Israeli institutions seek to obtain the benefits of the international legal order while refusing to accept the corresponding burdens and obligations.
By Gerard Horton
For some time now the Israeli army’s Military Courts’ Unit has distributed a five-page briefing paper to foreign delegations visiting military courts in the West Bank. The briefing paper is intended to persuade the reader that the military courts — which have been used to prosecute approximately 755,000 Palestinian men, women and children since 1967 — were established, and are currently operating, in accordance with international law. The document commences with the following statement:
The Military Courts in Judea and Samaria (hereinafter: ‘The Military Courts’) were established in accordance with international law, and have jurisdiction to hear ordinary criminal cases and cases involving security offenses.
This statement is significant because the only provision of international law that authorizes the prosecution of civilians in military courts is the Fourth Geneva Convention (the Convention). Under Article 64 of the Convention the penal laws of the occupied territory should remain in force, but may be temporarily suspended and replaced with military law in cases of security or in order to facilitate the application of the Convention.
In circumstances where military law has been imposed, Article 66 of the Convention provides that persons accused of violating the temporary measures can be prosecuted in “properly constituted, non-political military courts.” These are the legal provisions the Military Courts Unit is referring to when it asserts that Israeli military courts “were established in accordance with international law.”
However, in circumstances that can only serve to undermine the rule of law, the political, military and judicial authorities in Israel refuse to apply the same Convention, for example, in relation to settlement construction or the transfer of Palestinian detainees to prisons inside Israel.
Article 49 of the Convention provides that Israel is not permitted to transfer parts of its own civilian population into the territory it occupies, thus making all settlement activity in East Jerusalem and the West Bank illegal – a conclusion confirmed by the UN Security Council and the International Court of Justice.
Article 76 of the Convention prohibits the transfer and detention of Palestinian detainees outside occupied territory – a legal conclusion confirmed by the U.K.’s Foreign Office and senior government ministers. Be that as it may, approximately 90 percent of Palestinian prisoners continue to be transferred and detained inside Israel.
This gives rise to the untenable situation whereby Israeli institutions seek to obtain the benefits of the international legal order while refusing to accept the corresponding burdens and obligations. It may be that this inconsistency is of little concern in the region today, but no one should later express surprise if one day Israel finds that it has stumbled into pariah status.
Gerard Horton is a lawyer and co-founder of Military Court Watch. Gerard has worked on the issue of children prosecuted in the Israeli military courts for the past seven years and is the author of a number of leading reports on the subject.