ICC and Palestine Symposium: ‘Imprisoning’ Self-Determination–The Israeli Military Law Enforcement System in the West Bank and Its Relevance for the ICC

[ Luigi Daniele is Lecturer in Law at Nottingham Trent University, where he leads the undergraduate and postgraduate modules in International Humanitarian Law.]

For more than a decade international lawyers have been debating Israel’s claim against the jurisdiction of the International Criminal Court (ICC) over the situation in Palestine, notoriously based on the argument that no Palestine State exists since ‘the Palestinian Authority lacks effective control over the territory concerned’. The Office of the Prosecutor (OTP), in its recent request pursuant to article 19(3) (‘request’), argues, in line with the numerous findings of the international community, that this lack of effective control stems from Israel’s own wrongful acts in the occupied Palestinian territory (oPt). Therefore, according to the Prosecutor, no validity can be conferred to the illegal situation resulting from the Israeli unlawful policies in the territory it occupies (ex iniuria jus non oritur). The request correctly underlines that these policies, such as settlements’ expansion and the construction of the wall, have impaired both Palestine’s viability as a State and the ability of the Palestinian people to exercise their right to self-determination. However, the OTP does not mention the institutional branch of the Israeli occupation which has prevented Palestinians from exercising fundamental implications of their right to self-determination, i.e. the Israeli military law enforcement system established in 1967.

This system appears to present ineludible profiles of relevance for the ICC’s assessment of the situation in Palestine, included the likely large-scale perpetration of specific international crimes which the OTP request, unconvincingly, only considers as potentially committed by Palestinian armed groups.

The ‘Draconian’ Law of the Military Courts

The Military Courts’ system enforces a substantive legislation that reveals how the impairment of the Palestinians’ ability to exercise their right to self-determination has been an endeavour pursued through mass criminalization and incarceration.

This military law (counting more than 2500 orders since 1967) targets many aspects of Palestinian individual and collective life, including political expression; association; protest and movement, and imposes extremely severe prison sentences for any conduct deemed to threaten – actually or potentially – the security of the occupying forces and the public order.

The 2009 Security Provision Order (SPO), consolidated version of the military orders in force, is characterized by indeterminate offenses with all-encompassing definitions, accompanied by disproportionate sentencing frameworks, contrasting with the fundamental principles governing punitive powers in every legal order governed by the Rule of Law.

The SPO subjects, for example, whoever ‘attempts, orally or otherwise, to influence public opinion […] in a manner which may harm public peace or public order’, as well as whoever carries out an action expressing sympathy for an unlawful association (such as the Palestinian Liberation Organization), ‘by flying a flag, displaying a symbol or slogan or playing an anthem or voicing a slogan, or any similar explicit action clearly expressing such […] sympathy’, to ten year imprisonment.

Every person who throws an object, ‘in a manner that […] may harm traffic in a transportation lane’ or ‘at a […] property, with the intent to damage the property’, therefore without necessity for the damage to effectively result from the action, is liable to ten years imprisonment.

Moreover, the Order sanctions members of a group in which one or more of its members have committed offences such as carrying weapons, thus on the basis of the mere membership and due to the conduct of the other members, with life imprisonment.

The military law enacted also punishes forms of solidarity, criminalizing those who do not immediately denounce another person when there are ‘reasonable grounds to suspect that the person is committing or planning to commit an offense’ under the SPO. As a consequence, every Palestinian not denouncing a person planning to ‘attempt to influence public opinion’ against the occupation, or who is ‘planning to voice a slogan’ that expresses sympathy for a hostile organization, will therefore be liable to punishment.

The combined effect of such norms generates an authoritarian repressive system that – rather than protecting security and public order – renders every Palestinian under occupation a potential criminal. The Military Courts’ system is the main tool to strip the Palestinians in the oPt of their right to assembly, to protest, to express their views, to renew their political life, and ultimately to mobilize for their self-determination.

Legal Apartheid?

Furthermore, in five decades of operation, the Military Courts have subjected Palestinians to a policy of systematic ‘legal’ discrimination based on ethnicity and nationality.

Military Courts – in which judges and prosecutors can be members of the same IDF units – enforce military law against Palestinians, while Israeli civilians and settlers are subject to the Israeli civil law irrespective of whether their conduct took place in any area of the oPt.

This discriminatory legal dualism is pervasive.

Under Israeli civil law, for example, a ‘minor’ is any person under the age of 18. By contrast, military legislation until 2011 defined a Palestinian over the age of 16 as an adult. The 2011 amendment to the SPO changed the definition of ‘minor’ as to designate those under the age of 18, but only in relation to adjudication proceedings. For the purpose of arrest, detention and interrogation, the age of majority is still 16, with Military Order 132 allowing Palestinian children as young as 12 years old to be tried in Military Courts. The same inequality is exemplified by the differences in the maximum period of detention before being brought to a judge (24 hours in Israeli domestic law, compared with 8 days under military orders), or the maximum period of detention without access to a lawyer (48 hours under Israeli domestic law, against 90 days under the military orders).

The legal discriminations are then aggravated by the unequal law enforcement policies. Organizations denouncing settlers’ violence against Palestinians, for example, have reported that – in ten years of activity – 85.3% of the investigations have been closed due the failure to locate suspects or to collect sufficient evidence; just 7.4% of investigations yielded indictments against suspects and just in one-third of these legal proceedings brought about convictions. In sum, the likelihood that allegations of violence against Palestinians in the oPt will lead to conviction of the suspect is just 1.8%.

Human rights organizations applying to the Military Courts system and demanding investigations for hundreds of incidents in which Palestinians were harmed by Israeli soldiers, reported that upon nearly 750 cases submitted, in a quarter of cases no investigation was launched, in nearly half cases the investigations were closed with no further action, and only in very rare instances (25 cases), charges were brought against the soldiers.

In contrast, the conviction rate of those who are charged in the Military Courts’ system is of approximately 90 to 95%, with some annual records arriving at 99.74%. 

The Military Courts’ system enforces de facto a form of ‘legal’ apartheid, openly disregarding and abolishing the principle of equality before the law.

The military law enforcement system, in addition, raises serious concerns for the systematic recourse to administrative detention, controversial praeter delictum measures intended to prevent the danger of a future offence, in which no formal charge is issued against the suspect and often no evidence is disclosed in the hearings before military courts due to security concerns. Not only administrative detainees do not normally know for how long they will be detained and when they will be released (with NGOs denouncing this condition as psychological torture), but there is no temporal restriction on the total duration of their detention (the maximum period of custody allowed under a single administrative detention order, in fact, is renewable by consecutive orders sine die). Administrative detainees, consequently, from the outset of the procedures, are denied the basic fair trial rights to which defendants in criminal proceedings are entitled, finding themselves in a legal black hole of arbitrariness, prompting scholars who have extensively analysed the issue to signal the international criminal relevance of this practice and to recommend to the OTP the opening of an investigation.

Conclusion: Wilful Deprivation of the Right to a Fair Trial.

Considering the Israeli military law enforcement system’s authoritarian features and its striking collision with international legal standards, it is surprising that – despite the emphasis on self-determination – the OTP request, when listing the potential crimes committed in the situation under scrutiny, explicitly mentions the crime of ‘wilfully depriving protected persons of the rights of fair and regular trial (articles 8(2)(a)(vi) or 8(2)(c)(iv))’, but only in relation to the possible commission by Hamas and Palestinian armed groups forces in Gaza.  

The numerous allegations (see, for example, here and here) of widespread and systematic use of inhuman and degrading treatment against people in the power of the Israeli military system, on the contrary, suggest that an expansion of the scope of the possible investigation of the ICC as to include scrutiny over the crimes potentially committed therein would be, never as in the present climate of the international political arena, an important step to recover from setbacks accumulated in years of unfulfilled promises and disappointing retractions of the Court before the challenges posed by the crimes of the powerful.

The Israeli military ‘justice’ system is estimated to have imprisoned more than 800.000 Palestinians, a sixth of the total population of the West Bank and Gaza. Condoning a system that criminalizes and imprisons ‘protected persons’ on the basis of the exercise of fundamental civil and political rights, would amount to reduce self-determination to a simulacre, resembling – mutatis mutandis – the ‘Bantustan’ version of Palestine that some world powers are suggesting for Palestinians to greet as their fully controlled ‘State’.