Maureen Weston (Pepperdine) provides this intriguing post from the Ofer military base in Israel.

The conflict over the sacred land in the West Bank, which includes East Jerusalem, in Israel is deeply rooted and profoundly intense.  This region has been under rule by the Turks in the Ottoman Empire (1517- 1917), Britain (1917-48), Jordan (1948-67), and since the Six Day War in 1967, under control by the Israeli army.  Israel regards Jerusalem as its eternal capital.  Palestinians contend this area is rightly part of an independent Palestinian state.  While the process to reach an Israeli-Palestinian peace agreement is stalled, both Jewish (approximately 500,000 settlers) and Palestinian communities live in the West Bank.   Both populations appear to consider these territories “occupied” by the other, thus describing these territories as “occupied” depends upon the perspective.  Since 1967, Israel has controlled the West Bank area and has assumed military administration of this area in which approximately 2.6 million Palestinians reside.  The Jewish settlers in the West Bank have access to the Israeli civilian court system; however what happens when a Palestinian (adult or youth) commits or is accused of committing a crime or an act of terror within this territory?  What legal authority and system adjudicates criminal cases in the West Bank?  What rights does the accused have in this system?

The Academic Partners for Peace Dispute Resolution Law tour in Israel included a site visit to the Military Courts at the Israeli Defense Forces (IDF) Ofer base.   We met with the current President of the Judean Military Court, Lt. Colonel Menachem Lieberman.  Lt. Colonel Lieberman was born in New York, moved to Israel after high school, studied law in Israel, and has been a judge on the military court for over two decades.  Judge Lieberman briefed us on the Israeli Military Court system of Judea and Samaria, which is a criminal court that adjudicates only matters involving alleged crimes in the West Bank.   Cases involving Israeli soldiers or civil matters are not heard in these courts.   As a practical matter, a civil court system to adjudicate disputes between Israelis and Palestinians is essentially non-existent since Israeli courts don’t have jurisdiction over civil disputes involving Palestinians in the West Bank and it is unlikely that Israeli’s will sue in Palestinian courts.

As evident in the recent United Nations General Assembly vote rejecting U.S.  President Trump’s decision to recognize Jerusalem as Israel’s capital, the U.N. has not recognized the legitimacy of  Israel’s annexation of the West Bank and regards such presence as belligerent occupation within Occupied Palestinian Territories (OPT) subject to international law. The legal foundation of the Military Court is based upon Article 43 of the Hague Convention:

“The authority of the legitimate power having passed in fact into the hands of the occupied, the latter shall take all measures in his power, to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented , the laws of force in the country.”

By Art. 66 Geneva Convention IRC 1958, the Israeli Military Court hears only criminal matters involving people in the occupied areas.  The Military Court is thus obliged to apply and implement the rule of law in force in Israel in trying those accused of perpetrating security or other criminal offenses.    While having no written constitution, Israeli Basic Laws, which include rights to human dignity and liberty, are fully applied. 

The Military Court is governed by largely similar procedural, substantive law, and evidentiary principles as the Israeli legal system, with certain distinctions.   In regard to the principle of judicial independence, judges have a lifetime appointment, are subject only to the authority of the law, and appointed by a committee of four judges, two generals, and members of the Israeli bar.  Although they are members of the military, military officers do not interfere with or influence military judicial decision-making.   Fifteen judges serve on this Military Court.   Prosecutors are also members of the military and, as in civilian matters, have discretion as to charges and plea bargaining.   The accused have a right to defense counsel, who are civilian (Arab or Jewish), and may be appointed by the President of the court if the defendant does not hire an attorney.   A large majority of the cases are resolved via plea bargaining  (“we could not survive without it”).  Judges are not formally involved in the plea negotiation process and, as is common in criminal justice systems in Israel and in the United States, formal mediation is not part of the process.  

Key distinctions in the military court procedural process of note are that the accused has a right to counsel during the investigation phase and at trial, but not during interrogation (where confessions may be obtained).   Under these procedures, the court may presume an adverse inference by the defendant’s silence, as opposed to the U.S. “right to remain silent” (as happens in some other countries).  A defendant has a right to receive all relevant evidence, which may not include security-related information.   Judicial hearings are in open court (on the military base), and our group was permitted to observe a hearing in progress.  We also noted the large crowd of Palestinian family members in a fenced area on the base who were waiting to sit in on a court session.  In the hearing we observed, the father of an accused was permitted to speak to the court.  The court we observed was  rather cramped modular, with a court reporter sitting next to the judge, and a translator, counsel, and defendants in a side box.  There is no jury in the military court, or in civilian courts in Israel.  The average time until  trial is five to seven months  within  indictment.

A separate Juvenile Military division was set up in 2009.  The minimum age for criminal liability is twelve, and defendants younger than 14 face a maximum penalty of six months in prison.    Lieberman noted the problem of the use of children by terror organizations.  Unfortunately, there are no diversion or alternative sentencing options, so if Palestinian juveniles are convicted, they are sentenced to time in jail (unlike the options available to juvenile defendants within the Green Line in Israel).  Although Judge Lieberman said he was open to alternatives  and would welcome any projects directed towards alternatives to incarceration especially as he will soon take over the leadership of the  Juvenile Court.   He recalled one case in which Palestinian Juvenile boys said that they were bored and thinking about what to do and decided to throw stones.  As Lt. Colonel Lieberman noted, maybe if they had a soccer ball and a field in which to play, they would have done that instead.  So perhaps Soccer instead of Stones?

 The types of cases heard in the Israeli Military Court involve “disturbances of public order,” traffic accidents, border offenses, and acts of terror.  Approximately twenty-five percent  of the cases are terror-related.  Judge Lieberman recounted several terror attacks which resulted in deaths, which spiked to 452 in 2002 during the Second Intifada.   Since then the numbers have decreased, but, he noted that the number of arrests have increased dramatically since President Trump’s announcement to move the U.S. Embassy to Jerusalem, citing 117 arraignments in the day after the announcement.  Such cases continue to rise as the peace process has seemingly stalled and the U.N. denounced the U.S. declaration. 

I was struck by what a difficult situation it is to run a justice system that is not, and should not be, a permanent institution, when it has, in reality, lasted several generations (so far).  Even the physical space is clearly not permanent—the court rooms are essentially mobile units that can be easily taken apart and moved away.  The military has not built a courthouse. 

Overall, the situation is extremely challenging. A military court can never be as open as a civilian court.  For example, although the hearings are technically open, the additional layers of security (and obstacles) limit family and friends from easily attending court hearings.  But, there are efforts to allow some level of openness, including by receiving visiting delegations like our own.  The military tribunals in Israel are not so removed from civilian practice, as many of the judges and prosecutors are reservists who practice in Israel when they are not doing their reserve army service. 

We were not able to take pictures of our site visit to the Olfer Military Base, but the lessons and concerns remain vivid.

Art Hinshaw is a Clinical Professor of Law and the Director of the Lodestar Dispute Resolution Program at ASU Sandra Day O'Conner College of Law. His research and teaching interests focus primarily on mediation and negotiation, often bridging ADR theory and practice. He is an avid writer and contributor to ADR Prof Blog.