Analysis: Could the IDF be more lenient about detainments?

Detention is not about danger but about general deterrence – or as B’Tselem would define it: collective punishment.

Eshel Prison (photo credit: ISRAEL PRISON SERVICE)
Eshel Prison
Maybe the most poignant issue noted by B’Tselem’s report on the detention of Palestinians in the IDF’s West Bank courts pre-verdict is the application of general presumptions that ignore individual circumstances to detain Palestinians for an extended period even for seemingly non-dangerous crimes.
One opinion, written by IDF Judge Col. Shaul Gordon in a case filed in 2001, encapsulates this issue, with the court explaining why merely crossing into Israel illegally to try to find work is such a serious matter.
Gordon is clear that the individual before him and many other similar individuals are not dangerous themselves.
However, he writes, the general phenomenon of Palestinians infiltrating Israel illegally is so widespread that it heavily burdens IDF security forces and distracts them from being able to catch terrorists.
Essentially, the court is saying that it will order extended detention of non-dangerous border violators who are just trying to earn more money, because of the general dangers presented by other Palestinian infiltrators who are dangerous and the IDF’s limited resources to deal with the issue.
The detention is not about danger but about general deterrence – or as B’Tselem would define it: collective punishment.
In one August 2014 snapshot period provided by the IDF, the prosecution sought to detain 80 percent of the illegal infiltrators, and in 94% of those requests the motion was granted or the defendant agreed to a plea bargain.
Another dynamic here is B’Tselem’s attack on the lack of alternatives to full detention until the end of trial, which, according to IDF statistics from 2008-2013 presented by B’Tselem, ended up contributing to up to 1,300 Palestinians being detained pre-verdict for over a year.
B’Tselem argues that under Israeli law, defendants are not held during their trials for such extended periods for minor and nonviolent crimes. Rather, alternatives such as house arrest or high bail fees are employed to ensure defendants attend their court hearings.
The IDF definitely has responses on both issues.
The limited resources for IDF security forces and the extra burden on them in trying to catch the dangerous Palestinians illegally crossing the border are not imaginary but real issues for maintaining security.
Some limited attempts in the past to get Palestinians to attend their hearings after release have at most met mixed success, since many Palestinians view the IDF’s courts as invalid.
Also, for the IDF to rearrest a Palestinian in the West Bank once released is far more complicated than it is for the Israel Police to rearrest Israeli civilians within the Green Line.
At the same time, sometimes criticism of the IDF’s military justice system for handling the Palestinians is so over the top and so disregards the complexities for the Israeli side that the IDF finds it easier to disregard some of the more nuanced criticism.
In recent years, UNICEF has engaged in more targeted criticism of specific issues with how the IDF West Bank courts deal with Palestinian minors, leading the IDF to make a number of policy changes and try new experiments.
Even if some Palestinian infiltrators need to be detained until their verdict, to ease the security burden on the IDF, or because there is no alternative to ensure they attend their trials, is it possible that the courts are sometimes overusing this presumption? In June 2014 the Supreme Court ruled that the IDF West Bank courts needed to employ more lenient sentencing policies for Palestinians illegally crossing the border, and some have claimed that since the ruling reduced the number of jail sentences, the number of pre-verdict detentions have also been reduced.
But B’Tselem says that the Supreme Court ruling applies only to first-time offenders, and that the decision has had no impact on the number of pre-verdict detentions.
Taking into account the recent Supreme Court ruling to make sentences lighter, could individual circumstances be analyzed more often than they are currently? At a time when the Boycott, Divestment and Sanctions movement is in high gear and the International Criminal Court is trying to decide how much to trust the IDF on judgment-call cases related to alleged war crimes from the 2014 Gaza War, a careful review on ensuring fairness to Palestinians on an individual level could be highly relevant.