It’s not often that the president of the IDF West Bank military courts accuses
the IDF West Bank Prosecutor’s Office of “systematically” violating some
Palestinian defendants’ fundamental rights to a fair trial, including under the
But that is just what President Netanel Benishu did
in a July 24 decision, which was not widely disseminated to the press but was
acquired by The Jerusalem Post.
Moreover, Benishu did not suffice with
criticism of the particular case but said that the court had warned the IDF
prosecutor of this problem in the 2009 Hamad decision, and that “four years
later this issue is still left broken as it was, where the prosecution violates
its obligations to the defendants time after time.”
He then ordered the
IDF prosecutor to develop a new set of formal guidelines to avoid recurrence of
In a case already well known for the notoriety of the charges,
including the attempted murder of Tsiona Kalla, wife of famous singer Itzik
Kalla, in one of the worst West Bank stone throwing incidents, Benishu found
that the IDF prosecutor was “systematically” failing to provide notice to the
defendants’ lawyer, Ahlaem Haddad, of top-secret evidence that the IDF possessed
regarding the case.
The attack occurred on November 20, the defendants
Abd Hamamara and Ram’ah Hamamara were arrested on December 1 and they were
indicted on December 25.
The general rule is that the prosecution must
provide all evidence against a defendant and evidence that may be of use to
exonerate a defendant to the defendant upon filing an indictment against the
However, regarding classified evidence, which often arises in
terror-related cases involving an investigation by the Shin Bet (Israel Security
Agency), the prosecution may obtain an official certification that certain
evidence is classified.
According to official procedure, in such cases,
the prosecution must submit the certification to the defense upon the filing of
the indictment, and often the certification is accompanied by a censor-approved
“paraphrase” of the material.
In this case, the IDF prosecutor did not
submit the two certifications in the case to the defense until May 21 and May
30, with May 21 being one day before the trial was scheduled to begin.
should be noted that in the well-known 2010 Amar case and other cases, the
courts have said that it understands that it is not always realistic for the
certification to be filed simultaneously with the indictment and is ready to
allow a “flexible” stance on the issue for up to a couple of months.
flexibility exists in light of a recognition that it is difficult for the Shin
Bet to decide what can and can’t be disclosed until it knows what the charges
are, at which point consultations are held which should be performed carefully,
since mistakes could lead to dead or compromised intelligence sources.
should also be noted that the IDF prosecutor and Benishu seemed to agree that
there could be some reasonable delay when the prosecution and the defense were
carrying on negotiations over a possible plea bargain agreement.
words, if there will not be a trial, why make the Shin Bet and the prosecutor
expend significant resources to decide what to classify, what not classify and
what to provide as a paraphrase? What Benishu noted stood out in this case was
not only that around six months (versus a couple of months) passed until the
certification was produced the day before the trial was due to start, but that
the prosecution had not even notified the defense that there was classified
material and that it would be seeking a certification to keep it
It was the combination of the delay in submitting the
certification plus keeping secret that classified material existed that prompted
Benishu’s allegation that the defendants’ right to a fair trial under the Geneva
Conventions could be compromised.
On that issue, it is hard to say what
led to the prosecution’s actions.
The defense speculated that it was part
of a Shin Bet attempt to cover up evidence that would undermine the
prosecution’s main witness against the defendants as having been coerced into
testifying falsely against the defendants, and asked the court to remove the
secrecy certification so that it could view the evidence.
But the court
rejected that request. Having viewed the evidence privately, the court noted
that despite what it called “misconduct” on the prosecutor’s part as a matter of
procedure, none of the evidence would change the verdict in the case or prove
any such cover-up.
Hence, the court upheld the secrecy
That may leave more mundane explanations of the
prosecution’s actions – such as inadequate resources.
For years, the
IDF’s non-war-making functions – such as the legal, spokesman, foreign relations
and other divisions – have been understaffed or sometimes partially staffed by
young soldiers without significant special training.
While no official
public study has been conducted recently, the recent large cuts in IDF resources
may be trickling down into the legal division and directly or indirectly
impacting its ability to keep up with its caseload and such procedural but
important tasks as timely notification of the existence of classified material
and producing secrecy certifications to show the defense.
If this is
true, it is not clear that even a harsh court order, absent some sort of clear
crisis, will change the landscape.