Col. Netanel Benishu, the president of the Military Appellate Court for Judea and Samaria, has ordered the IDF West Bank prosecutor to allow Palestinian minors suspected of crimes to be screened by a social worker regarding issues relating to their character and rehabilitation, and releasing them on bail pending trial.
The decision, handed down a week ago, was a hard-fought victory for some defense lawyers and a rare rebuke by the army’s top West Bank court, of the IDF’s own prosecution.
Some have even cast the decision as a court reprimand for the prosecution, for being unwilling to use rehabilitation techniques for Palestinian minors who have committed crimes.
The Jerusalem Post has learned that the issue is not a zero-sum battle of being for or against rehabilitation, but rather about dividing the issue into meeting with a social worker post-conviction versus pretrial.
In recent years the IDF added post-conviction legal provisions to allow Palestinian minors convicted of crimes to meet with social workers, so that the court could consider aspects of their character, home environment and other factors in deciding whether punishment or rehabilitation better fit the case.
From a certain perspective, the IDF prosecution does endorse rehabilitation and review by a social worker once a defendant has been convicted and is being sentenced.
The court criticized the fact that there is no such pretrial provision, and was not saying that the prosecution opposes rehabilitation and meeting with a social worker across-the-board.
Why do the laws pertaining to Palestinian minors only provide for rehabilitation and meeting with a social worker post-conviction and not pretrial? As always there are two sides to the issue.
Critics of the IDF prosecution have it straightforward. They say that it is part of the insensitive mechanical occupation mentality of simply throwing all Palestinian minors behind bars to penalize them and to pressure them into accepting plea bargains in exchange for getting out of prison.
They note that Israeli minors in civilian courts can get screened by social workers both post-conviction and pretrial, and say this unequal comparison proves discrimination against Palestinian minors.
And the IDF court did criticize the IDF prosecutor.
But the complicated flip side says that while the IDF prosecution endeavors to keep the laws for Palestinian minors similar to those for Israeli minors, this is one area where the contexts are not comparable, and the law should be different. Civilian courts frequently order a middle ground of various forms of house arrest instead of either detention until the end of trial, or full release on bail.
House arrest essentially does not exist in the context of Palestinian minors. Within Israel proper, there are a number of ways to enforce house arrests, including surprise drop-in visits by police on an arrestee.
In the West Bank, the police and security forces have extremely limited movement and access, making enforcing house arrest an impossibility.
The IDF believes that, because of fundamental ideological differences, it cannot count on Palestinian parents to keep minors under house arrest as it can Israeli civilians, who themselves are more easily subject to prosecution for failing their duty.
As such, Palestinian minors who are not kept in detention until the end of trial, around 17 percent in 2013, are fully released on bail.
In other words, in this view, the court’s new precedent, allowing Palestinian minors to pay for and present in court private social worker reports at the pretrial stage, will not and cannot directly impact a minor’s rehabilitation – since the pretrial stage is not forward-looking like the post-conviction stage.
While the IDF prosecution provided for social worker evaluations and rehabilitation post-conviction, practically speaking fewer than a dozen Palestinians have taken advantage of this option even post-conviction.
It may simply be another tool for defense lawyers to argue for a full release of Palestinian minors and for courts to rely on, in ordering releases but with no rehabilitation obligations (which also would be unenforceable) attached.
The view that is sympathetic to the IDF prosecution explains that while the court’s ruling may make strong political headlines, it will hardly change facts on the ground, with most cases still being decided by plea bargains.
Whether the courts and defense lawyers will try to use this issue to change the balance of litigation in the West Bank courts or whether it will be a mere footnote in the bigger continuing legal battles between Israelis and Palestinians is a story yet to be told.