In recent years, Israel’s military court system has been the subject of well-deserved – and long over-due – scrutiny, thanks to its almost 100 percent conviction rate of Palestinians in the West Bank. The military courts are a key part of an apartheid regime that sees Israeli settlers tried in civilian courts, while Palestinians – including hundreds of children per year – are subjected to military show-trials.
But what about Israel’s civilian courts? Comparatively little attention has been paid by human rights groups to the plight of Palestinians tried for ‘security offenses’ in Israeli courts, which includes Palestinians with Israeli citizenship, and, since the 2005 ‘disengagement’, Gaza residents.
Following Israel’s unilateral withdrawal of settlers, the military regime in Gaza was ended by Israeli army proclamation on September 12, 2005; according to the Israeli government, in a position backed by the Supreme Court, this ended ‘belligerent occupation’ in the Gaza Strip (note that the international community continues to view the Gaza Strip as Israeli-occupied).
Since then, Palestinian residents of Gaza are usually tried in civilian courts, and specifically in Beersheba district court. According to Smadar Ben-Natan, an Israeli lawyer and academic, “the criminal prosecution in Beersheba is very aggressive about these cases.”
In fact, Ben-Natan told me, it is her impression “that punishments are even harsher than what they were in the military courts in Erez. Palestinians from Gaza get really outrageous sentences, of many, many years, even for relatively not-so-serious offenses.”
When I asked why, Ben-Natan suggested that “district court judges tend to exaggerate the level of importance or danger attached to these cases. They are very influenced by the security service, and not critical of it.” In addition, she continued, “the whole atmosphere in Israel towards Gaza, whereby Gaza is considered an enemy territory, also effects the court.”
Israel’s civilian courts certainly offer more by way of internationally-recognised standards of due process than the widely-panned military courts in the West Bank (though note that the judges and prosecutors in the civilian courts can do their reserve duty in the military ones).
That is not to say, however, that Israel’s justice system is ‘blind’ when it comes to Palestinians and the interests of the state and its security service. According to the Haifa-based Mossawa Centre, “Israeli courts are prejudiced against Palestinian citizens of Israel”, as demonstrated “by the duration of sentences, incarceration levels and degree of charges brought against Palestinians, for example.”
This is nothing new: a 2001 report by Amnesty International similarly noted that “prejudice against Palestinian citizens…is widespread in the Israeli criminal justice system”, and cited a study by two Israeli academics who found that “Palestinians, whether Israeli citizens or not, are more likely than Jews to be charged after arrest, sentenced to terms of imprisonment, and given harsh sentences.”
Last December, Israel re-extended a 2006 law that “removes a number of essential procedural safeguards to detainees suspected of security offenses that are provided to criminal suspects.” For example, the order “allows security suspects to be denied access to a lawyer for up to 21 days, versus 48 hours in other cases.”
In addition, “the order allows for the detention of a security suspect for up to 96 hours before being brought before judge, versus 48 hours in other cases, and for up to 35 days without being indicted, versus 30 days in other cases.”
Commenting on the measure, Adalah, the The Legal Center for Arab Minority Rights in Israel, stated: “While neutral on its face, in practice the law is used almost exclusively against Palestinians, who make up the overwhelming majority of detainees classified as ‘security’ detainees.”
In the words of a 2007 report by Palestinian prisoners’ rights group Addameer, “the Israeli laws governing the treatment of prisoners accused of ‘threatening security’ create…challenges for lawyers”, including laws “that diminish due process protection under Israeli civil law afforded to defendants accused of being security threats.”
Jamil Dakwar, currently Director of the American Civil Liberties Union’s Human Rights Program and formerly an Israeli attorney focusing on human rights cases, spoke to me about these wider issues.
“Experience shows that when it comes to ‘security offenses’, Israeli civilian courts act as national security courts”, he told me. “For example, they tend to defer in almost every case to the prosecutor when it comes to admitting secret evidence. In addition, it is hard to challenge any due process violations, including torture and abusive treatment prior to the trial.”
In May, the UN Committee Against Torture expressed concerns regarding Israel’s use of torture, including “instances in which coerced evidence was used in courts.” Amnesty International’s report for 2015-16 says that the Israel Security Agency (ISA, or Shin Bet) personnel “tortured and otherwise ill-treated Palestinian detainees…particularly during arrest and interrogation.”
According to Dakwar, it is extremely difficult for Israeli lawyers to challenge evidence and ‘confessions’ obtained under duress or through torture.
“We know that torture practices continue to be used, albeit more curtailed since 1999, and under the supervision of the Attorney General’s Office. But the documentation that would prove the authorisation of abusive interrogation techniques is rarely released to the defendant’s lawyers.”
In Ben-Natan’s view, it is “almost impossible” that a judge would acquit a defendant facing an ISA indictment. “The main point is that the defendant’s rights were violated during interrogation – that’s the key point. Their rights are violated before it reaches court, and the courts don’t address this.”
After the recent indictment of World Vision employee Mohammad el Halabi, senior UN official Robert Piper stressed the need for “a fair trial”, and a legal process that is “prompt, thorough, independent, impartial and transparent.” In a Shin Bet state, however, that seems like a tall order.
The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Middle East Monitor.