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The Rulings of the Israeli Military Courts and International Law

The Rulings of the Israeli Military Courts and International Law Abstract International humanitarian law (IHL) provides the occupying power extensive legal tools in order to allow it to control and govern the local occupied population, with the possibility of establishing a military law system being one of the most influential. The military law system gives the Military Commander of the occupied area an immense power as a potential legislator and judicial authority, but what happens when this legal system encounters the limitations placed by IHL in general and Occupation Law in particular? To examine this question, this article will present the case of the Israeli Military Court system in the Palestinian Occupied Territories and its use, abuse and misuse of international law norms. Based on the 5565 published rulings of the Military Court of Appeals, this research identifies all of the cases that refer to international law. This article suggests that the evolving approaches of the courts to international law are, in fact, a tool to justify and advance Israeli interests over the rights of the Palestinian defendants. Moreover, the article presents the potential impact these rulings have on the law in Palestine, the law in Israel and customary international law. 1. Introduction When a foreign citizen wishes to coordinate a visit to the Israeli Military Courts in the Occupied Palestinian Territories (OPTs) in the West Bank, they are handed an official pamphlet in English that starts with the statement: ‘The Military Courts in Judea & Samaria were established according to International Law.”1 Later, the pamphlet identifies Article 66 of the Fourth Geneva Convention2 as the legal source of its operation. This research examines precisely this point, asking how the Military Court’s identification of its jurisdiction as being derived from IHL impacts its rulings in terms of international law? To that end, this article analyzes the following parameters in the rulings of the Israeli Military Court of Appeals that refer to international law, asking the following. (i) How often does the Military Court of Appeals refer to international law and to what kind of law? (ii) In what kind of cases does the Court choose to refer to international law and why? (iii) What is the general approach by the Court when it comes to international law? (iv) Finally, what is the impact of these decisions on the law in the OPTs and on international law in general? The research data are based on the 5565 rulings that the Military Court of Appeals has published since it was founded in 1989.3 Using a Hebrew text analysis program, the research looked for cases where the following words appear at least once in Hebrew or in English4: ‘international law’, ‘law of war’, ‘IHL’, ‘convention’, ‘Human Rights Law’, ‘Geneva’, ‘Hague’, ‘ICJ’, ‘ICC’, ‘ICTY’, ‘ICTR’ and ‘ICCPR’. The results of this study show that, although the court’s jurisdiction is derived from international law, the court does not often use international law in its rulings (apparent in less than 2% of all cases).5 International law is used in a very superficial way and usually only when referring to an article or articles from the Geneva Conventions. The court switches between different approaches with regard to international law in order to achieve the desired result that is almost always tailored to favor Israeli interests over the rights of the Palestinian defendants. These rulings have the dangerous potential to impact the law in the occupied territories, in Israel and even in international customary law. This article proceeds in three parts. The first part presents a brief analysis of the legal mechanism that allows the occupier to legislate and to establish Military Courts in the Occupied Territories, background information on the Israeli Military Law and Courts and a literature review on the relevant academic writings on the Israeli Military Courts. The second part presents the general findings of the research by dividing the rulings according to their type (criminal/administrative), the kind of international norm being referred to (international conventions, international jurisprudence, scholars), the results of the cases (for the military authorities or for the defendants), the sides in the case (Military, Palestinians, Settlers) and the approach that was taken by the court regarding international law (Apologetic, Avoiding, Limiting, Utopic). The concluding part will examine the possible reasons for the Military Court of Appeals’ multifaceted approach to international law and presents the additional effects these rulings may have on the law in the OPTs, on the Israeli legal system and on the advancement of international law. 2. The Legislative and Judicial Powers of the Occupier under IHL One of the most important duties of the occupier under IHL is to ensure public order and safety while following the law that was in force prior to the occupation. Article 64(1) of the 4th Geneva Convention details two conditions under which the occupier can change the local legislation: if local law is a threat to security, or if it is an obstacle to the application of the Convention. The term in the article ‘unless absolutely prevented’, also appears in Article 43 of The Hague Regulations6 regarding penal legislation.7 Article 64(2) of the 4th Geneva Convention sets out three conditions under which such legislation is authorized: for the application of the Convention, to maintain order and for the occupying power’s own safety. However, this authority may be exercised only when it is essential for achieving one or more of these conditions. The general rule regarding the legislative capacities of the occupier is that, although it has very extensive authority to legislate, that legislation cannot, by any means, become an oppressing power to be used against the population.8 The authority to establish courts can be found in Article 66 of the 4th Geneva Convention that lists three requirements for the functioning of military courts: they must be properly constituted, must be nonpolitical and located in the occupied territories. The definition by Article 66 of ‘properly constituted, non-political military courts’ is, of course, very limited but Articles 71–74 of the 4th Geneva Convention give a more detailed description on the protection and the rights that the protected person accused in those courts is entitled to. Another important source of rights for the accused in military courts can be found in human rights treaties such as the International Covenant on Civil and Political Rights.9 3. History of Israeli Military Law and Courts On 7 June 1967, the second day of the Six Days War between Israel and the armies of Egypt, Jordan and Syria, in the areas that were already taken by the Israeli army from the neighboring countries, the Israeli army published and distributed a 27-page booklet in Hebrew and Arabic. This booklet contained the foundations for Israeli Military Law and its Courts.10 The booklet was a collection of proclamations and military orders stating that the army was now in control of the area and was in charge of all aspects of life. The law that applied in the land prior to occupation remained in place, however, the Military Commander of the area could now issue new laws to maintain order. The first new law that was written in the booklet was the ‘Order Regarding Security Provisions’11 which established the Military Courts, defined the ways in which they operate and created a line of new felonies. This booklet formed the basis of what would become, over the years, a complex and massive operation that has influenced the lives of thousands of Palestinians in the OPTs. In the 50 years that have passed since then, hundreds of Military Orders12 (the Military Commander legislation) have been issued by the ever-changing Military Commanders, covering almost all areas of life in the OPTs. A significant part of the legislation was dedicated to the establishment of the Military Courts and their duties and the creation of new penal provisions mostly through the constant amending of the Order Regarding Security Provisions. The Courts themselves have changed and evolved throughout those years. In 2007, it was estimated that at least 800000 Palestinians, out of a population of 3200000,13 have passed through Israeli Military Courts since 1967. In the first 20 years of the courts’ activity, most of the important decisions regarding the legality of aspects of the legal activities of the military in the OPTs were brought in the form of a petition to the High Court of Justice (HCJ) in the Israeli Supreme Court.14 International and internal criticism of the courts’ activity during the First Intifada15 together with the increased number of cases reaching the Israeli Supreme Court led to the establishment of a Military Court of Appeals in 1989.16 Since the establishment of the Military Court of Appeals, the Israeli Supreme Court has limited its intervention in the courts’ activity, mainly to cases of administrative detentions.17 Until 2002, panels of three military judges included, besides the ‘Presiding Judge’ who was a judge with a legal education (a ‘jurist judge’), two lay judges who were IDF officers from various units, devoid of any legal training. Since 2002, only jurist judges have been allowed to preside as judges in the court. The core judges are approximately 15 professional military judges who sit in the court daily and more than 50 reserve judges who are Israeli lawyers, most of them without any criminal law experience, who are called for service and sit mainly in the remand courts. The court’s geographical jurisdiction has been reduced through the years following a series of agreements and government decisions, first with the return of the Sinai Peninsula to Egypt, the annexation of east Jerusalem and the Golan Heights and then with the Oslo accords and the Gaza withdrawal.18 Although the Courts have technical jurisdiction on the actions of the Israeli settlers in the OPTs, an Israeli policy decision has meant that, since the 1980s, Israeli settlers are brought to justice under Israeli law in the Israeli civil courts inside Israel (Figure 1).19 Figure 1. View largeDownload slide The structure of the Military Courts. Figure 1. View largeDownload slide The structure of the Military Courts. The topic of the Israeli military’s control of the OPTs has been well-researched.20 The writings on the activities and the legality of the Israeli Military Courts have been conducted by three main audiences: military officials, NGOs and academics. The military officials that established the Military Courts, documented their activity in writings. The books by Meir Shamgar,21 the Military Advocate General who established the Military Courts and who was later the President of the Israeli Supreme Court, along with Zvi Hadar’s writings, Shamgar’s predecessor as Military Advocate General,22 tell the story of the establishment of the Military Courts in their early years. Amnon Strashnov, who served as President of the Military Courts during the First Intifada documented the Military Courts’ activity during that time.23 Nethanel Benisho and Zvi Lekach, the current President and Vice President, respectively of the Military Courts, brought some more recent evidence of current developments in the law and the Military Courts.24 These publications, picture stories and information from the people who run the Military Court system present a very narrow Israeli perspective. Palestinian and Israeli NGO’s like Addameer, Al Hak, B’tselem and Yesh Din have been monitoring and documenting the activities of the Military Courts since the First Intifada and have published detailed reports on several aspects of the courts’ activity.25 These reports provide valuable statistics on the activity of the court and its impact on the Palestinian population. From a sociological point of view, research on the Military Courts has been done by Lisa Hajjar who explored the courts’ activity based on the extensive field work she conducted. Her research contains valuable data such as interviews with all the main actors in the courts, from the administrators to lawyers, defendants and their families.26 International law academics have explored the legality of the construction and activities of the courts with regards to IHL and the law of occupation. Weill shows how the Military Courts are expanding and narrowing their jurisdiction to answer specific needs. Cavanaugh describes the courts’ activities and their normative powers. Kretzmer describes the role of the Israeli Supreme Court in acknowledging the jurisdiction of the Military Courts.27 They all present the problematic side of the military legal system, operating in occupied land in a long-term military occupation situation. However, very little attention has been paid to the jurisprudence of the court itself. Exceptions are the works of Vitrebo, who examined the Military Courts’ approach in cases with Palestinian minors28 and Ben-Natan who was critical of the Military Courts’ tendency to adopt norms from the Israeli legal system.29 This research will be a first attempt to examine the whole body of Military Court cases that deal with the application of international law. 4. The Military Court of Appeals’ Rulings on International Law As Benvenisti30 and Weill31 have identified, national courts in different countries have different approaches to the application of international law: the apologist approach, which tries to justify the actions of the state according to international law;32 and the avoiding approach, which claims that international law questions should not be discussed in national courts.33 The first approach is the ‘apologist’ role of the courts. The court uses international law as a tool to legitimize state policy. By analyzing cases from the Israeli High Court of Justice and the Belgrade War Crimes Chamber, Weill shows clear examples of where the courts change their interpretation of international law from case to case in order to provide a legal cover for actions by the state.34 The second approach is the ‘avoiding’ role of the courts. This approach is presented in cases in which the court decides that the question of international law is outside the scope of the court.35 This approach was led by the US and UK Supreme Courts which used the ‘acts of state’ doctrine36 and the ‘political question’ doctrine37 to rule that the ‘international law’ legal question is outside of what a local court should deal with. The third approach refers to the ‘limiting’ role of the courts. According to this approach, the court uses international law in order to limit state actions that the court rules are contradicting international law. This active approach that has been used more and more by courts around the world,38 also has a different side, which is the legitimizing side. The court’s choice to intervene and limit specific actions by the state, by setting the rules for when this specific action is legal, is giving legitimacy to the action itself.39 The fourth approach is best seen as the utopian role of the courts. This asserts that the court uses the power of its rulings on the existing norms of the state by adopting and developing international law norms into the national legal system.40 Weill surveys few examples of this approach41 that is used for specific subjects by specific judges. For the purpose of identifying which of these approaches is more relevant to the rulings of the Military Courts, this research has examined all of the reasoned and published decisions of the Military Court of Appeals in relation to international law.42 The research identified 104 cases that relate to international law out of the 5565 published cases of the Military Court of Appeals since it was founded in 1989. This result shows that less than 2% of all the reasoned cases of the Military Court of Appeals discussed international law per se. Without comparing to other courts, this result carries limited explanatory power. However, it is truly intriguing when we consider that international law is the law that acts as the basis for the constitution of the Military Courts.43 In analyzing the 104 cases dealing with questions of international law, the following questions were posed: (i) What type of legal proceeding was it? (ii) What type of legal question was being raised? (iii) What kind of international law mechanism was the Court referring to: IHL, human rights laws, the jurisprudence of foreign countries, international courts or international law scholars? (iv) Was the appeal won or lost and what was the effect of the Courts’ decisions on the defendants themselves? 5. The General Findings of the Research A. The Type of Cases (Figure 2) As for the type of cases where the Court chooses to refer to international law, the divide is almost half and half between criminal cases and administrative cases. Figure 2. View largeDownload slide Type of cases. Figure 2. View largeDownload slide Type of cases. This almost equal divide between administrative and criminal cases showed an unexpected result in comparison to the usual ratio between these cases in the Military Courts. They are primarily criminal courts while the average case load of administrative cases is only between 5% and 15% of all cases.44 This high representation of administrative cases in the research results could have several possible explanations. The first possible explanation is that, in the Military Courts, accused persons almost never get to finalize their litigation, as more than 98% of the cases end in a plea bargain.45 The nature of administrative cases is that there is no possibility for a plea bargain46 so there are more reasoned decisions and litigation in administrative cases relative to their overall proportion of the total number of court cases. The second possible explanation concerns the types of administrative cases that were gathered for the research. Around 30% of the administrative cases referring to international law concerned new legal mechanisms47 that were introduced by the Military Commander since 2008. Those new legal mechanisms were brought to Court for the first time and therefore, also needed to be examined and interpreted by the Court from the perspective of international law. This wave of administrative legislation and the cases that followed could have contributed to the rise of administrative cases in the research results. A third possible reason for the high percentage of administrative cases in the research may be found in the identity of the sides in the administrative cases dealing with international law. As explained above, the only contact the Military Courts have had with the Israeli settlers since the 1980s is through the Administrative Court in cases relating to land and administrative limitation warrants. A surprising finding of the research is that, out of the 104 cases of the final research, Israeli settler cases (11 cases) made up 10% of all cases and 20% of all administrative cases, while the percentage of all Israeli cases in the Military Courts is less than 0.1% of all cases and less than 1% of administrative cases. The reason for this high representation of Israelis in the cases referring to international law can be found in the fact that the Israeli lawyers representing Israeli defendants tend to question the military authority acting against Israeli citizens and do so by referring to international law arguments. This phenomenon also increases the total number of administrative cases relating to international law. B. The Types of Criminal and Administrative Cases In both groups of cases—criminal or administrative—this research identified different kinds of legal questions referring to international law. The criminal cases could be divided into two categories. The first group are the cases where international law is raised in order to challenge or justify the Court’s jurisdiction on a specific action or person (28 cases). Those cases include questions on the Court’s jurisdiction on actions that were committed in the Palestinian-controlled area or in Israel, or questions on immunity for Palestinian members of parliament or questions on the applicability of a ‘prisoner of war’ status. Second, there are cases where international law is invoked in order to interpret a specific clause in criminal law (23 cases) such as the death penalty, minor rights and due process questions. The administrative cases could also be divided into two categories. The first category includes cases where international law is raised in order to challenge or to approve a warrant that limits the freedom of a person (32 cases), such as an administrative arrest, revoking a prison release, deportation and movement limitations. The second group of cases contains those where international law is brought up in order to challenge or to approve a warrant that limits rights on property (21 cases) such as expropriation of land or forfeiture of possessions. C. The Type of International Law Mechanisms Mentioned in the Cases (Figure 3) Typically, the Courts have a very superficial and insufficient analysis of international law in their rulings, as found in the research. Most judges settle for referencing the articles of the Geneva Conventions and The Hague Regulations without seeking answers in literature, foreign cases or other conventions. Figure 3. View largeDownload slide International law references. Figure 3. View largeDownload slide International law references. It is noteworthy that 90% of all references to other conventions, international scholars’ opinions and international case law were generated by only two judges, the residing and the former presidents of the Military Court of Appeals. The choice of most of the judges at the Military Court of Appeals to settle for a basic analysis of international law should also be examined in relation to other legal system references found in those rulings outside of the main military codex. The local law in the OPTs prior to the occupation, Ottoman, Jordanian and British mandate law, is mentioned in 25 of the cases. On the other hand, in all 104 cases examined in the research, there are extensive references to Israeli Civil Law and Israeli Court Case Law which do not directly apply in the Courts. Furthermore, in 22 of the cases, there are also references to Jewish Religious Law (Halacha).48 These findings indicate that most of the judges in the Military Courts are more comfortable in conducting a legal discourse through the legal system of their education (Israeli law) than through the actual legal system that applies in the Court, based on international law and local law. The decision to examine a legal question based on international law via Israeli law is, in the writer’s opinion, not only a matter of comfort but could also be a matter of advancing Israeli interests as rightly identified by Ben-Natan.49 D. The Outcome of the Cases (Figure 4) As all 104 cases of the study were from the Military Court of Appeals, the question examined centered on the outcome of the appeal—whether it was won or lost. This outcome was further analyzed through the categorical division of the appellant, the military prosecution or the defendant. Figure 4. View largeDownload slide Outcome of cases. Figure 4. View largeDownload slide Outcome of cases. The results are statistically similar to the general statistics published by the Court of Appeals’ statistical summary,50 and it seems that discussing international law does not have a strong impact on the Court of Appeals’ rulings on whether the appeals coming from the prosecution or the defendants are won or lost. The only noticeable difference between the research findings and the general statistics is that the percentage of defendants’ appeals that were won was slightly higher in the research—17%, compared to 10% in the general statistics. When examining the 18 defendant appeals that were won, this difference can be explained in two possible ways. The first explanation for the relatively high number of cases where the defense won, arises from the high and disproportionate percentage of Jewish Israeli cases. The success rate for Israeli Jewish appellants, seven out of ten, is as high as the prosecution success rate and this has had a clear impact on the results.51 Another explanation can be found in the large amount of cases where the appeal was won but it had little or no effect on the defendants themselves. An example of this kind of ruling can be seen in the Hasin Case.52 In this case, the appellant was arrested in his house and was held for 4 months in administrative detention. During the arrest, the army found a large sum of money which was seized by the military authorities on suspicion of being terror-related funds. After his release, the appellant asked the Court to challenge the forfeiture warrant, and the lower court ruled that the Military Courts have no jurisdiction to examine the forfeiture warrant. The appellant appealed against this decision to the Appeals Court that accepted the appeal and sided with the applicant’s main argument, that the Court should have jurisdiction to examine the forfeiture warrant. Later, the Court ruled that, although it has jurisdiction, and after examining the specific circumstances of the case, there was no justification for overruling the forfeiture warrant and returning the money to the appellant. Out of the eight cases where the court found for the defense but the decision had little or no effect on the defendants themselves, five were of a similar nature to the Hasin case ie cases where the Court accepted the main legal argument of the defense about the Court’s jurisdiction, but the outcome had no effect on the defendant’s original claim. The remaining three cases, where the court ruled in favour of the defense but the decision had no effect on the defendants, are criminal cases, where the defendants were partially acquitted of an indictment against them in the Appeals Court following a question of principle relating to criminal law, but the Court ruled that there should not be any change in the actual punishment against them following the acquittal. In this way, because the cases where international law is discussed by the Court tend to be cases featuring important principles, it is easier for the Court to accept the general claim without interfering in the outcome of the case (Figure 5). Figure 5. View largeDownload slide Defendant’ appeals accepted. Figure 5. View largeDownload slide Defendant’ appeals accepted. 6. The Approaches of the Military Court Regarding International Law This research divided the 104 cases according to their approach to international law as identified by Weill53: the apologist, the avoiding, the limiting and the utopian approach (Figure 6). Figure 6. View largeDownload slide Approaches to international law. Figure 6. View largeDownload slide Approaches to international law. The results clearly indicate that the apologetic approach, which tends to justify the actions of the Military Commander under international law is, by far, the most common practice used by the Military Courts. This is not surprising as this is also found to be the most common approach in the Israeli Supreme Court, which sets the tone in the Israeli legal system. What is surprising, though, is that the Court also uses all of the other approaches to international law. When trying to find an explanation for this discrepancy through a correlation between a specific approach and a specific judge or bench, it does not yield any clear answers, as different approaches were taken by the same judges and benches.54 However, this research has found that understanding the use of the different approaches in each case is the key to the desired result. The fact that, out of the 104 cases that were examined, only three rulings were in favor of a Palestinian, in such a way that it actually had a real impact,55 shows a very clear pattern of a pro-prosecution court. The only cases where the prosecution pleas were rejected were cases where the prosecution tried to question the jurisdiction of the court,56 or when the other side represented a different Israeli interest than the prosecution.57 Examining the cases through this perspective, shows that the Court used the ‘most convenient to justify’ approach to international law in order to achieve the desired result.58 If this result could be reached by a very conservative, or plainly wrong, interpretation of international law norms, then the apologist approach was used. The avoiding approach was used if the required result could be reached only by ignoring the application of international law on the situation.59 If the argument is that the Military Commander has restricted the authority of the courts, they will prefer to use international law to limit the power of the Military Commander with the limiting approach.60 If the desired result could be reached by applying a new international law mechanism, then the utopian approach was used. International law, for the Military Courts, is just an obstacle, or a tool, to satisfy the needs of the court and Israeli interests. This approach can be explained not only through the eyes of Weill’s Apologist Court Theory but also through Luban’s ‘necessity approach’.61 As Luban identifies, the military legal personnel see their profession and duty as those who provide the legal support for the army’s military necessities, and they perceive international humanitarian law as the tool that allows the army to function, in conflict with legal protection and not as human rights lawyers and, as most academics perceive it, as a tool to defend the civilian population in times of conflict.62 In the case of the Israeli military courts, it is important to remember that all the judges are Israeli army officers, so the necessity approach could fit their tendency to rule in favor of the military authority’s needs. This biased approach by the courts is not surprising, as previously identified by Shehadeh,63 Hajar,64 Cavanagh,65 Weill66 and Ben-Natan.67 However, there are still two more questions to be answered in this regard. The first is, why does the Court, if it is such a biased Court, bother to write such elaborate rulings regarding international law? The second is, do these decisions have a bigger impact beyond the life of the specific subjects of the case? A. The Military Courts’ Need for Rulings That Reference to International Law Most of the decisions made by the Military Court of Appeals that were used for this study were long and elaborate and some of the legal discussions in these decisions are thorough and extensive. In her study, Hajar68 indicates that Palestinian lawyers and clients69 have no faith or trust in the Military Courts system, so it is obvious that the Courts’ clients are not the target for these writings. So to whom do they address their legal reasoning and why? One simple answer could be that it is part of the Israeli military’s involvement in Israeli foreign policy and public relations70 to justify the legality of its actions in the OPTs. As described above, the Military Courts have been criticized by academics and international NGOs. Presenting a well-discussed legal argument in a ruling by Military Courts could, prima facie, strengthen the Israel argument that the Courts are run in a professional and non-biased way. A confirmation of this theory can be found in the official pamphlet71 handed out to foreign visitors to the Military Courts that surveys some of the Court’s most important rulings. A just Military Courts system, which is not afraid to seriously tackle important legal questions, can show the world that Israel is doing its best to keep its legal obligations as an occupier. Whilst this explanation gives a probable answer to the question, it is certainly not a full one. If this was the only explanation, then it would have been expected that the Court would put more of an effort into publishing its decisions, while, in practice, the army does not translate the rulings of the Military Courts and access to them is limited. A complementary explanation for the commitment of the Military Court to present extensively-discussed rulings can be found in the sociological theory of institutional Impression Management.72 The term ‘Impression Management’ refers to the process by which individuals attempt to control the impressions of others.73 Schlenker74 defined it as the attempt to control images that are projected in real or imagined social interactions. Impression Management is used when a person or an institute wishes to create and maintain a specific identity. This goal is achieved by intentionally exhibiting certain behaviors that will lead others to view the actors as they want to be viewed.75 Applying this theory to the military judges’ behavior could explain their need for detailed and justifiable rulings. In the 1990s, a liberal discourse swept through the Israeli legal system with the Supreme Court constitutional revolution. The judges of the Military Courts that presided during the relevant years of this research were educated academically and professionally during those years. The clash between these liberal values and the role of a military judge in the Military Courts came to a head with the beginning of the Second Intifada. This is also the exact period when the Military Court of Appeals started to present extended and elaborate rulings.76 Analyzing this phenomenon from the perspective of Impression Management Theory suggests that the judges felt the need to present to their colleagues in the system that, although they serve in the Military Courts, which were highly criticized, they are still part of the legal system they were educated in. Their tactic in writing lengthy and complex justifications in their rulings was Impression Management aimed at the rest of the system. Support for this theory can be found in the judges’ academic writings. The two major articles written by the Military Court of Appeal’s President Benisho77 and Vice President Lekach,78 about the conduct of the Military Courts, presents a pro-human rights approach by the Court. These articles were written in Hebrew and published only in Hebrew Israeli law journals. The readers of these articles are, therefore, the members of the Israeli legal system itself, and just like the rulings, they are part of the judges’ Impression Management attempts to justify the existence of the Military Courts system. B. The Impact of the Rulings on the Lives of the Palestinian Population The most clear and obvious side effect of the rulings of the Military Court of Appeals is their value as precedents. Based on the common law system, the law in the OPTs is continually developing as a result of court decisions, and since the establishment of the Military Court of Appeals, its decisions have been binding on the lower Military Courts that deal with the vast majority of the cases. It is apparent then, that the decisions of the Military Court of Appeals, while using international law justifications, have a significant and intentional impact on all similar cases that raise the same or a similar legal question. The wide impact of these cases is manifested, not so much in other court rulings, but in the decision by the lawyers and clients, based on these rulings, not to try to fight them in court and to go for a plea bargain, which has led to a devastating percentage of convictions in the Military Courts (99.76%).79 C. The Impact on the Israeli Legal System Since the Military Court of Appeals was established, the Israeli Supreme Court has reduced dramatically its judicial review80 of the rulings of the Military Courts stating that: ‘The High Court of Justice does not sit as an instance of appeal to the Military Courts and will not intervene in their decisions, except in exceptional cases in which they acted with a lack of authority or in substantive violation of the rules of natural justice.’81 This limited judicial review by the Israeli Supreme Court allowed the Israeli authorities to test new legal mechanisms that are questionable under international law in the Military Courts. If they managed to pass the Military Courts and then the limited judicial review by the Israeli Supreme Court, this allowed them to adopt these to the internal laws of Israel. The proposition by the Israeli authorities is that the Supreme Court will find it difficult to rule against a legal mechanism used in Israel after it was approved to be used in the OPTs. A clear example of this method can be demonstrated by examining the legal route that allowed the re-arresting of people who were released in the ‘Gilad Shalit Deal’.82 The first stage was to amend military law so that it would allow a committee of Military Court judges to rule that the ex-prisoner had violated the terms of his release and to return him to prison for the rest of his remaining sentence, based solely on secret evidence, presented ex parte.83 The second stage was to persuade the Military Court of Appeals that this amendment is legal, although it contradicts many principles of due process that are protected by international law.84 The third stage was to remind the Israeli Supreme Court that it has limited judicial review over the Military Court of Appeals.85 The fourth stage was adopting the military legislation into Israeli legislation.86 By using the flexible approaches of the Military Court of Appeals to international law, and the Israeli Supreme Court’s limited supervision over it, the Israeli authorities managed to import to the Israeli legal system a mechanism that directly contradicts the principles of due process.87 D. The Impact on the Advancement of International Law To understand the impact of the rulings of the Israeli Military Court of Appeals on international law, one should first address the impact of the Israeli occupation on international law in general. The long and continuous Israeli occupation of the OPTs has, as Dinstein says ‘a critical significance’88 to the understanding of belligerent occupation, due to the fact that ‘the practical experience acquired has been of incalculable value in assessing the interface between the theory and practice of belligerent occupation.’89 Ben Naftali,90 with a more critical approach, concurs with the potential impact of the Israeli occupation, claiming that ‘a careful scrutiny of the experiments carried out in Israel laboratories may well generate lessons that are relevant to other situations, and indeed to the course of the development of international law.’91 The importance of the Israeli occupation to the law of occupation is so significant that, as Sassoli defines it, it ‘overshadows’92 the whole discussion on occupation: ‘this case (the Israeli occupation) has attracted the most international and domestic jurisprudence, scholarly writing and practice of states and international organizations’.93 Vitrebo identifies that Israel is well aware of this special status and quotes a senior member of the IDF corps, declaring that ‘we in Israel are in a key position in the development of customary international law.’94 Vitrebo also documents the transfer of legal knowledge, especially between Israel and the USA in advancing practices that are not accepted by international law in order to present them as customary, for example the concept of ‘Unlawful Combatants’95 who are neither combatants and not civilians. Evidence of the impact of the Israeli legal system in terms of international law can be found everywhere. Just as an example, when examining two of the most extensive works on IHL in recent years, the new commentary by the Geneva conventions96 and the ICRC study on customary international law,97 the number of references to Israeli national court cases are second only to the US national court cases. These referred cases include rulings of the Israeli Supreme Court in relation to decisions of the Israeli Military Courts and even cases of the Israeli Military Court of Appeals itself.98 7. Conclusion The Israeli military court system is active and produces hundreds of elaborated judgments each year. The current political situation in Israel/Palestine does not provide a lot of hope that there will be a dramatic change in the coming years that will bring an end to the military occupation and its Military Courts. Although at the moment, there is no major direct influence by Israeli Military Court decisions on International customary law, the potential for such future influence is great because of a few developments. The first development is that the court is more and more inclined to deal and write about international law,99 especially since its decision from 2006100 that ruled that international humanitarian law is a higher norm than military commander legislation. The second development is the Israeli Supreme Court’s growing reluctance to examine decisions by the Military Court of Appeals, which makes them final and binding decisions. The third development is that the issue of occupation has resurfaced in recent years, in different areas outside of the Israeli Palestinian conflict,101 and there is a growing need for relevant Jurisprudence. That need for Jurisprudence, together with the Israeli Military Courts growing tendency to produce such rulings and the general growing interest in the Court could lead to a greater influence by the Court on the international customary law. This research and its findings present the dangers that such potential acceptance might have on the development of the law. The decisions of the military courts can appear sometimes as well analyzed and thorough and the Courts’ 50 years of existence and continuous output can be perceived as a testimony to a customary behavior. But the identification of the court rulings as a tool to apologize for the actions of the army, as Weill102 defines it, or as tool to answer for the needs of the army, as Luban103 defines it, together with the observation that the rulings might be written as part of the Israeli PR struggle or as an internal impression management tool to maintain the system, renders the rulings meaningless. It is therefore important to remember that the Israeli Military Courts’ rulings are the product of a biased court that uses, twists and changes and denies the application of international law for the sole purpose of obeying its master’s voice and thus cannot be the basis for a serious discussion on international law norms. Acknowledgement I wish to thank Prof Ray Murphy (NUI Galway) for his kind support, guidance and advise. I also wish to thank my anonymous reviewers for their comments and suggestions. Footnotes 1 ‘The Military Court Unit (Judea and Samaria)’. From the author’s database. 2 Geneva Convention, relative to the Protection of Civilian Persons in Time of War, 75 UNTS 287, 1949. Hereafter: The 4th Geneva Convention. 3 The initial 5565 rulings contain all the published rulings available on the major Israeli legal database web sites: ‘Nevo - Legal Data Base’ (Nevo.co.il, 1993) <https://www.nevo.co.il/> and ‘Takdin—Legal Data Base’ <http://www.takdin.co.il/> plus rulings from the author’s personal archive> accessed 15 February 2018. 4 The choice of words was created in order to spread the widest net possible, in order to capture as many cases as possible. It is unlikely that a ruling from the Military Court of Appeals, that seriously discusses international law, will not appear in this research. 5 The search yielded 212 out of the 5565 published rulings of the Military Court of Appeals. Of these 212, 108 cases were not relevant as the term was mentioned briefly without any proper discussion in the ruling itself. The other 104 cases, however, contain justifications referring to international law, which are further analyzed in this research. The research analyzes the cases according to their type, the category of international law that was used in them, their outcome and their participants. 6 Convention (IV) Respecting the Laws and Customs of War on Land and its Annex: Regulation Concerning the Laws and Customs of War on Land 187 CTS 227 1907. Hereafter: The Hague Regulations. 7 On the differences and similarities between art 64 of Geneva and art 42 of The Hague Regulations, see R St J Macdonald and G Von Glahn, ‘The Occupation of Enemy Territory: A Commentary on The Law and Practice of Belligerent Occupation’ (1961) 27 The Canadian Journal of Economics and Political Science 113. 8 Y Arai-Takahashi, ‘Law-Making and The Judicial Guarantees in Occupied Territories’ in A Clapham, P Gaeta and M Sassòli, The 1949 Geneva Conventions - A Commentary (1st edn, OUP 2015) 1421; Y Dinstein, The International Law of Belligerent Occupation (CUP 2009) 108–16. 9 The question of the applicability of human rights treaties in a situation of occupation has been greatly discussed by academics for more on this see: M Sassòli and LM Olson, ‘The Relationship Between International Humanitarian and Human Rights Law Where it Matters: Admissible Killing and Internment of Fighters in Non-International Armed Conflicts’ (2008) 90 International Review of the Red Cross 599; O Ben-Naftali, International Humanitarian Law and International Human Rights (OUP 2011); D Kretzmer, R Giladi and Y Shany, ‘International Humanitarian Law and International Human Rights Law: Exploring Parallel Application’ [2007] SSRN Electronic Journal 306. 10 Proclamations Orders and Appointments of the IDF Forces Headquarters in the West Bank (West Bank booklets of publications IDF, 1967). 11 The ‘Order Regarding Security Provisions’ had a few life cycles but the most important ones are, Order 378 that was valid from 1970 to 2009—Order Regarding Security Provisions; and Order 1651, which is the new codified version that came into being in 2009 and is valid up to today—The Codified Order Regarding Security Provisions. 12 The most recent is Military Order No 1799 that was published on 28 June 2018. 13 L Yavne, ‘Backyard Proceedings’ (Yes Din 2007) <https://www.yesh-din.org/en/backyard-proceedings/> accessed 2 July 2018. 14 In the Israeli legal system, any citizen or resident of Israel can petition directly to the High Court of Justice on specific subjects relating to the relationship between the state and its residents. In 1968, the Israeli authorities granted residents of OPT the same right. 15 1987–1991. 16 A Strashnov, Tsedeḳ Taḥat Esh (Yedi‘ot aḥaronot 1994) 144. 17 S Krebs, ‘Lifting the Veil of Secrecy: Judicial Review of Administrative Detentions in the Israeli Supreme Court’ (2012) 45 Vanderbilt Journal of Transnational Law 639. 18 For more about the courts selective jurisdiction decisions see: S Weill, ‘The Judicial Arm of the Occupation: The Israeli Military Courts in the Occupied Territories’ (2007) 89 International Review of the Red Cross 399. 19 On some administrative issues the military courts still have jurisdiction over Israeli settlers. 20 For most recent references, see O Ben-Naftali, M Sfard and H Viterbo, The ABC Of The OPT (1st edn, CUP 2019); A Gross, The Writing on the Wall: Rethinking the International Law of Occupation (CUP 2017); D Kretzmer, The Occupation of Justice: The Supreme Court of Israel and the Occupied Territories (State University of New York Press 2002); E Benvenisti, The International Law of Occupation (OUP 2012); Dinstein (n 8); M Karayanni, Conflicts in a Conflict: A Conflict of Laws Case Study on Israel and the Palestinian Territories (OUP 2014). 21 M Shamgar, Military Government in the Territories Administered by Israel 1967–1980 (Hebrew University Jerusalem, Faculty of Law, The Harry Sacher Institute for Legislative Research and Comparative Law 1982). 22 Z Hadar, Israeli Legislation and Jurisdiction in the Spheres of Military Law and Military Government (Hebrew University 1973). 23 Strashnov (n 16). 24 Z Lekach, ‘Human Rights in the Military Courts’ in A. Bendor (ed.) Mordehai Karmnitzers Book (1st edn, Nevo 2017); N Benisho, ‘The Criminal Law in Judea Samaria and Gaza: Overture and Trends’ (2004) 18 Mispat Vet’sava. 25 For more examples, see Addameer Prisoner Support and Human Rights Association (2008); Addameer,Presumed Guilty: Failures of the Israeli Military Court System: An International Law Perspective, Addameer Prisoner Support and Human Rights Association (2009); B’tselem—The Israeli Information Center for Human Rights in the Occupied Territories, Law Enforcement on Israeli Civilians in the Occupied Territories (1994); Yavne (n 13); B'tselem - The Israeli Information Center for Human Rights in the Occupied Territories, No Minor Matter—Violation of the Rights of Palestinian Minors Arrested by Israel on Suspicion of Stone Throwing (July 2011); B’tselem, The Israeli Information Center for Human Rights in the Occupied Territories, Presumed Guilty: Remand in Custody by Military Courts in the West Bank (N Baumgarten-Sharon and Y Stein 2015) <http://www.btselem.org/download/201506_presumed_guilty_eng.pdf> accessed 12 November 2018. 26 L Hajjar, Courting Conflict (University of California Press 2005). 27 K Cavanaugh, ‘The Israeli Military Court System in the West Bank and Gaza’ (2007) 12 Journal of Conflict and Security Law 197; Kretzmer (n 20) 32; Weill (n 18) 417. 28 H Viterbo, ‘Rights as a Divide-and-Rule Mechanism: Lessons from the Case of Palestinians in Israeli Custody’ (2018) 43 Law & Social Inquiry 764. 29 S Ben-Natan, ‘The Application of Israeli Law in the Military Courts of the Occupied Palestinian Territory’ (2014) 43 Theory and Criticism 45. 30 E Benvenisti, ‘Judicial Misgivings Regarding the Application of International Law: An Analysis Of Attitudes of National Courts’ (1993) 4 European Journal of International Law 159. 31 S Weill, The Role of National Courts in Applying International Humanitarian Law (OUP 2014). 32 ibid 13–67. 33 ibid 69–114. 34 ibid 12. For more, see also R Shamir, ‘“Landmark Cases” and the Reproduction of Legitimacy: The Case of Israel’s High Court of Justice’ (1990) 24 Law & Society Review 781. 35 ibid 69. 36 A Bianchi, ‘Serious Violations of Human Rights and Foreign States’ Accountability before Municipal Courts’ in Man's Inhumanity to Man: Essays on International Law in Honour of Antonio Cassese (Kluwer Law International 2003). 37 AJ Pierre and TM Franck, ‘Political Questions/Judicial Answers: Does the Rule of Law Apply to Foreign Affairs?’ (1992) 71 Foreign Affairs 196. 38 Benvenisti (n 30). 39 For example, see the analysis in M Sfard, The Wall and the Gate (Metropolitan Books 2018) that examines HCJ decisions on the separation wall and shows how Court rulings about limiting the possibilities of the army to choose the path of the wall helped in legitimizing the construction of the wall. 40 Weill (n 31) 176–79. 41 ibid 158–76. 42 The choice to limit the study to the rulings of the Military Court of Appeals stems from several reasons. First, prior to the establishment of the Appeals Court in 1989, there are almost no published rulings dealing with international law (the research identified only eight cases). Second, prior to the establishment of the Appeals Court, most of the prominent cases found their way to the Israeli High Court of Justice, a practice the High Court of Justice blocked after the establishment of the appeals court. Third, the nature of the Military Court of Appeals, as an appeals court, is to issue reasoned and elaborated decisions, where the possibility of finding an in-depth legal discussion is greater. 43 See the discussion on the ‘Swartz’ case. 44 The Military Courts in Judea and Samaria, ‘Yearly Statistics Reports—2007–2016’ (IDF 2016). From the author’s database. 45 Z Lekach and A Dahan, ‘99% Conviction Rate In Israel - Distortion of Justice or Just Distortion of Statistics?’ (2010) 5 Haifa Law Review 185. 46 All administrative cases deal with the legality of personal military orders issued by the Military Commander against a person regarding his freedom or his possessions, so the model of plea bargains cannot apply to them. 47 Mainly legislation about fortification of property and about release on parole from prison. 48 For example see: 1643/05 (Appeals) Jamal Alhiga v The Military Prosecutor [2011] Military Court of Appeals (Military Court of Appeals), where the judge refers to a Talmudic text in Aramaic. 49 For more on this, see: Ben-Natan (n 29). 50 Courts 'Yearly Statistics’ (n 44). 51 This research could not find any statistics about the success rate of cases involving Jewish Israelis in the courts, and therefore cannot determine if the results exceed the average in cases that involve Jewish Israelis. 52 1779/08 (Appeals) Ahmed Hasin v Military Prosecutor [2008] Military Court of Appeals (Military Court of Appeals). 53 Weill (n 31). 54 Eighty percent of the rulings of the Military Court of Appeals that alluded to international law were written by only seven different judges. All of them switch between different approaches when it comes to international law in their rulings so this research could not identify any judge with a specific and consistent approach to international law. 55 See Figures 4 and 5. 56 Hasin case (n 52). 57 A good example could be cases involving settlers’ interests. 58 This observation of the judges’ behavior is, of course, not new and is one of the corner stones of legal realism, which sees judges as humans whose legal decisions are frequently influenced by extra-legal factors like preferences and values. For more about this highly discussed matter: B Leiter, Legal Realism and Legal Positivism Reconsidered (OUP 2007). 59 The court’s technique to avoid a discussion on international law in a court whose jurisdiction is based on international law, is to narrow the scope of the case. For example, in the cases against the leaders of the protest against the separation wall, the leaders brought up arguments from international law regarding the legality of the wall, and the right to protest. The Court of Appeals ruled that the only relevant question is the specific behavior of the specific defendants in the specific demonstration, therefore avoiding questions on international law; 1947/10 (Appeals) Military Prosecution v Adib Abu Rahma [2011] Military Court (Military Court). 60 Hasin case (n 52) . 61 D Luban, ‘Military Necessity and The Cultures Of Military Law’ (2013) 26 Leiden Journal of International Law 315. 62 ibid, para 3.6. 63 R Shehadeh, ‘Occupier’s Law and the Uprising’ (1988) 17 Journal of Palestine Studies 24. 64 Hajjar (n 26). 65 Cavanaugh (n 27). 66 Weill (n 26). 67 Ben-Natan (n 29). 68 Hajjar (n 26). 69 ibid 189: ‘Palestinian defendants tended to narrate their experiences in the court system in a language of exclusion, helplessness, ignorance, and passivity. They became, in that institutional setting, objects.’ 70 C Magen and E Lapid, ‘Israel’s Military Public Diplomacy Evolution: Historical and Conceptual Dimensions’ (2018) 44 Public Relations Review 287. 71 ‘The Military Court Unit (Judea and Samaria)’. From the author’s database. 72 Although Impression Management has its origins in sociology, such as in the works of Erving Goffman (E Goffman, The Presentation of Self in Everyday Life (Anchor Books/Doubleday 1959), it is also rooted in the literature of organizational psychology: BR Schlenker, Impression Management. The Self-Concept, Social Identity and Interpersonal Relations (Brooks/Cole Publishing Company 1980). 73 MR Leary and RM Kowalski, ‘Impression Management: A Literature Review and Two-Component Model’ (1990) 107 Psychological Bulletin 34. 74 Schlenker (n 72). 75 DP Bozeman and K Michele Kacmar, ‘A Cybernetic Model of Impression Management Processes in Organizations’ (1997) 69 Organizational Behavior and Human Decision Processes 9. 76 Although this research has examined all the published Military Court of Appeals cases from its establishment in 1989, 90% of rulings that are longer than five pages, are from 2001 on. 77 Benisho (n 24). 78 Lekach (n 24). 79 Yavne (n 13). 80 Krebs (n 17), shows that, in 10 years, out of 288 petitions against the Military Court of Appeals to the Israeli Supreme Court regarding administrative detentions, only one was accepted. 81 For example: 5373/15 Muhamad Nawara v The Military Court of Appeals [2015] HCJ (HCJ) 7. 82 The Gilad Shalit prisoners deal followed a 2011 agreement between Israel and Hamas to release Israeli soldier Gilad Shalit in exchange for 1027 Palestinian prisoners. 83 arts 184–186 of the codified Order Regarding Security Provisions. 84 In 1762/12 (Appeals) Sharawne v the Military Prosecutor [2012] Military Court of Appeals (Military Court of Appeals). The Court ruled, that because the committee is, in practice, a parole committee, then secret evidence is enough to rule that someone committed a crime and that the international law right to be informed of the nature and the cause of the accusation are not relevant to this process. This is again a classic apologetic approach by the Court in order to submit to the needs of the Military Commander. 85 716/13 Sharawne v the Military Court of Appeals [2013] HCJ (HCJ). The appeal was rejected without a substantive discussion. 86 The 12th Amendment to the Parole Law (2001). 87 The application of this legal mechanism in Israel means that Israel can activate it against Palestinians with Israeli citizenship who were released as part of the deal. 88 Dinstein (n 8) xii Preface. 89 ibid. 90 Ben-Naftali (n 9). 91 ibid 5. 92 M Sassòli, ‘Concept and the Beginning of Occupation’ in Clapham, Gaeta and Sassòli (n 8) 1392. 93 ibid. 94 Ben-Naftali (n 9) 103. 95 ibid 112. 96 Clapham, Gaeta and Sassòli (n 8). 97 J-M Henckaerts, L Doswald-Beck and C Alvermann, Customary International Humanitarian Law (CUP 2005). 98 Both are referring to the POW status case of 4/69 (Ramalla) The Military Prosecutor v Omar Kassem Military Courts (Military Courts). 99 Most of the cases in this study are from the last 10 years. 100 05/06 (Appeals) Swartz v The Military Commander [2006] Military Court of Appeals (Military Court of Appeals). 101 Such as the 2003 military occupation of Iraq by the US-led coalition forces; Ethiopia’s 2006 occupation of part of Somalia, Nicaragua’s occupation of Isla Calero in 2010 and Russia’s occupation of parts of Georgia in 2008 and Crimea in 2014. 102 Weill (n 76). 103 Luban (n 61). © Oxford University Press 2019; All rights reserved. For permissions, please e-mail: journals.permissions@oup.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/open_access/funder_policies/chorus/standard_publication_model) http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Journal of Conflict and Security Law Oxford University Press

The Rulings of the Israeli Military Courts and International Law

Journal of Conflict and Security Law , Volume Advance Article – Apr 1, 2020

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Oxford University Press
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© Oxford University Press 2019; All rights reserved. For permissions, please e-mail: journals.permissions@oup.com
ISSN
1467-7954
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1467-7962
DOI
10.1093/jcsl/krz017
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Abstract

Abstract International humanitarian law (IHL) provides the occupying power extensive legal tools in order to allow it to control and govern the local occupied population, with the possibility of establishing a military law system being one of the most influential. The military law system gives the Military Commander of the occupied area an immense power as a potential legislator and judicial authority, but what happens when this legal system encounters the limitations placed by IHL in general and Occupation Law in particular? To examine this question, this article will present the case of the Israeli Military Court system in the Palestinian Occupied Territories and its use, abuse and misuse of international law norms. Based on the 5565 published rulings of the Military Court of Appeals, this research identifies all of the cases that refer to international law. This article suggests that the evolving approaches of the courts to international law are, in fact, a tool to justify and advance Israeli interests over the rights of the Palestinian defendants. Moreover, the article presents the potential impact these rulings have on the law in Palestine, the law in Israel and customary international law. 1. Introduction When a foreign citizen wishes to coordinate a visit to the Israeli Military Courts in the Occupied Palestinian Territories (OPTs) in the West Bank, they are handed an official pamphlet in English that starts with the statement: ‘The Military Courts in Judea & Samaria were established according to International Law.”1 Later, the pamphlet identifies Article 66 of the Fourth Geneva Convention2 as the legal source of its operation. This research examines precisely this point, asking how the Military Court’s identification of its jurisdiction as being derived from IHL impacts its rulings in terms of international law? To that end, this article analyzes the following parameters in the rulings of the Israeli Military Court of Appeals that refer to international law, asking the following. (i) How often does the Military Court of Appeals refer to international law and to what kind of law? (ii) In what kind of cases does the Court choose to refer to international law and why? (iii) What is the general approach by the Court when it comes to international law? (iv) Finally, what is the impact of these decisions on the law in the OPTs and on international law in general? The research data are based on the 5565 rulings that the Military Court of Appeals has published since it was founded in 1989.3 Using a Hebrew text analysis program, the research looked for cases where the following words appear at least once in Hebrew or in English4: ‘international law’, ‘law of war’, ‘IHL’, ‘convention’, ‘Human Rights Law’, ‘Geneva’, ‘Hague’, ‘ICJ’, ‘ICC’, ‘ICTY’, ‘ICTR’ and ‘ICCPR’. The results of this study show that, although the court’s jurisdiction is derived from international law, the court does not often use international law in its rulings (apparent in less than 2% of all cases).5 International law is used in a very superficial way and usually only when referring to an article or articles from the Geneva Conventions. The court switches between different approaches with regard to international law in order to achieve the desired result that is almost always tailored to favor Israeli interests over the rights of the Palestinian defendants. These rulings have the dangerous potential to impact the law in the occupied territories, in Israel and even in international customary law. This article proceeds in three parts. The first part presents a brief analysis of the legal mechanism that allows the occupier to legislate and to establish Military Courts in the Occupied Territories, background information on the Israeli Military Law and Courts and a literature review on the relevant academic writings on the Israeli Military Courts. The second part presents the general findings of the research by dividing the rulings according to their type (criminal/administrative), the kind of international norm being referred to (international conventions, international jurisprudence, scholars), the results of the cases (for the military authorities or for the defendants), the sides in the case (Military, Palestinians, Settlers) and the approach that was taken by the court regarding international law (Apologetic, Avoiding, Limiting, Utopic). The concluding part will examine the possible reasons for the Military Court of Appeals’ multifaceted approach to international law and presents the additional effects these rulings may have on the law in the OPTs, on the Israeli legal system and on the advancement of international law. 2. The Legislative and Judicial Powers of the Occupier under IHL One of the most important duties of the occupier under IHL is to ensure public order and safety while following the law that was in force prior to the occupation. Article 64(1) of the 4th Geneva Convention details two conditions under which the occupier can change the local legislation: if local law is a threat to security, or if it is an obstacle to the application of the Convention. The term in the article ‘unless absolutely prevented’, also appears in Article 43 of The Hague Regulations6 regarding penal legislation.7 Article 64(2) of the 4th Geneva Convention sets out three conditions under which such legislation is authorized: for the application of the Convention, to maintain order and for the occupying power’s own safety. However, this authority may be exercised only when it is essential for achieving one or more of these conditions. The general rule regarding the legislative capacities of the occupier is that, although it has very extensive authority to legislate, that legislation cannot, by any means, become an oppressing power to be used against the population.8 The authority to establish courts can be found in Article 66 of the 4th Geneva Convention that lists three requirements for the functioning of military courts: they must be properly constituted, must be nonpolitical and located in the occupied territories. The definition by Article 66 of ‘properly constituted, non-political military courts’ is, of course, very limited but Articles 71–74 of the 4th Geneva Convention give a more detailed description on the protection and the rights that the protected person accused in those courts is entitled to. Another important source of rights for the accused in military courts can be found in human rights treaties such as the International Covenant on Civil and Political Rights.9 3. History of Israeli Military Law and Courts On 7 June 1967, the second day of the Six Days War between Israel and the armies of Egypt, Jordan and Syria, in the areas that were already taken by the Israeli army from the neighboring countries, the Israeli army published and distributed a 27-page booklet in Hebrew and Arabic. This booklet contained the foundations for Israeli Military Law and its Courts.10 The booklet was a collection of proclamations and military orders stating that the army was now in control of the area and was in charge of all aspects of life. The law that applied in the land prior to occupation remained in place, however, the Military Commander of the area could now issue new laws to maintain order. The first new law that was written in the booklet was the ‘Order Regarding Security Provisions’11 which established the Military Courts, defined the ways in which they operate and created a line of new felonies. This booklet formed the basis of what would become, over the years, a complex and massive operation that has influenced the lives of thousands of Palestinians in the OPTs. In the 50 years that have passed since then, hundreds of Military Orders12 (the Military Commander legislation) have been issued by the ever-changing Military Commanders, covering almost all areas of life in the OPTs. A significant part of the legislation was dedicated to the establishment of the Military Courts and their duties and the creation of new penal provisions mostly through the constant amending of the Order Regarding Security Provisions. The Courts themselves have changed and evolved throughout those years. In 2007, it was estimated that at least 800000 Palestinians, out of a population of 3200000,13 have passed through Israeli Military Courts since 1967. In the first 20 years of the courts’ activity, most of the important decisions regarding the legality of aspects of the legal activities of the military in the OPTs were brought in the form of a petition to the High Court of Justice (HCJ) in the Israeli Supreme Court.14 International and internal criticism of the courts’ activity during the First Intifada15 together with the increased number of cases reaching the Israeli Supreme Court led to the establishment of a Military Court of Appeals in 1989.16 Since the establishment of the Military Court of Appeals, the Israeli Supreme Court has limited its intervention in the courts’ activity, mainly to cases of administrative detentions.17 Until 2002, panels of three military judges included, besides the ‘Presiding Judge’ who was a judge with a legal education (a ‘jurist judge’), two lay judges who were IDF officers from various units, devoid of any legal training. Since 2002, only jurist judges have been allowed to preside as judges in the court. The core judges are approximately 15 professional military judges who sit in the court daily and more than 50 reserve judges who are Israeli lawyers, most of them without any criminal law experience, who are called for service and sit mainly in the remand courts. The court’s geographical jurisdiction has been reduced through the years following a series of agreements and government decisions, first with the return of the Sinai Peninsula to Egypt, the annexation of east Jerusalem and the Golan Heights and then with the Oslo accords and the Gaza withdrawal.18 Although the Courts have technical jurisdiction on the actions of the Israeli settlers in the OPTs, an Israeli policy decision has meant that, since the 1980s, Israeli settlers are brought to justice under Israeli law in the Israeli civil courts inside Israel (Figure 1).19 Figure 1. View largeDownload slide The structure of the Military Courts. Figure 1. View largeDownload slide The structure of the Military Courts. The topic of the Israeli military’s control of the OPTs has been well-researched.20 The writings on the activities and the legality of the Israeli Military Courts have been conducted by three main audiences: military officials, NGOs and academics. The military officials that established the Military Courts, documented their activity in writings. The books by Meir Shamgar,21 the Military Advocate General who established the Military Courts and who was later the President of the Israeli Supreme Court, along with Zvi Hadar’s writings, Shamgar’s predecessor as Military Advocate General,22 tell the story of the establishment of the Military Courts in their early years. Amnon Strashnov, who served as President of the Military Courts during the First Intifada documented the Military Courts’ activity during that time.23 Nethanel Benisho and Zvi Lekach, the current President and Vice President, respectively of the Military Courts, brought some more recent evidence of current developments in the law and the Military Courts.24 These publications, picture stories and information from the people who run the Military Court system present a very narrow Israeli perspective. Palestinian and Israeli NGO’s like Addameer, Al Hak, B’tselem and Yesh Din have been monitoring and documenting the activities of the Military Courts since the First Intifada and have published detailed reports on several aspects of the courts’ activity.25 These reports provide valuable statistics on the activity of the court and its impact on the Palestinian population. From a sociological point of view, research on the Military Courts has been done by Lisa Hajjar who explored the courts’ activity based on the extensive field work she conducted. Her research contains valuable data such as interviews with all the main actors in the courts, from the administrators to lawyers, defendants and their families.26 International law academics have explored the legality of the construction and activities of the courts with regards to IHL and the law of occupation. Weill shows how the Military Courts are expanding and narrowing their jurisdiction to answer specific needs. Cavanaugh describes the courts’ activities and their normative powers. Kretzmer describes the role of the Israeli Supreme Court in acknowledging the jurisdiction of the Military Courts.27 They all present the problematic side of the military legal system, operating in occupied land in a long-term military occupation situation. However, very little attention has been paid to the jurisprudence of the court itself. Exceptions are the works of Vitrebo, who examined the Military Courts’ approach in cases with Palestinian minors28 and Ben-Natan who was critical of the Military Courts’ tendency to adopt norms from the Israeli legal system.29 This research will be a first attempt to examine the whole body of Military Court cases that deal with the application of international law. 4. The Military Court of Appeals’ Rulings on International Law As Benvenisti30 and Weill31 have identified, national courts in different countries have different approaches to the application of international law: the apologist approach, which tries to justify the actions of the state according to international law;32 and the avoiding approach, which claims that international law questions should not be discussed in national courts.33 The first approach is the ‘apologist’ role of the courts. The court uses international law as a tool to legitimize state policy. By analyzing cases from the Israeli High Court of Justice and the Belgrade War Crimes Chamber, Weill shows clear examples of where the courts change their interpretation of international law from case to case in order to provide a legal cover for actions by the state.34 The second approach is the ‘avoiding’ role of the courts. This approach is presented in cases in which the court decides that the question of international law is outside the scope of the court.35 This approach was led by the US and UK Supreme Courts which used the ‘acts of state’ doctrine36 and the ‘political question’ doctrine37 to rule that the ‘international law’ legal question is outside of what a local court should deal with. The third approach refers to the ‘limiting’ role of the courts. According to this approach, the court uses international law in order to limit state actions that the court rules are contradicting international law. This active approach that has been used more and more by courts around the world,38 also has a different side, which is the legitimizing side. The court’s choice to intervene and limit specific actions by the state, by setting the rules for when this specific action is legal, is giving legitimacy to the action itself.39 The fourth approach is best seen as the utopian role of the courts. This asserts that the court uses the power of its rulings on the existing norms of the state by adopting and developing international law norms into the national legal system.40 Weill surveys few examples of this approach41 that is used for specific subjects by specific judges. For the purpose of identifying which of these approaches is more relevant to the rulings of the Military Courts, this research has examined all of the reasoned and published decisions of the Military Court of Appeals in relation to international law.42 The research identified 104 cases that relate to international law out of the 5565 published cases of the Military Court of Appeals since it was founded in 1989. This result shows that less than 2% of all the reasoned cases of the Military Court of Appeals discussed international law per se. Without comparing to other courts, this result carries limited explanatory power. However, it is truly intriguing when we consider that international law is the law that acts as the basis for the constitution of the Military Courts.43 In analyzing the 104 cases dealing with questions of international law, the following questions were posed: (i) What type of legal proceeding was it? (ii) What type of legal question was being raised? (iii) What kind of international law mechanism was the Court referring to: IHL, human rights laws, the jurisprudence of foreign countries, international courts or international law scholars? (iv) Was the appeal won or lost and what was the effect of the Courts’ decisions on the defendants themselves? 5. The General Findings of the Research A. The Type of Cases (Figure 2) As for the type of cases where the Court chooses to refer to international law, the divide is almost half and half between criminal cases and administrative cases. Figure 2. View largeDownload slide Type of cases. Figure 2. View largeDownload slide Type of cases. This almost equal divide between administrative and criminal cases showed an unexpected result in comparison to the usual ratio between these cases in the Military Courts. They are primarily criminal courts while the average case load of administrative cases is only between 5% and 15% of all cases.44 This high representation of administrative cases in the research results could have several possible explanations. The first possible explanation is that, in the Military Courts, accused persons almost never get to finalize their litigation, as more than 98% of the cases end in a plea bargain.45 The nature of administrative cases is that there is no possibility for a plea bargain46 so there are more reasoned decisions and litigation in administrative cases relative to their overall proportion of the total number of court cases. The second possible explanation concerns the types of administrative cases that were gathered for the research. Around 30% of the administrative cases referring to international law concerned new legal mechanisms47 that were introduced by the Military Commander since 2008. Those new legal mechanisms were brought to Court for the first time and therefore, also needed to be examined and interpreted by the Court from the perspective of international law. This wave of administrative legislation and the cases that followed could have contributed to the rise of administrative cases in the research results. A third possible reason for the high percentage of administrative cases in the research may be found in the identity of the sides in the administrative cases dealing with international law. As explained above, the only contact the Military Courts have had with the Israeli settlers since the 1980s is through the Administrative Court in cases relating to land and administrative limitation warrants. A surprising finding of the research is that, out of the 104 cases of the final research, Israeli settler cases (11 cases) made up 10% of all cases and 20% of all administrative cases, while the percentage of all Israeli cases in the Military Courts is less than 0.1% of all cases and less than 1% of administrative cases. The reason for this high representation of Israelis in the cases referring to international law can be found in the fact that the Israeli lawyers representing Israeli defendants tend to question the military authority acting against Israeli citizens and do so by referring to international law arguments. This phenomenon also increases the total number of administrative cases relating to international law. B. The Types of Criminal and Administrative Cases In both groups of cases—criminal or administrative—this research identified different kinds of legal questions referring to international law. The criminal cases could be divided into two categories. The first group are the cases where international law is raised in order to challenge or justify the Court’s jurisdiction on a specific action or person (28 cases). Those cases include questions on the Court’s jurisdiction on actions that were committed in the Palestinian-controlled area or in Israel, or questions on immunity for Palestinian members of parliament or questions on the applicability of a ‘prisoner of war’ status. Second, there are cases where international law is invoked in order to interpret a specific clause in criminal law (23 cases) such as the death penalty, minor rights and due process questions. The administrative cases could also be divided into two categories. The first category includes cases where international law is raised in order to challenge or to approve a warrant that limits the freedom of a person (32 cases), such as an administrative arrest, revoking a prison release, deportation and movement limitations. The second group of cases contains those where international law is brought up in order to challenge or to approve a warrant that limits rights on property (21 cases) such as expropriation of land or forfeiture of possessions. C. The Type of International Law Mechanisms Mentioned in the Cases (Figure 3) Typically, the Courts have a very superficial and insufficient analysis of international law in their rulings, as found in the research. Most judges settle for referencing the articles of the Geneva Conventions and The Hague Regulations without seeking answers in literature, foreign cases or other conventions. Figure 3. View largeDownload slide International law references. Figure 3. View largeDownload slide International law references. It is noteworthy that 90% of all references to other conventions, international scholars’ opinions and international case law were generated by only two judges, the residing and the former presidents of the Military Court of Appeals. The choice of most of the judges at the Military Court of Appeals to settle for a basic analysis of international law should also be examined in relation to other legal system references found in those rulings outside of the main military codex. The local law in the OPTs prior to the occupation, Ottoman, Jordanian and British mandate law, is mentioned in 25 of the cases. On the other hand, in all 104 cases examined in the research, there are extensive references to Israeli Civil Law and Israeli Court Case Law which do not directly apply in the Courts. Furthermore, in 22 of the cases, there are also references to Jewish Religious Law (Halacha).48 These findings indicate that most of the judges in the Military Courts are more comfortable in conducting a legal discourse through the legal system of their education (Israeli law) than through the actual legal system that applies in the Court, based on international law and local law. The decision to examine a legal question based on international law via Israeli law is, in the writer’s opinion, not only a matter of comfort but could also be a matter of advancing Israeli interests as rightly identified by Ben-Natan.49 D. The Outcome of the Cases (Figure 4) As all 104 cases of the study were from the Military Court of Appeals, the question examined centered on the outcome of the appeal—whether it was won or lost. This outcome was further analyzed through the categorical division of the appellant, the military prosecution or the defendant. Figure 4. View largeDownload slide Outcome of cases. Figure 4. View largeDownload slide Outcome of cases. The results are statistically similar to the general statistics published by the Court of Appeals’ statistical summary,50 and it seems that discussing international law does not have a strong impact on the Court of Appeals’ rulings on whether the appeals coming from the prosecution or the defendants are won or lost. The only noticeable difference between the research findings and the general statistics is that the percentage of defendants’ appeals that were won was slightly higher in the research—17%, compared to 10% in the general statistics. When examining the 18 defendant appeals that were won, this difference can be explained in two possible ways. The first explanation for the relatively high number of cases where the defense won, arises from the high and disproportionate percentage of Jewish Israeli cases. The success rate for Israeli Jewish appellants, seven out of ten, is as high as the prosecution success rate and this has had a clear impact on the results.51 Another explanation can be found in the large amount of cases where the appeal was won but it had little or no effect on the defendants themselves. An example of this kind of ruling can be seen in the Hasin Case.52 In this case, the appellant was arrested in his house and was held for 4 months in administrative detention. During the arrest, the army found a large sum of money which was seized by the military authorities on suspicion of being terror-related funds. After his release, the appellant asked the Court to challenge the forfeiture warrant, and the lower court ruled that the Military Courts have no jurisdiction to examine the forfeiture warrant. The appellant appealed against this decision to the Appeals Court that accepted the appeal and sided with the applicant’s main argument, that the Court should have jurisdiction to examine the forfeiture warrant. Later, the Court ruled that, although it has jurisdiction, and after examining the specific circumstances of the case, there was no justification for overruling the forfeiture warrant and returning the money to the appellant. Out of the eight cases where the court found for the defense but the decision had little or no effect on the defendants themselves, five were of a similar nature to the Hasin case ie cases where the Court accepted the main legal argument of the defense about the Court’s jurisdiction, but the outcome had no effect on the defendant’s original claim. The remaining three cases, where the court ruled in favour of the defense but the decision had no effect on the defendants, are criminal cases, where the defendants were partially acquitted of an indictment against them in the Appeals Court following a question of principle relating to criminal law, but the Court ruled that there should not be any change in the actual punishment against them following the acquittal. In this way, because the cases where international law is discussed by the Court tend to be cases featuring important principles, it is easier for the Court to accept the general claim without interfering in the outcome of the case (Figure 5). Figure 5. View largeDownload slide Defendant’ appeals accepted. Figure 5. View largeDownload slide Defendant’ appeals accepted. 6. The Approaches of the Military Court Regarding International Law This research divided the 104 cases according to their approach to international law as identified by Weill53: the apologist, the avoiding, the limiting and the utopian approach (Figure 6). Figure 6. View largeDownload slide Approaches to international law. Figure 6. View largeDownload slide Approaches to international law. The results clearly indicate that the apologetic approach, which tends to justify the actions of the Military Commander under international law is, by far, the most common practice used by the Military Courts. This is not surprising as this is also found to be the most common approach in the Israeli Supreme Court, which sets the tone in the Israeli legal system. What is surprising, though, is that the Court also uses all of the other approaches to international law. When trying to find an explanation for this discrepancy through a correlation between a specific approach and a specific judge or bench, it does not yield any clear answers, as different approaches were taken by the same judges and benches.54 However, this research has found that understanding the use of the different approaches in each case is the key to the desired result. The fact that, out of the 104 cases that were examined, only three rulings were in favor of a Palestinian, in such a way that it actually had a real impact,55 shows a very clear pattern of a pro-prosecution court. The only cases where the prosecution pleas were rejected were cases where the prosecution tried to question the jurisdiction of the court,56 or when the other side represented a different Israeli interest than the prosecution.57 Examining the cases through this perspective, shows that the Court used the ‘most convenient to justify’ approach to international law in order to achieve the desired result.58 If this result could be reached by a very conservative, or plainly wrong, interpretation of international law norms, then the apologist approach was used. The avoiding approach was used if the required result could be reached only by ignoring the application of international law on the situation.59 If the argument is that the Military Commander has restricted the authority of the courts, they will prefer to use international law to limit the power of the Military Commander with the limiting approach.60 If the desired result could be reached by applying a new international law mechanism, then the utopian approach was used. International law, for the Military Courts, is just an obstacle, or a tool, to satisfy the needs of the court and Israeli interests. This approach can be explained not only through the eyes of Weill’s Apologist Court Theory but also through Luban’s ‘necessity approach’.61 As Luban identifies, the military legal personnel see their profession and duty as those who provide the legal support for the army’s military necessities, and they perceive international humanitarian law as the tool that allows the army to function, in conflict with legal protection and not as human rights lawyers and, as most academics perceive it, as a tool to defend the civilian population in times of conflict.62 In the case of the Israeli military courts, it is important to remember that all the judges are Israeli army officers, so the necessity approach could fit their tendency to rule in favor of the military authority’s needs. This biased approach by the courts is not surprising, as previously identified by Shehadeh,63 Hajar,64 Cavanagh,65 Weill66 and Ben-Natan.67 However, there are still two more questions to be answered in this regard. The first is, why does the Court, if it is such a biased Court, bother to write such elaborate rulings regarding international law? The second is, do these decisions have a bigger impact beyond the life of the specific subjects of the case? A. The Military Courts’ Need for Rulings That Reference to International Law Most of the decisions made by the Military Court of Appeals that were used for this study were long and elaborate and some of the legal discussions in these decisions are thorough and extensive. In her study, Hajar68 indicates that Palestinian lawyers and clients69 have no faith or trust in the Military Courts system, so it is obvious that the Courts’ clients are not the target for these writings. So to whom do they address their legal reasoning and why? One simple answer could be that it is part of the Israeli military’s involvement in Israeli foreign policy and public relations70 to justify the legality of its actions in the OPTs. As described above, the Military Courts have been criticized by academics and international NGOs. Presenting a well-discussed legal argument in a ruling by Military Courts could, prima facie, strengthen the Israel argument that the Courts are run in a professional and non-biased way. A confirmation of this theory can be found in the official pamphlet71 handed out to foreign visitors to the Military Courts that surveys some of the Court’s most important rulings. A just Military Courts system, which is not afraid to seriously tackle important legal questions, can show the world that Israel is doing its best to keep its legal obligations as an occupier. Whilst this explanation gives a probable answer to the question, it is certainly not a full one. If this was the only explanation, then it would have been expected that the Court would put more of an effort into publishing its decisions, while, in practice, the army does not translate the rulings of the Military Courts and access to them is limited. A complementary explanation for the commitment of the Military Court to present extensively-discussed rulings can be found in the sociological theory of institutional Impression Management.72 The term ‘Impression Management’ refers to the process by which individuals attempt to control the impressions of others.73 Schlenker74 defined it as the attempt to control images that are projected in real or imagined social interactions. Impression Management is used when a person or an institute wishes to create and maintain a specific identity. This goal is achieved by intentionally exhibiting certain behaviors that will lead others to view the actors as they want to be viewed.75 Applying this theory to the military judges’ behavior could explain their need for detailed and justifiable rulings. In the 1990s, a liberal discourse swept through the Israeli legal system with the Supreme Court constitutional revolution. The judges of the Military Courts that presided during the relevant years of this research were educated academically and professionally during those years. The clash between these liberal values and the role of a military judge in the Military Courts came to a head with the beginning of the Second Intifada. This is also the exact period when the Military Court of Appeals started to present extended and elaborate rulings.76 Analyzing this phenomenon from the perspective of Impression Management Theory suggests that the judges felt the need to present to their colleagues in the system that, although they serve in the Military Courts, which were highly criticized, they are still part of the legal system they were educated in. Their tactic in writing lengthy and complex justifications in their rulings was Impression Management aimed at the rest of the system. Support for this theory can be found in the judges’ academic writings. The two major articles written by the Military Court of Appeal’s President Benisho77 and Vice President Lekach,78 about the conduct of the Military Courts, presents a pro-human rights approach by the Court. These articles were written in Hebrew and published only in Hebrew Israeli law journals. The readers of these articles are, therefore, the members of the Israeli legal system itself, and just like the rulings, they are part of the judges’ Impression Management attempts to justify the existence of the Military Courts system. B. The Impact of the Rulings on the Lives of the Palestinian Population The most clear and obvious side effect of the rulings of the Military Court of Appeals is their value as precedents. Based on the common law system, the law in the OPTs is continually developing as a result of court decisions, and since the establishment of the Military Court of Appeals, its decisions have been binding on the lower Military Courts that deal with the vast majority of the cases. It is apparent then, that the decisions of the Military Court of Appeals, while using international law justifications, have a significant and intentional impact on all similar cases that raise the same or a similar legal question. The wide impact of these cases is manifested, not so much in other court rulings, but in the decision by the lawyers and clients, based on these rulings, not to try to fight them in court and to go for a plea bargain, which has led to a devastating percentage of convictions in the Military Courts (99.76%).79 C. The Impact on the Israeli Legal System Since the Military Court of Appeals was established, the Israeli Supreme Court has reduced dramatically its judicial review80 of the rulings of the Military Courts stating that: ‘The High Court of Justice does not sit as an instance of appeal to the Military Courts and will not intervene in their decisions, except in exceptional cases in which they acted with a lack of authority or in substantive violation of the rules of natural justice.’81 This limited judicial review by the Israeli Supreme Court allowed the Israeli authorities to test new legal mechanisms that are questionable under international law in the Military Courts. If they managed to pass the Military Courts and then the limited judicial review by the Israeli Supreme Court, this allowed them to adopt these to the internal laws of Israel. The proposition by the Israeli authorities is that the Supreme Court will find it difficult to rule against a legal mechanism used in Israel after it was approved to be used in the OPTs. A clear example of this method can be demonstrated by examining the legal route that allowed the re-arresting of people who were released in the ‘Gilad Shalit Deal’.82 The first stage was to amend military law so that it would allow a committee of Military Court judges to rule that the ex-prisoner had violated the terms of his release and to return him to prison for the rest of his remaining sentence, based solely on secret evidence, presented ex parte.83 The second stage was to persuade the Military Court of Appeals that this amendment is legal, although it contradicts many principles of due process that are protected by international law.84 The third stage was to remind the Israeli Supreme Court that it has limited judicial review over the Military Court of Appeals.85 The fourth stage was adopting the military legislation into Israeli legislation.86 By using the flexible approaches of the Military Court of Appeals to international law, and the Israeli Supreme Court’s limited supervision over it, the Israeli authorities managed to import to the Israeli legal system a mechanism that directly contradicts the principles of due process.87 D. The Impact on the Advancement of International Law To understand the impact of the rulings of the Israeli Military Court of Appeals on international law, one should first address the impact of the Israeli occupation on international law in general. The long and continuous Israeli occupation of the OPTs has, as Dinstein says ‘a critical significance’88 to the understanding of belligerent occupation, due to the fact that ‘the practical experience acquired has been of incalculable value in assessing the interface between the theory and practice of belligerent occupation.’89 Ben Naftali,90 with a more critical approach, concurs with the potential impact of the Israeli occupation, claiming that ‘a careful scrutiny of the experiments carried out in Israel laboratories may well generate lessons that are relevant to other situations, and indeed to the course of the development of international law.’91 The importance of the Israeli occupation to the law of occupation is so significant that, as Sassoli defines it, it ‘overshadows’92 the whole discussion on occupation: ‘this case (the Israeli occupation) has attracted the most international and domestic jurisprudence, scholarly writing and practice of states and international organizations’.93 Vitrebo identifies that Israel is well aware of this special status and quotes a senior member of the IDF corps, declaring that ‘we in Israel are in a key position in the development of customary international law.’94 Vitrebo also documents the transfer of legal knowledge, especially between Israel and the USA in advancing practices that are not accepted by international law in order to present them as customary, for example the concept of ‘Unlawful Combatants’95 who are neither combatants and not civilians. Evidence of the impact of the Israeli legal system in terms of international law can be found everywhere. Just as an example, when examining two of the most extensive works on IHL in recent years, the new commentary by the Geneva conventions96 and the ICRC study on customary international law,97 the number of references to Israeli national court cases are second only to the US national court cases. These referred cases include rulings of the Israeli Supreme Court in relation to decisions of the Israeli Military Courts and even cases of the Israeli Military Court of Appeals itself.98 7. Conclusion The Israeli military court system is active and produces hundreds of elaborated judgments each year. The current political situation in Israel/Palestine does not provide a lot of hope that there will be a dramatic change in the coming years that will bring an end to the military occupation and its Military Courts. Although at the moment, there is no major direct influence by Israeli Military Court decisions on International customary law, the potential for such future influence is great because of a few developments. The first development is that the court is more and more inclined to deal and write about international law,99 especially since its decision from 2006100 that ruled that international humanitarian law is a higher norm than military commander legislation. The second development is the Israeli Supreme Court’s growing reluctance to examine decisions by the Military Court of Appeals, which makes them final and binding decisions. The third development is that the issue of occupation has resurfaced in recent years, in different areas outside of the Israeli Palestinian conflict,101 and there is a growing need for relevant Jurisprudence. That need for Jurisprudence, together with the Israeli Military Courts growing tendency to produce such rulings and the general growing interest in the Court could lead to a greater influence by the Court on the international customary law. This research and its findings present the dangers that such potential acceptance might have on the development of the law. The decisions of the military courts can appear sometimes as well analyzed and thorough and the Courts’ 50 years of existence and continuous output can be perceived as a testimony to a customary behavior. But the identification of the court rulings as a tool to apologize for the actions of the army, as Weill102 defines it, or as tool to answer for the needs of the army, as Luban103 defines it, together with the observation that the rulings might be written as part of the Israeli PR struggle or as an internal impression management tool to maintain the system, renders the rulings meaningless. It is therefore important to remember that the Israeli Military Courts’ rulings are the product of a biased court that uses, twists and changes and denies the application of international law for the sole purpose of obeying its master’s voice and thus cannot be the basis for a serious discussion on international law norms. Acknowledgement I wish to thank Prof Ray Murphy (NUI Galway) for his kind support, guidance and advise. I also wish to thank my anonymous reviewers for their comments and suggestions. Footnotes 1 ‘The Military Court Unit (Judea and Samaria)’. From the author’s database. 2 Geneva Convention, relative to the Protection of Civilian Persons in Time of War, 75 UNTS 287, 1949. Hereafter: The 4th Geneva Convention. 3 The initial 5565 rulings contain all the published rulings available on the major Israeli legal database web sites: ‘Nevo - Legal Data Base’ (Nevo.co.il, 1993) <https://www.nevo.co.il/> and ‘Takdin—Legal Data Base’ <http://www.takdin.co.il/> plus rulings from the author’s personal archive> accessed 15 February 2018. 4 The choice of words was created in order to spread the widest net possible, in order to capture as many cases as possible. It is unlikely that a ruling from the Military Court of Appeals, that seriously discusses international law, will not appear in this research. 5 The search yielded 212 out of the 5565 published rulings of the Military Court of Appeals. Of these 212, 108 cases were not relevant as the term was mentioned briefly without any proper discussion in the ruling itself. The other 104 cases, however, contain justifications referring to international law, which are further analyzed in this research. The research analyzes the cases according to their type, the category of international law that was used in them, their outcome and their participants. 6 Convention (IV) Respecting the Laws and Customs of War on Land and its Annex: Regulation Concerning the Laws and Customs of War on Land 187 CTS 227 1907. Hereafter: The Hague Regulations. 7 On the differences and similarities between art 64 of Geneva and art 42 of The Hague Regulations, see R St J Macdonald and G Von Glahn, ‘The Occupation of Enemy Territory: A Commentary on The Law and Practice of Belligerent Occupation’ (1961) 27 The Canadian Journal of Economics and Political Science 113. 8 Y Arai-Takahashi, ‘Law-Making and The Judicial Guarantees in Occupied Territories’ in A Clapham, P Gaeta and M Sassòli, The 1949 Geneva Conventions - A Commentary (1st edn, OUP 2015) 1421; Y Dinstein, The International Law of Belligerent Occupation (CUP 2009) 108–16. 9 The question of the applicability of human rights treaties in a situation of occupation has been greatly discussed by academics for more on this see: M Sassòli and LM Olson, ‘The Relationship Between International Humanitarian and Human Rights Law Where it Matters: Admissible Killing and Internment of Fighters in Non-International Armed Conflicts’ (2008) 90 International Review of the Red Cross 599; O Ben-Naftali, International Humanitarian Law and International Human Rights (OUP 2011); D Kretzmer, R Giladi and Y Shany, ‘International Humanitarian Law and International Human Rights Law: Exploring Parallel Application’ [2007] SSRN Electronic Journal 306. 10 Proclamations Orders and Appointments of the IDF Forces Headquarters in the West Bank (West Bank booklets of publications IDF, 1967). 11 The ‘Order Regarding Security Provisions’ had a few life cycles but the most important ones are, Order 378 that was valid from 1970 to 2009—Order Regarding Security Provisions; and Order 1651, which is the new codified version that came into being in 2009 and is valid up to today—The Codified Order Regarding Security Provisions. 12 The most recent is Military Order No 1799 that was published on 28 June 2018. 13 L Yavne, ‘Backyard Proceedings’ (Yes Din 2007) <https://www.yesh-din.org/en/backyard-proceedings/> accessed 2 July 2018. 14 In the Israeli legal system, any citizen or resident of Israel can petition directly to the High Court of Justice on specific subjects relating to the relationship between the state and its residents. In 1968, the Israeli authorities granted residents of OPT the same right. 15 1987–1991. 16 A Strashnov, Tsedeḳ Taḥat Esh (Yedi‘ot aḥaronot 1994) 144. 17 S Krebs, ‘Lifting the Veil of Secrecy: Judicial Review of Administrative Detentions in the Israeli Supreme Court’ (2012) 45 Vanderbilt Journal of Transnational Law 639. 18 For more about the courts selective jurisdiction decisions see: S Weill, ‘The Judicial Arm of the Occupation: The Israeli Military Courts in the Occupied Territories’ (2007) 89 International Review of the Red Cross 399. 19 On some administrative issues the military courts still have jurisdiction over Israeli settlers. 20 For most recent references, see O Ben-Naftali, M Sfard and H Viterbo, The ABC Of The OPT (1st edn, CUP 2019); A Gross, The Writing on the Wall: Rethinking the International Law of Occupation (CUP 2017); D Kretzmer, The Occupation of Justice: The Supreme Court of Israel and the Occupied Territories (State University of New York Press 2002); E Benvenisti, The International Law of Occupation (OUP 2012); Dinstein (n 8); M Karayanni, Conflicts in a Conflict: A Conflict of Laws Case Study on Israel and the Palestinian Territories (OUP 2014). 21 M Shamgar, Military Government in the Territories Administered by Israel 1967–1980 (Hebrew University Jerusalem, Faculty of Law, The Harry Sacher Institute for Legislative Research and Comparative Law 1982). 22 Z Hadar, Israeli Legislation and Jurisdiction in the Spheres of Military Law and Military Government (Hebrew University 1973). 23 Strashnov (n 16). 24 Z Lekach, ‘Human Rights in the Military Courts’ in A. Bendor (ed.) Mordehai Karmnitzers Book (1st edn, Nevo 2017); N Benisho, ‘The Criminal Law in Judea Samaria and Gaza: Overture and Trends’ (2004) 18 Mispat Vet’sava. 25 For more examples, see Addameer Prisoner Support and Human Rights Association (2008); Addameer,Presumed Guilty: Failures of the Israeli Military Court System: An International Law Perspective, Addameer Prisoner Support and Human Rights Association (2009); B’tselem—The Israeli Information Center for Human Rights in the Occupied Territories, Law Enforcement on Israeli Civilians in the Occupied Territories (1994); Yavne (n 13); B'tselem - The Israeli Information Center for Human Rights in the Occupied Territories, No Minor Matter—Violation of the Rights of Palestinian Minors Arrested by Israel on Suspicion of Stone Throwing (July 2011); B’tselem, The Israeli Information Center for Human Rights in the Occupied Territories, Presumed Guilty: Remand in Custody by Military Courts in the West Bank (N Baumgarten-Sharon and Y Stein 2015) <http://www.btselem.org/download/201506_presumed_guilty_eng.pdf> accessed 12 November 2018. 26 L Hajjar, Courting Conflict (University of California Press 2005). 27 K Cavanaugh, ‘The Israeli Military Court System in the West Bank and Gaza’ (2007) 12 Journal of Conflict and Security Law 197; Kretzmer (n 20) 32; Weill (n 18) 417. 28 H Viterbo, ‘Rights as a Divide-and-Rule Mechanism: Lessons from the Case of Palestinians in Israeli Custody’ (2018) 43 Law & Social Inquiry 764. 29 S Ben-Natan, ‘The Application of Israeli Law in the Military Courts of the Occupied Palestinian Territory’ (2014) 43 Theory and Criticism 45. 30 E Benvenisti, ‘Judicial Misgivings Regarding the Application of International Law: An Analysis Of Attitudes of National Courts’ (1993) 4 European Journal of International Law 159. 31 S Weill, The Role of National Courts in Applying International Humanitarian Law (OUP 2014). 32 ibid 13–67. 33 ibid 69–114. 34 ibid 12. For more, see also R Shamir, ‘“Landmark Cases” and the Reproduction of Legitimacy: The Case of Israel’s High Court of Justice’ (1990) 24 Law & Society Review 781. 35 ibid 69. 36 A Bianchi, ‘Serious Violations of Human Rights and Foreign States’ Accountability before Municipal Courts’ in Man's Inhumanity to Man: Essays on International Law in Honour of Antonio Cassese (Kluwer Law International 2003). 37 AJ Pierre and TM Franck, ‘Political Questions/Judicial Answers: Does the Rule of Law Apply to Foreign Affairs?’ (1992) 71 Foreign Affairs 196. 38 Benvenisti (n 30). 39 For example, see the analysis in M Sfard, The Wall and the Gate (Metropolitan Books 2018) that examines HCJ decisions on the separation wall and shows how Court rulings about limiting the possibilities of the army to choose the path of the wall helped in legitimizing the construction of the wall. 40 Weill (n 31) 176–79. 41 ibid 158–76. 42 The choice to limit the study to the rulings of the Military Court of Appeals stems from several reasons. First, prior to the establishment of the Appeals Court in 1989, there are almost no published rulings dealing with international law (the research identified only eight cases). Second, prior to the establishment of the Appeals Court, most of the prominent cases found their way to the Israeli High Court of Justice, a practice the High Court of Justice blocked after the establishment of the appeals court. Third, the nature of the Military Court of Appeals, as an appeals court, is to issue reasoned and elaborated decisions, where the possibility of finding an in-depth legal discussion is greater. 43 See the discussion on the ‘Swartz’ case. 44 The Military Courts in Judea and Samaria, ‘Yearly Statistics Reports—2007–2016’ (IDF 2016). From the author’s database. 45 Z Lekach and A Dahan, ‘99% Conviction Rate In Israel - Distortion of Justice or Just Distortion of Statistics?’ (2010) 5 Haifa Law Review 185. 46 All administrative cases deal with the legality of personal military orders issued by the Military Commander against a person regarding his freedom or his possessions, so the model of plea bargains cannot apply to them. 47 Mainly legislation about fortification of property and about release on parole from prison. 48 For example see: 1643/05 (Appeals) Jamal Alhiga v The Military Prosecutor [2011] Military Court of Appeals (Military Court of Appeals), where the judge refers to a Talmudic text in Aramaic. 49 For more on this, see: Ben-Natan (n 29). 50 Courts 'Yearly Statistics’ (n 44). 51 This research could not find any statistics about the success rate of cases involving Jewish Israelis in the courts, and therefore cannot determine if the results exceed the average in cases that involve Jewish Israelis. 52 1779/08 (Appeals) Ahmed Hasin v Military Prosecutor [2008] Military Court of Appeals (Military Court of Appeals). 53 Weill (n 31). 54 Eighty percent of the rulings of the Military Court of Appeals that alluded to international law were written by only seven different judges. All of them switch between different approaches when it comes to international law in their rulings so this research could not identify any judge with a specific and consistent approach to international law. 55 See Figures 4 and 5. 56 Hasin case (n 52). 57 A good example could be cases involving settlers’ interests. 58 This observation of the judges’ behavior is, of course, not new and is one of the corner stones of legal realism, which sees judges as humans whose legal decisions are frequently influenced by extra-legal factors like preferences and values. For more about this highly discussed matter: B Leiter, Legal Realism and Legal Positivism Reconsidered (OUP 2007). 59 The court’s technique to avoid a discussion on international law in a court whose jurisdiction is based on international law, is to narrow the scope of the case. For example, in the cases against the leaders of the protest against the separation wall, the leaders brought up arguments from international law regarding the legality of the wall, and the right to protest. The Court of Appeals ruled that the only relevant question is the specific behavior of the specific defendants in the specific demonstration, therefore avoiding questions on international law; 1947/10 (Appeals) Military Prosecution v Adib Abu Rahma [2011] Military Court (Military Court). 60 Hasin case (n 52) . 61 D Luban, ‘Military Necessity and The Cultures Of Military Law’ (2013) 26 Leiden Journal of International Law 315. 62 ibid, para 3.6. 63 R Shehadeh, ‘Occupier’s Law and the Uprising’ (1988) 17 Journal of Palestine Studies 24. 64 Hajjar (n 26). 65 Cavanaugh (n 27). 66 Weill (n 26). 67 Ben-Natan (n 29). 68 Hajjar (n 26). 69 ibid 189: ‘Palestinian defendants tended to narrate their experiences in the court system in a language of exclusion, helplessness, ignorance, and passivity. They became, in that institutional setting, objects.’ 70 C Magen and E Lapid, ‘Israel’s Military Public Diplomacy Evolution: Historical and Conceptual Dimensions’ (2018) 44 Public Relations Review 287. 71 ‘The Military Court Unit (Judea and Samaria)’. From the author’s database. 72 Although Impression Management has its origins in sociology, such as in the works of Erving Goffman (E Goffman, The Presentation of Self in Everyday Life (Anchor Books/Doubleday 1959), it is also rooted in the literature of organizational psychology: BR Schlenker, Impression Management. The Self-Concept, Social Identity and Interpersonal Relations (Brooks/Cole Publishing Company 1980). 73 MR Leary and RM Kowalski, ‘Impression Management: A Literature Review and Two-Component Model’ (1990) 107 Psychological Bulletin 34. 74 Schlenker (n 72). 75 DP Bozeman and K Michele Kacmar, ‘A Cybernetic Model of Impression Management Processes in Organizations’ (1997) 69 Organizational Behavior and Human Decision Processes 9. 76 Although this research has examined all the published Military Court of Appeals cases from its establishment in 1989, 90% of rulings that are longer than five pages, are from 2001 on. 77 Benisho (n 24). 78 Lekach (n 24). 79 Yavne (n 13). 80 Krebs (n 17), shows that, in 10 years, out of 288 petitions against the Military Court of Appeals to the Israeli Supreme Court regarding administrative detentions, only one was accepted. 81 For example: 5373/15 Muhamad Nawara v The Military Court of Appeals [2015] HCJ (HCJ) 7. 82 The Gilad Shalit prisoners deal followed a 2011 agreement between Israel and Hamas to release Israeli soldier Gilad Shalit in exchange for 1027 Palestinian prisoners. 83 arts 184–186 of the codified Order Regarding Security Provisions. 84 In 1762/12 (Appeals) Sharawne v the Military Prosecutor [2012] Military Court of Appeals (Military Court of Appeals). The Court ruled, that because the committee is, in practice, a parole committee, then secret evidence is enough to rule that someone committed a crime and that the international law right to be informed of the nature and the cause of the accusation are not relevant to this process. This is again a classic apologetic approach by the Court in order to submit to the needs of the Military Commander. 85 716/13 Sharawne v the Military Court of Appeals [2013] HCJ (HCJ). The appeal was rejected without a substantive discussion. 86 The 12th Amendment to the Parole Law (2001). 87 The application of this legal mechanism in Israel means that Israel can activate it against Palestinians with Israeli citizenship who were released as part of the deal. 88 Dinstein (n 8) xii Preface. 89 ibid. 90 Ben-Naftali (n 9). 91 ibid 5. 92 M Sassòli, ‘Concept and the Beginning of Occupation’ in Clapham, Gaeta and Sassòli (n 8) 1392. 93 ibid. 94 Ben-Naftali (n 9) 103. 95 ibid 112. 96 Clapham, Gaeta and Sassòli (n 8). 97 J-M Henckaerts, L Doswald-Beck and C Alvermann, Customary International Humanitarian Law (CUP 2005). 98 Both are referring to the POW status case of 4/69 (Ramalla) The Military Prosecutor v Omar Kassem Military Courts (Military Courts). 99 Most of the cases in this study are from the last 10 years. 100 05/06 (Appeals) Swartz v The Military Commander [2006] Military Court of Appeals (Military Court of Appeals). 101 Such as the 2003 military occupation of Iraq by the US-led coalition forces; Ethiopia’s 2006 occupation of part of Somalia, Nicaragua’s occupation of Isla Calero in 2010 and Russia’s occupation of parts of Georgia in 2008 and Crimea in 2014. 102 Weill (n 76). 103 Luban (n 61). © Oxford University Press 2019; All rights reserved. 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Journal of Conflict and Security LawOxford University Press

Published: Apr 1, 2020

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