Separation of powers, a fundamental democratic principle, does not exist in the Israeli military law system. Instead, an Israeli military commander has legislative, judicial and executive authority over the occupied Palestinian territory. An Israeli military commander unilaterally issues military orders, determines how they will be applied and enforces each order with the might of Israel’s army and governmental authority. Palestinians have no democratic input into the military orders that control their daily lives. Israeli military orders are not laws, though they function as such and are intended to give a legal veneer to the institutionalized system of discrimination.
Israeli military law does not seek to administer justice. The Israeli military law framework is a tool for legitimizing oppressive practices and punishing the Palestinian population. Acting in accordance with or implementing unjust and discriminatory military laws does not absolve an individual from responsibility or add any value to the law itself.
The Israeli military court system is designed to protect “Israel’s security", more specifically the security of Jewish-Israeli citizens above all else. Israel retains the right to maintain “public order” and control the occupied Palestinian territory through the criminalization and punishment of all forms of Palestinian resistance to the Israeli occupation, regardless of its gravity and violent or non-violent nature.
The Israeli military court system exists to prosecute Palestinians arrested by the Israeli army in the West Bank accused of committing 'security' and other offences. The military law and the emergency law applicable in the Israeli military courts includes a variety of offenses common to domestic criminal codes, but also includes more occupation-related or political offences including membership to a banned organization or participation in protests. Israeli military law denies basic and fundamental fair trial rights and fails to respect standards of international law.
The scope of Israel’s military law system is extremely wide, affecting all aspects of Palestinian daily life. All Palestinians living in the occupied Palestinian territory are ruled by military law in various ways.
Israeli officials and pro-Israel organizations claim that Israel is a “democratic, Jewish state” and the narrative of “security” is relied on heavily when perpetuating this idea. The “security” narrative is used to justify the disruption, intrusion and destruction of Palestinian lives preventing any sense of normalcy.
The issue of “security” overlaps with various Israeli policies, political and economic, concerning Israel's relationship with neighbouring and foreign countries. The “security” factor regularly appears in Israel's political statements, whether at the domestic, regional or international level. With “security” as the justification, Israel has managed to pass several domestic policies that legitimize practices violating universal human rights principles and obligations.
Israel promotes the concept of “security” as a neutral notion, but in reality the rights of Jewish-Israeli citizens are protected without any consideration for the violations implemented to achieve that objective. Israel regularly claims that the environment in which Israel is located is a hostile one and, therefore, necessitates the systematic domination and subjugation of Palestinian rights. Israeli military law is used as a tool to further a prejudiced “security” of Jewish-Israeli interests over Palestinian rights.
Incarceration and Control
The Israeli military court system was created when Israel occupied the West Bank, including East Jerusalem, and the Gaza Strip in June 1967. The military court system is part of the Israeli military administrative system designed to govern and control the Palestinians living in the occupied Palestinian territory. It began with the occupation and will continue as long as Israel continues its occupation of Palestinian territory.
The primary form of subjugation and control of Palestinians living in the occupied Palestinian territory has been and continues to be mass arrests. Since the start of Israel’s occupation in 1967, the Israeli army arrested hundreds of thousands of Palestinians, including men, women, and children and systematically prosecuted them in Israeli military courts.
Although arrest, trial and detention are components of administering justice in legal systems all around the world, the Israeli military court system is not interested in administering justice. The Israeli occupation is about control and the military court system is used to implement that control. The rate of arrests among the Palestinians throughout the prolonged Israeli occupation is high by all standards. During periods of political tension in the occupied Palestinian territory including the first and the second intifada, arrest rates among Palestinians were the highest in the world as a percentage of population.
Rates of detention are not always an indication of the prevalence of crime, or punishment indicating violations of the law. However, it can indicate how the law is used to control a population. Analysing the boundary between ‘legal’ and ‘illegal’ acts is important for such an understanding. Where the law criminalizes many acts and behaviours, including those that fall within universally protected human rights norms, is itself an indication that the laws are unjust. While Israeli military law considers mass arrests of Palestinians to be ‘legal’, this does not equate with justice given the fact that the law itself is discriminatory and fails to ensure basic and fundamental due process guarantees. Such laws are also designed to restrict individuals’ rights to protest peacefully.
Military Law and the Rights of the Child
The Israeli military court system has undergone a few cosmetic upgrades over the last three years, which have not affected the nature of this system designed, as it is, to control and subjugate instead of administer justice. Specific changes include procedures related to children such as the establishment of a juvenile military court, which raised the age of majority from 16 to 18 years and reduced the period of appearance before the judge for the first time. These amendments have not delivered any new rights to child detainees or additional protections that would actually attempt to end the widespread and systematic practice of ill-treatment and torture of Palestinian children during arrest and interrogation.
The recent amendments to military law failed to reduce the period of imprisonment that can be imposed on children. They failed to provide bail for the release of children during legal proceedings. By default, the majority of Palestinian children taken into the Israeli military court system are held in pre-trial detention for the duration of legal proceedings against them.
The bottom line is that any legal system designed to control and subjugate is not capable of administering justice, and the military law amendments discussed do not alter the purpose or nature of the Israeli military law framework. It aims to suppress the legitimate aspirations of the Palestinian people for liberation and self-determination. The systematic discrimination in law and its enforcement is an essential feature of this system. Furthermore, a legal system that is discriminatory does not take into consideration the best interest of the child, given that Israel's first and last concern is to maintain the "security" and public order with its vast implications – limitations on individuals' ability to exercise their freedoms and basic rights. In short, as St. Augustine wrote: “An unjust law is no law at all.” It is in the spirit of law to confront and break unjust laws.