Analyst discusses critiques, reforms of Israeli military courts
Yonah Jeremy Bob, a legal analyst who covers intelligence and terrorism for the Jerusalem Post, spoke to the Brandeis community on Thursday about how reforming Israel’s military courts in the West Bank can help make trials fairer for accused Palestinians. In his lecture, Bob also explained why Israel has military courts in the West Bank and described criticism those military courts face. The event was co-sponsored by Hillel at Brandeis and the Schusterman Center for Israel Studies.
Israeli military courts in the West Bank try Palestinians who have been accused of crimes by Israel. Bob explained that these courts usually don’t get involved in crimes that Palestinians commit against each other. Rather, they most often try Palestinians for crimes they are accused of committing against Israelis.
Bob began by explaining that according to “international law, there is nothing wrong with Israel managing the West Bank. … Article 66 [of the Fourth Geneva Convention] says that you have the right to establish military courts to deal with criminal issues that come out from occupied persons and can bring them to trial if necessary.” Bob explained that Article 64 of the Geneva Convention dictates that in areas of occupation, “You have to continue to apply prior laws that existed, which Israel did.”
Certain aspects of Jordanian law also apply in West Bank courts, because Jordan “was running the area beforehand,” Bob explained. He added that Israeli law has sometimes replaced Jordanian law to “take into account the best interest of the occupied people,” which is significant because sometimes Israeli criminal law is “more liberal” than Jordanian law. For example, Jordanian law allows the state to sentence people to “[manual] labor as part of their prison sentence,” but Israel “got rid of that piece of Jordanian law,” Bob said.
Criminal sentences also depend on the severity of the crime. The three main cases that these military courts encounter involve terrorism, illegal border crossings and rock throwing.
Israel faces “more security threats [and] more terror threats than pretty much any other country in the world,” Bob said. He said that according to the head of the Shin Bet, the Israel Security Agency, there have been 480 thwarted terrorist attacks and 26 successful terrorist attacks that resulted in Israelis being “killed or injured violently” in 2018. These numbers do not include rockets shot from Gaza into Israel, according to Bob.
He told the story of Ezra Schwartz, a Jewish American teenager from the Boston area who was killed while studying in Israel for a year. “He wasn’t involved in the Israeli Army. He was just a bystander. Somebody shot him because they figured out he was Jewish, and they wanted to kill someone Jewish,” Bob said, adding that Ari Fuld is another example of an American Jew killed in Israel by a Palestinian. “Most people would understand [that] if somebody commits murder, or attempted murder, [then] somebody should bring them to trial,” he said.
Another situation that military courts often deal with involves illegal border crossings, where Palestinians without Israeli citizenshipcross the West Bank border. Bob noted that “most of the time” Palestinians do not cross the border “to do anything bad.” He explained that the immigrants are usually making less money in the Palestinian areas than if they worked illegally in Israel. Most of these people don’t get caught, according to Bob, but those who do are tried in these military courts.
The final category of crimes that these courts often prosecute is rock throwing, which Bob described as “the category [of crime] where there is a lot of political controversy.” Such crimes are dealt with on a case-by-case basis. “If a 10 year old throws a rock at an Israeli soldier standing two hundred feet away, no one’s going to arrest them,” Bob said. However, he pointed to situations in which rock throwing can be “violent,” “dangerous” and even fatal. He referenced “an 18 year old standing on top of a roof with a rock slab” that he threw down onto an Israeli special forces unit, killing a member of the unit. This has led to controversy over whether the act of rock-throwing should be viewed as political protest or as violence.
There is also controversy around administrative detention, a non-standard method in which prosecutors do not follow “regular criminal law.” In some cases, people are kept in detention for extended periods of time without a “regular” trial, according to Bob. While Bob said that critics of Israel call this a “kangaroo court” system, he also explained that Israel is allowed to institute administrative detention in “very specific instances” under Article 78 of the Fourth Geneva Convention. Such instances include “imperative reasons of security,” but he said that there is much debate about what should be included in this definition.
Bob explained that “an arch-terrorist … can obviously [be put] in administrative detention” to “keep them off the streets and prevent them from doing terror.” Such criminals “do go before a judge … every six months,” he said, adding that “concrete” evidence has to show that the accused is a terrorist. Bob did not say whether the Israeli military court steps outside the limits of who can be placed under administrative detention.
In light of these controversies, Israel has begun to discuss methods of reforming the West Bank’s military court system. One of the main advocates of administrative detention reform is Liron Libman, the former chief prosecutor of the Israel Defense System, according to Bob. Libman is working with the current chief justice of the West Bank courts to implement reforms. Specifically, they are trying to ensure that accused Palestinians are able to “see the charges [made] against them” during their trial, said Bob. Currently, accused members often see a “paraphrased” version of the charges made against them, which “doesn’t give [the defendant] the same fair chance [and] full due process,” he explained.
Another area of reform involves the language spoken in these courts. The defendants in the system are Palestinians who speak Arabic. “The most fair way to have a system for them would be if all of the proceedings took place in Arabic,” Bob said. Training more lawyers and judges to speak Arabic would be one way to make the court system more fair to the defendants, he argued.