Military Courts

Military justice is to justice as soy ice cream is to the dairy version. There may be a great effort made to make the two look the same, but on the first bite one knows the difference.

Every effort by the United States to set up military courts to process the detainees in Guantanamo have failed to meet the minimum procedural refinements we associate with a functioning judicial system. These courts have been given the power to deny the defense the right to view the evidence against the defendant, coerced testimony is admissible and if the court finds the detainee not guilty, the person can continue to be held and even tried again and again till a court does find him guilty. So there may be a judge, a defense lawyer and a prosecutor all meeting in a courtroom but one should not confuse this with a hall of justice.

Israel has had experience with military courts since its occupation of the West Bank and Gaza began and its record appears to be no better than the American one. A report just issued by Yesh Din, a volunteer Israeli organization monitoring the human rights situation of Palestinians, has just issued a report on Israel’s military courts. Since 1990 more than 150,000 Palestinians have been tried in these courts. In 2006, 9,123 cases were conducted but only in 23 cases - which constitute 0.29% of the rulings - was the defendant found to be not guilty.

Frequently lawyers receive the indictments charging their clients only as they enter the court and the documents and court proceedings are in Hebrew (translators -- army reservists who speak Arabic -- are provided for trials but not for detention proceedings.) Hearings ordering detention till the end of the proceedings took an average of 54 seconds. Judges are reservists who are lawyers in civilian life but who may have no judicial training or experience.

But a system of justice should not only be judged by these formal issues, serious breaches of justice that they are. Several years ago, I attended the military trial of a sixteen year old girl who had thrown a rock at a soldier who was operating an army bulldozer demolishing her home. To be sure, she was “guilty,” but one may well ask, “What would my kid have done if an occupying army had torn down our home?”

The rock fell short, hurting no one. The facts were not in contention. The circumstances, though, surely called for a measure of understanding and mercy. Instead, this beautiful sixteen year old girl, her head covered with a white scarf as is Moslem custom, and her thin frame encased from head to toe in a loose-fitting black dress as one commonly sees among Arab women, was sentenced to six months in jail. What was accomplished? Did the judge, a Tel Aviv lawyer, go home and feel he had defended the state against its enemies? Did the soldiers looking on feel that they had done their duty?