B’Tselem was set to publish early Monday a report that argues that pre-verdict detention of Palestinians in the IDF’s West Bank courts forces huge numbers of Palestinians into plea bargains and turns the whole system into a “hollow formality.”
The extremely thorough 41-page report, based on 260 case files, gathers an unprecedented amount of data from both independent and IDF sources on the topic and includes a myriad of quotations from hard-to-get IDF court opinions which explain a wide range of issues.
Quoting Judge Lt.-Col. Ronen Atzmon, who wrote: “Always remember that the primary rule is that suspects or defendants are entitled to their freedom, and one should not arrest them. Detention is the exception rather than the rule,” the human rights group says that judges’ actual application of the law has turned this principle on its head.
The overwhelming rule now, the report maintains, is for Palestinians to be detained until the end of their trial – the opposite of what Atzmon said should be happening.
The report says that the only real exception to this rule is that Palestinians charged for traffic violations are usually released pending trial instead of being detained pretrial.
According to the report, the impact of the extremely high percentage of pre-verdict detentions is to convince most Palestinians to plead guilty.
This is because if they try to fight the charges against them, they may end up being in jail longer, waiting for their trial to conclude, than if they just admit guilt and get a mild jail sentence, the report notes.
The Justice Ministry referred questions about the report to the IDF, and the IDF had not responded by press time.
The report puts the number of Palestinians from 2008-2013 in pre-verdict detention for up to a year at between 606 to 1,378, with 2013 rising back into the 1,300 range and over 151 being held for up to two years.
Also, the report gives a snapshot, provided by the IDF, of a period of pre-verdict detention motions and decisions in August 2014, with the IDF seeking and obtaining detention in 90 percent of the cases where the court made a decision.
“Every year, thousands of Palestinians are brought before military courts on various charges, including entering Israel without a permit, stone-throwing, membership in an ‘illegal association,’ violence, firearms-related offenses and traffic violations,” B’Tselem says.
“The military court has jurisdiction over residents of the entire West Bank, including areas over which partial control was transferred to the Palestinian Authority,” it continues.
B’Tselem explains that pre-indictment, there is extra justification to detain in order to question a suspect and perform an investigation without a suspect loose and able to tamper with the investigation.
Post-verdict, if a sentence has been handed down with jail time, the sentence justifies the detention.
But in between, the Israeli court opinions themselves, quoted by B’Tselem, maintained that Palestinians should not be detained unless they present a danger, are a flight risk, or pose a special risk to obstruct justice (such as witness intimidation during a trial). Rather, “they should be presumed innocent.”
Next, the report argues that judges were not really analyzing individual Palestinians’ circumstances on those three issues, but flatly applying a series of artificial presumptions which led to virtually all Palestinians being detained pre-verdict.
One opinion, written by Judge Col. Shaul Gordon in a case filed in 2001, B’Tselem views as a glaring violation of using presumptions that, B’Tselem would say, collectively punish individuals for actions they have not committed.
Gordon wrote about a Palestinian whose main crime was simply illegally crossing into Israel. The danger posed by the defendant, he wrote, “is not measured by his intentions but by the actual security breach his actions cause. I am ready to accept that… his actions… would not impose any special burden on security forces.”
However, Gordon then wrote that due to “the prevalence” of Palestinians illegally crossing the border, “the defendant and many others like him do impose a heavy burden on the security forces.”
He said that the distraction of these more minor border violators made it difficult for the IDF to focus its attention on catching hard-core terrorists trying to infiltrate Israel.
The report says that “the military prosecution routinely asks for remand in custody, and the courts approve the vast majority of the motions.”
Ultimately, B’Tselem says, the IDF courts talk about applying Israeli law in a way that “obfuscates the crucial differences between the Israeli justice system that operates inside Israel’s sovereign borders and the military courts operating in the West Bank.”
It argues that the military justice system’s “main contribution” is “not in providing broader protection for defendants’ rights or seeing justice done, but rather as a whitewash, glossing over the flaws of the military court system.”