For the most part, the military legal system is based on incrimination; few culprits are actually caught in the act. Solid evidence is rare. Most arrests are made on the basis of interrogations in which detainees inform on neighbors, classmates, friends and acquaintances. The methods of interrogation (sleep deprivation, threats, isolation, and intimidation) bring detainees to the courtroom after they have admitted to the charges. Armed with names culled from the interrogations, soldiers invade the villages at night, routing men and boys from their beds and arresting them. The Palestinians have dubbed the army’s list of names “the grocery list”.
It is a detainee’s basic right to know the charges against him and to understand the language of the record of the interrogation before being asked to sign a statement. The record is written in Hebrew, a language most detainees do not speak. The interrogations are conducted in spoken Arabic, but the interrogators record the procedure in Hebrew; that document is later presented to the detainee to sign. Thus, the detainee signs a document written in a language he neither speaks nor reads.
A detainee has a right to an attorney, but the General Security Service can prevent a detainee from meeting with an attorney for security reasons. The law permits such prevention of legal counsel for up to 30 days, and a judge can further extend it to 90 days. Sixty percent of detainees are barred from seeing an attorney during the most harrowing period of their detention: when they are being interrogated. Even when they have engaged an attorney, he/she is forbidden to see the client’s file during that period because the file, according to the investigators, contains classified material.
A plea bargain is the fastest way to bring the legal process to conclusion. A legal process that includes deposing and examining witnesses to adduce evidence is a lengthy process whose outcome cannot always be predicted. According to the law, when the accused is an adult and charges involve security violations, detention until the conclusion of the legal proceedings can take up to two years.
A plea bargain is a contingent on the admission of guilt. The prosecutor offers the accused reduced penalty in exchange for accepting one or more of the charges. The specifics of the deal – admission and penalty – are usually determined during negotiations between the military prosecutor and the defense attorney. If the two sides agree on the terms of the plea bargain, the judge approves the deal which, in most cases, is identical to the prosecutor’s proposition.
It is important for the military justice system to create the impression that the many arrests that the army carries out are justified and based on real crimes and violations. In 2010, 9542 cases were processed through the military courts. Only 82 of them were evidentiary hearings with testifying witnesses; only 25 (i.e., 0.26% of the total number of cases) ended in the full acquittal of the defendant. The higher the percentage of confessions, the more reliable and trustworthy the proceedings of the courts appear to be. However, whether there is a plea bargain or a lengthy evidentiary process, most detainees remain in custody until the conclusion of the proceedings, that is until a sentence is handed down. This procedure in itself constitutes punishment before a verdict. The principle of “innocent unless proven otherwise” does not obtain in the military courts, for being held in detention until the end of the process is, in essence, punishment before sentencing.
One of the most common charges in the military courts is “membership and activity in an unlawful organization”. Hamas and the Popular Front are prohibited, hence they are illegal. But not only political parties fall into this category; so do student organizations, administrations of orphanages, charities, Islamic study groups, summer camps – any agency or association that has or may possibly have some link with Hamas. A broad spectrum of social and cultural activities are suspected of proscribed terrorist activity and are, thus, branded illegal.
The punishment meted out by the military courts has three components: time served(imprisonment for months or years), probation (also lasting months and years) and monetary fine(something that does not exist in the Israeli system). A fourth punishment, not specified in the sentences handed down by the justices, fall under the purview of the police and is carried out according to criteria set by the Chief of Police: no entry permit into Israel is issued to convicted Palestinians even after their release, especially as long as a suspended sentence is in effect. Palestinians from the Occupied Territories who have been convicted and served time are particularly vulnerable, as during that period after their release they have no chance of obtaining a work permit or any other permit that involves entering Israel. This prohibition often lasts longer than the period of penalty or probation.
The majority of Palestinians from the Occupied Territories who have been detained, suspected, charged, tried and convicted in the military courts provides an inexhaustible reservoir for the civil administration to deprive Palestinians of entry permits into Israel. This brings us back to the issue of violation of the freedom of movement mentioned in the opening paragraph.