Judging Your Enemy: Professional Dilemmas of Military Jurists
The legal system put in place by the Israeli occupying forces after 1967 was a stopgap program intended to avoid a breakdown of the rule of law following the occupation, but it has endured in the long term and become a system of laws that govern every aspect of life in the Occupied Territories. This has required a great deal of modification, improvisation and compromise on the part of the individual judges and legal advisors who are charged with presiding in court and administering the law. Ultimately, Israel asks these judges to reconcile the different priorities of national security , settling an occupied area and upholding the rule of law.
Two subjects that demonstrate the dilemmas that military jurists face are administrative detention—imprisonment without trial—and the alleged use of torture by Israel’s General Security Service in interrogations that led to indictment of defendants in military courts.
6.1 Administrative Detention
Administrative detention, as a legal concept, was introduced to the Occupied Territories through the security orders of the Post-World War I British authorities in Palestine and was subsequently adopted by the Israeli military justice system. Administrative warrants allowed the Israeli army and Israel’s General Security Service—the country’s internal intelligence agency, also known as Shin Bet—to arrest and hold people for long periods of time without trial.
The number of administrative detainees in Israeli prisons changes according to the level of Palestinian resistance to the occupation. In 1999, when it seemed that a political agreement was within reach, there were only a few administrative detainees in holding. Two years later, in the midst of the second Palestinian uprising (Intifada), thousands were held under administrative arrest. At the end of June 2013, there were approximately 140 Palestinian residents of the Occupied Palestinian Territories held under administrative detention.
During the first Intifada in 1987, open air prison compounds were established to hold large numbers of arrested Palestinians. Some of the people held in these compounds were tried, but many were held under administrative warrants and did not know how long they would stay incarcerated.
A prisoner who is under administrative detention has the right to appeal to a military judge. The administrative arrest order and judicial supervision proceeds in this manner: the General Security Service shows classified material in the form of a written testimonial to the judge. The defendant is brought before the judge and has the right to be represented by an attorney. The army and General Security Service are represented by a prosecutor. The judge then has to decide whether to uphold the arrest order, cancel it or shorten the defendant’s period of detention.
The process allows evidence used against defendants to be withheld from them. The General Security Service justifies this practice with the claim that releasing classified (secret) evidence would expose intelligence sources and harm the security of the area. Since the defendants in this situation do not know the grounds for keeping them under arrest, they can only speak in general terms to the court. For his part, the judge is not allowed to question the defendant regarding the alleged accusations and must make a decision based only on his impression of the material he sees. The defendant is physically present in the courtroom, but his or her presence has little or no effect on the decision.
The judges who reviewed administrative arrests at the time of the first Intifada rarely cancelled administrative arrest warrants. They did sometimes shorten arrest warrants by a month or two. But a new release date was not a guarantee that a new warrant would not be issued for the defendant prior to his or her release.
Military judges faced a professional dilemma in administrative detention cases, which highlighted the tension between their roles as judges (i.e., impartial administrators of the law) and their concurrent roles as soldiers whose army was engaged in an armed conflict with Palestinian residents from the Occupied Territories and who are, at least nominally, therefore on the same “side” as the army and the General Security Service.
The use of torture during interrogations posed another dilemma for military jurists. In most trials in the military courts, defendants arrived in court having confessed to the charges during interrogation—interrogation during which the General Security Service and the Israeli Army often secretly used torture to extract confessions.
In 1987, an Arab-Israeli army officer who had been found guilty of treason appealed to the Israeli Supreme Court. As a result of this case, for the first time the public was made aware of the methods of interrogation used by the General Security Service, which had interrogated the officer. A governmental commission was appointed to determine the procedure actually used in interrogations conducted by the General Security Service, and the commission’s findings, known as the “Landau Commission Report,” shook the Israeli public.
Part of the report was classified, but the unclassified portion confirmed that the General Security Service had used torture widely in its interrogations. In its conclusions, the courts accepted the General Security Service’s position that torture in interrogations was necessary if the security of the country was to be maintained. But the commission was harsh about the fact that General Security Service agents had apparently perjured themselves in court for 20 years when questioned under oath about their means of obtaining confessions.
The commission wrote:
The interrogator, when taking the stand, saw a jeopardy in telling the truth. For one, the danger of exposing the techniques of the interrogation (to the enemy). Secondly, the disqualification of the confession and the acquittal of the defendant…. The solution the interrogators found was the easy one. They preferred secrecy to the duty of [telling the] truth in a courtroom. On the stand they boldly denied applying any physical pressures and thus committed a criminal felony of perjury.
The Landau Commission Report triggered public debate that led to the 1999 Israeli Supreme Court decision in Public Committee Against Torture v. State of Israel that banned the use of torture in interrogations. Interrogators are not prohibited, however, from “asserting the defense of necessity” under circumstances where torture is seen as immediately necessary to save human lives.
In the film, judges who heard the false testimony from General Security Service representatives are asked whether they were aware of the illegal use of torture by the General Security Service. Their answers vary, but all reflect the extreme pressure on these judges to enforce the law of occupation while upholding the principles of justice.
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