Opinion

Separate and Unequal: Inside Israel's Military Courts, Where the Only Defendants Are Palestinians

The UN says Israel's West Bank justice system, which tries Palestinians exclusively and has reported an almost 100% conviction rate, violates international law. This is what I saw.

A complete justice system that tries only Palestinians: Waiting outside Ofer military prison to visit relatives, December 2008.
Tomer Neuberg

We took off our shoes and belts and put them on the conveyor belt as we went through the final security check at Ofer Prison in the occupied West Bank. The military officer behind the bulletproof glass tucked our passports away into his jacket as we walked through security. We had already stored our belongings in lockers outside, and it was clear despite the language barrier that we wouldn’t be getting our passports back until we left the facility.

It was June 2016, and the path to the small courthouses was enclosed by a metal fence topped with barbed wire. We walked through quickly to escape the 90 degree heat and waited in a lounge designed for family members and friends of the accused. A small kiosk sold pastries and candy.

The trials themselves take place in glammed-up trailers, where military and court officials come and go, answering phones, high-fiving and greeting one another. It might have been out of place in many court rooms, but this was Israel’s military court system, a complete justice system that tries only Palestinians, and in 2010 self-reported a 99.74% conviction rate. Israeli settlers, even when committing a crime in the West Bank, are tried in civilian courts.

Ofer prison
AP

In military courts, different rules apply

Israel’s military courts differ notably from their civilian counterparts, including the types of acts considered offenses, and the lengths of punishment for an infraction. In military courts, “certain forms of political and cultural expression, association, movement and nonviolent protest, even certain traffic offenses” can be considered crimes, according to Lisa Hajjar in her Courting Conflict: The Isrli Military Court System in the West Bank and Gaza. 

Under the Israeli penal code, individuals can apply for probation after serving half of their sentence. In the military courts, Palestinians must serve two-thirds of their sentence before applying. Israel has also passed laws allowing Palestinians to be held for 180 days without charges, renewable indefinitely. Over 700 Palestinians are being held without charges or trial, what a UN representative calls an “eight-year high”. 

Israel is also one of the few countries that allows children to be held under administrative detention. In the military courts, the age of majority is 16, allowing teenagers to be tried as adults, while 18 is the age of majority in Israel. Children in Israel are questioned only by specially trained officers, while in the military courts, officers or members of the Shin Bet security service interrogate minors.

When a court has a nearly perfect success rate in prosecuting only one ethnic group, it should not have been surprising that the court officials treated their work so casually.

A lawyer conferring with a Palestinian prisoner, July 2014.
Olivier Fitoussi

Economic desperation

The first case was the trial of an economic migrant from the West Bank who had entered Israel for work. It was unclear exactly what part of Israel’s claimed territory he had entered. East Jerusalem, for example, is a territory internationally recognized as part of Palestine, but considered by Israel to be its own. “Borders are borders,” said the judge in his New Jersey accent. This was the man’s second offense. He received two months in jail and a fine of ILS2000 ($523).

In 2012, Palestine’s GDP per capita was $2,960, down from $2,992 in 2013. Unemployment, in large part due to the continued Israeli occupation, is 27%.

My mind buzzed as the defendant left the courtroom in handcuffs. This man had entered a territory that was possibly part of his own country, to make money because of the struggling economy where he lives. He was fined about 17.7% of his expected annual income, if he is even able to find work in the West Bank. Taking for granted that he has no other expenses (rent, food, etc.), it would take him 65 days to pay off this fine. The equivalent fee for an individual in the United States would be $9,882 (Based on the most recent data from the World Bank, estimating a U.S. GDP per capita of $55,836.)

I couldn’t help but wonder if he committed the second offense to pay off the fine for the first.

Ofer prison
Oren Ziv

A defendant on a stretcher out in the sun

The second defendant was unable to enter the court. She had been shot in an altercation with the Israeli Defense Forces and laid outside the trailer on a stretcher in the sun, with an Israeli translator yelling out to her in Arabic from the courtroom. When one of us inquired how long it took for cases to reach the court room, the judge told us that the process was similar to U.S. ones: arraignment happens within the first few days, with the trial taking place over the next several months. It was unclear for how long this woman had been hospitalized following the event.  

The judge granted the woman a continuance, noting that he likes to give defendants every chance to make a case for themselves. It does indeed seem important: as a defendant you must vie to be one of the lucky 2.6 people in every 1,000 that aren’t convicted.

The third defendant was freed in the 2011 prisoner exchange orchestrated between Hamas and the Israeli government. The exchange set free 1,027 Palestinian political prisoners in exchange for one Israeli soldier.

This released prisoner had been rearrested, though due to our lack of a translator, it was unclear based on what charge. The event in question was apparently an illegal assembly, defined as a group of more than 10 Palestinians. The court made clear that they wished to force him to serve his original sentence in addition to the one for the present charge. His release in 2011, then, was not amnesty, but simply a small delay in him serving his time.

Among the days’ other cases was a journalist who was arrested for making a Facebook comment on another arrested Palestinian’s mugshot: “your smile will end the occupation.”  

ICRC convoy
ASSOCIATED PRESS

Just another day in 50 years of Israel's military courts

For us as visitors, it seemed like quite a dramatic day in Israel’s military court system. In reality, however, this was just an average day in the 50-year life of Israel’s military courts. Since Israel conquered the West Bank, Gaza, and East Jerusalem in 1967, it has sentenced hundreds of thousands of Palestinians in its military courts. Al Monitor reports that up to 20% of Palestinians have at one point been detained in the military justice system. 

Though many Palestinians see it as a sham court, Israel keeps these courts running in attempt to legitimize its presence in the Palestinian Territories. The UN has repeatedly stated that the court acts in violation of international law. Military courts often lack the impartiality of civilian trials as the judge, prosecutor and translators are all members of the armed forces, rather than independent professionals hired by the state.

Despite the criticism, Israel defends its system on the basis of self-defense. But as Susan Abulhawa stated in her novel ‘Mornings in Jenin’, “For if life had taught her anything, it was that healing and peace can begin only with acknowledgment of wrongs committed.” 

Meredith McBride reported on tax policy and human rights in Asia and is now pursuing her Juris Doctor at Fordham University School of Law in New York City. Follow her on Twitter: @MeredithJamie