter in a war waged by the Israeli military prosecution against Nariman Tamimi, a Palestinian from the West Bank village of Nabi Saleh.
A short reminder: Tamimi, 37, a mother of four, was arrested on June 28 while participating in the village’s weekly demonstration against the theft of its lands - in particular its well - and the Israeli occupation in general. The soldiers claimed she entered an area declared a closed military zone, which was within the village's lands.
Contrary to the practice in similar cases, Tamimi was not released after a few hours, but held in custody for four days. Lt. Col. Hirsch personally appeared before a military appeals court in order to passionately oppose a lower military court’s ruling to release her. Not finding Hirsch’s position convincing, the military court appeals judge ordered the release of Tamimi’s, who returned home on July 1.
The military prosecution then lost no time in presenting an indictment sheet based on a single offense: violation of a closed military zone order.
Tamimi’s defense attorneys, Neri Ramati and Gabi Lasky, asked the military prosecution for a list of indictments in which the sole offense was violation of a closed military zone order. Hint: The two lawyers and their client are convinced that the prosecution is targeting Tamimi, as part of activities to suppress the Palestinian popular struggle against Israel’s occupation. In September, Lieberman wrote in his decision that an indictment based on the violation of a local closed military zone order is “not a routine matter that is commonly encountered.”
Judge Lieberman instructed the military prosecution to specify what resources it would require in order to carry out this checking process. In November, Hirsch explained why the military prosecution could not supply the statistics requested by Tamimi’s defense attorneys. In December, Lieberman decided that the military prosecution could and should do so. Here is a summary of Hirsch’s arguments and Lieberman’s responses:
Hirsch stated that every file would have to be opened manually, because the military courts’ computerized Magen Tzedek system was not sufficiently reliable.
Lieberman: “I do not understand why and, in my view, this is not what is required… The prosecution is arguing that, on the one hand, it is impossible to rely on a check made by the computerized system, although the prosecution has not specified why this is so. It is reasonable to assume that the prosecution is afraid that there are a number of cases in which a mistake has been made. However, on the other hand, the prosecution is arguing that the resources required to check each file would be too numerous and that it would therefore not be realistic to deploy them.
“I find the prosecution’s approach bizarre. The prosecution is claiming that a certain checking method is insufficiently accurate, although the impression is that its precision is more than adequate; at least, no argument has been presented as to why such a method is inadequate.But the prosecution is claiming that a thorough check would be too expensive in view of the resources that would be required.”
Hirsch also stated that the check would have to be made with regard to files classified as violations of public order, not just those classified as violations of closed military zone orders (illegal residence).
Lieberman: “I find this position rather bizarre… Here is another argument that the prosecution is presenting without providing any factual basis for it and without apparently having verified whether in fact a problem exists. The prosecution could, if it wanted to do so, randomly check a number of files defined as violations of public order and could determine whether indictments were submitted for the violation of a closed military zone order. Thus, it could assess the scope of this phenomenon, if it exists.”
Hirsch calculated that in the past three years – that is, between November 2010 and November 2013 – a total of 6,700 incidents related to the relevant offenses (illegal residence and violations of public order) were registered in the West Bank military courts. In order to open these files by hand, the following would be required: Three minutes to order each file from the police; 15 minutes for the police to collect each file; and an average of 15 minutes to check the offenses, indictments and convictions in each file. All in all, Hirsch noted, the military prosecution and law enforcement agencies would require an average of 33 minutes per file, amounting to “221,000 minutes of work, or 3,685 working hours. If that figure is divided into consecutive 12-hour workdays, we are talking about a daily allocation of resources from the relevant law enforcement agencies (the police and the military prosecution) for a period of 307 working days, including 140 consecutive working days on the part of the military prosecution.”
Lieberman: “The court conducted an experiment on its own in order to determine how much time is required to check a file solely through the computerized system… On average, the check lasted 20 seconds per file… A file with an indictment for two different offenses can be immediately eliminated. A file that does not contain an indictment for the violation of a military order can be immediately eliminated. A file in which the indictment relates to the offense of illegal entry into Israel can be immediately eliminated. The perusal of the indictment itself would take only a few seconds. Even if we assume that it would take an average of 30 seconds to check a single file and if it is necessary to check all 6,700 files, the total amount of time required would be 3,350 minutes, or less than 60 hours – that is, less than two weeks of work.”
Lieberman allowed the prosecution 45 days to complete the checking process.
A spokesperson for the Israel Defense Forces stated in response: “The file is being handled and managed in accordance with the military prosecution’s policy, which is based on high professional and ethical standards.”
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