Establishing Rule of Law: Is an Independent Judiciary Possible Within an Occupation?
Israeli military courts are based on the rules of the Geneva Convention. Each court has three judges who are Israeli military officers who have studied law. (For the first three decades of the occupation, only one of the judges was required to have studied law). The prosecutor can be anyone appointed by the military commander, and the defendant may be represented by an attorney of his or her choice. The proceedings take place in Hebrew, but a soldier who can translate the proceedings into Arabic must be present.
The orders for establishing the court include this sentence: "A military court may order the use of procedures that are not designated in this order but are deemed to be the best procedures to achieve justice."
The first Palestinian defendants in the military courts were brought in for offenses such as looting, breaking curfew, possession of arms and defying military orders. But as the occupation continued, the courts began to rule on an expanding set of crimes, ranging from resisting the occupation by political, popular or armed means to defying nature preservation rules or committing traffic violations.
Hundreds of thousands of Palestinians in the Occupied Territories have been prosecuted in the military courts since 1967. According to the United Nations Human Rights Council, more than 150,000 Palestinians were prosecuted between 1990 and 2006.
As mentioned above, the Israeli Supreme Court has heard petitions from Palestinians wishing to appeal the judgments of the military courts. Apart from the issue of land seizures and appropriations, the Supreme Court has also heard arguments regarding many of the military orders issued in the Occupied Territories. Among the issues it has considered are the punitive demolition of homes of Palestinians suspected of harming Israelis, the forced deportations of suspected resistance leaders, the restrictions on Palestinians' freedom of movement within the territories and the practice of "targeted killings"--the summary execution of suspected militants.
In practice, the Israeli Supreme Court has rarely opposed or struck down actions taken by military in the occupied area. Even when the court has opposed the actions of the military occupation, it has often issued narrow rulings, or simply urged restraint. As a result, some consider the court to be unfairly biased toward the priorities of the occupying forces over the rights of the Palestinian residents of the Occupied Territories. It is widely accepted, however, that in those instances when the court has chosen to intervene, it has curbed the powers of the occupation.
In the film, filmmaker Ra'anan Alexandrowicz reads Meir Shamgar an assertion from an Israeli legal scholar at Hebrew University that states that the court's judicial review of the occupation authorities gave the occupation itself a measure of legitimacy in the eyes of the Israeli public that it might not otherwise have enjoyed--a characterization that Shamgar rejects.
Sources:
» International Committee of the Red Cross. "Annex to the Convention."
» International Committee of the Red Cross. "Occupation and International Humanitarian Law: Questions and Answers."
» Kretzmer, David. The Occupation of Justice. Albany: State University of New York Press, 2002.
» United Nations. "Report of the Special Rapporteur on Independence of Judges and Lawyers."
» Weill, Sharon. "The Judicial Arm of the Occupation: the Israeli Military Courts in the Occupied Territories." International Review of the Red Cross, ol. 89, No. 866 (June 2007).
» Yesh Din. "Military Courts."