How Israel’s Military Courts Enable the Occupation to Flourish

Joseph Dana

Since Israel took over the West Bank and Gaza Strip in 1967, the country has obfuscated the exact nature of its regime in the Palestinian territories. In the early days of the occupation, Israel was racked by internal debate over whether to give back the captured territories in exchange for a peace agreement or annex them. With no clear consensus, Israel’s leadership instead created institutions of military occupation and gave those entities non-military names to cloak the lie that the occupation was both temporary and humane. The main Israeli bureaucratic institution in the West Bank, for example, is called the Civil Administration. There is nothing civil about it, but this simple linguistic trick allowed the country to downplay the true face of its military rule.

Nowhere is this cognitive dissonance more noticeable than in the military court system. Shortly after the occupation began, Israel created a system of military courts to administer over the local population. Palestinians accused of security-related crimes, illegal protests or any form of resistance to the occupation have been arrested over the decades and forced to stand trial before the military court.

Court proceedings are in Hebrew, but there is an absence of properly trained Arabic translators. Evidence and confessions are obtained through aggressive interrogation that often crosses the line into torture. Since the state prosecution and military judges work closely together, the conviction rate in these courts is a remarkable 99 percent.

The recent case of Ahed Tamimi highlights the Kafkaesque and absurd nature of the military court system, but also raises questions about how a state can administer two radically different systems of law and still be called a democracy. Tamimi, a Palestinian teenager from the West Bank village of Nabi Saleh, was arrested in the middle of the night from her family home only to be hauled in front of a military judge and accused of attacking a soldier, organizing protests and using the internet to incite against Israel. The military judge in her case denied repeated requests for bail and even rejected requests from Tamimi’s lawyer to hold the trial in public.

With the odds heavily stacked against Palestinians, military courts have a remarkably high number of plea bargains. Indeed, Tamimi eventually accepted a plea bargain in which she will spend eight months in jail instead of three years, as the prosecution requested.

What does any of this have to do with Israel’s democratic institutions? For one, military judges sentencing young people to prison for the crime of non-violently resisting military occupation is unique in the modern world, especially in the community of democratic countries. Israel has invested ample resource in its image as an “enlightened democracy” in the Middle East. Israeli supporters regularly cite the country’s judicial system as one of the country’s crowning achievements. The Israeli High Court’s rejection of several occupation-related cases, including the route of Israel’s separation barrier in the West Bank, have been used as evidence that the rule of law is respected. As such, a quick plea bargain in the Tamimi case that disappears the story from international headlines aligns nicely with Israel’s long-term interests.

Israel fears widespread and honest debate about the separate and unequal treatment of people under its rule, based on ethnicity. It is the sole power governing all life between the Mediterranean Sea and the Jordan River. In that territory, it has set up a dual legal system that exercises different laws based on ethnicity: Jewish Israelis are subject to a Western legal system; West Bank Palestinians, on the other hand, are subject to a military legal system where evidence is regularly obtained through coercion and torture.

Tel Aviv could rectify this problem by extending civil court jurisdiction to the Palestinian areas it occupies, but such a move would be tantamount to annexation and curb the country’s ability to use the legal system to suppress Palestinian dissent. Ultimately, this parallel legal system undermines the democratic legitimacy Israel has worked so hard to have the world recognize. As such, the use of military courts for an extended period of time with no expiration date erodes Israel’s own claims as a sovereign democratic state. How can anyone reconcile these two judicial systems administered by one state?

The harsh truth is that without substantial outside pressure, Israel will not abandon military courts or the occupation as a whole. Most Israelis have no idea how the military court system operates or how Palestinians effectively lose their human rights when thrown before a military judge. Moreover, the court system has been effective for Israel’s long-term goal of suppressing Palestinian dissent. While there have been outbreaks of violence to Israeli rule, Tel Aviv has been able to entrench its West Bank footprint and expand its settlement infrastructure unabated since 1967.

The courts have been a quiet but critical part of constructing this reality.

Joseph Dana, based between South Africa and the Middle East, is editor-in-chief of emerge85, a lab that explores change in emerging markets and its global impact.