Is there open access to IDF West Bank courts?

Can you walk into the IDF’s military courts in Judea and Samaria, which deal with the Palestinians?

There was intense disagreement at a Hebrew University conference on Tuesday about whether these courts are open to the public.

Sponsored by the Minerva Center and the International Committee of the Red Cross (ICRC), the conference showcased a wide range of debates about military justice systems around the world from the perspectives of academics and practitioners from a variety of countries.

But when the debate turned to the IDF’s own West Bank military courts, top human rights lawyer Smadar Ben-Natan and former IDF West Bank courts judge Lt.-Col. (res.) Ronen Atzmon disagreed strongly regarding just about every issue.

The two experts started to duke it out from the audience during a question-and-answer session, with Ben-Natan saying she feels the courts are closed, and Atzmon saying the opposite.

According to Ben-Natan, even if technically most civilians are not officially forbidden from attending court sessions, since anyone who wants to attend needs to ask special permission to do so from the IDF and get a Prisons Service approval, then for all intents and purposes, the courts are closed and difficult to enter.

Atzmon responded that this still means they are open, and is thus a question of coordination.

Ben-Natan responded that she knows people who had not been granted entry, and it was noted that there are limits on the number of family members a Palestinian defendant can invite to a hearing.

She and Atzmon then engaged in a few more rounds of back-and-forth on whether the courts are open or closed, before a moderator intervened and asked to return the discussion to the panelists, which included Sarit Misgav – who has served in the courts, still serves as a reserve judge, and works full-time as a prosecutor for the State Attorney’s Office – and ICRC legal adviser Mikhail Orkin.

Misgav said that IDF courts are mostly similar to Israeli civilian courts. But Ben-Natan disagreed with her, too. She gave several examples of how she thought the courts are less in line with modern justice systems, like Israel’s civilian justice system.

And this led to additional verbal skirmishes between Ben-Natan and Atzmon.

In elaborating on additional ways she thinks the IDF West Bank courts are different from Israeli civilian courts, Ben-Natan said that threatened detention periods for Palestinians both before and during a trial have an unlimited and problematic impact on forcing Palestinians, especially minors, to cut plea bargains – regardless of whether they are innocent or guilty.

Atzmon pounced again, rejecting the characterization of the impact as unlimited. He said that detention periods might run six months, and that this is far from “unlimited.”

This was all part of the bigger question whether the high plea bargain conviction rate in the IDF West Bank courts shows that the system is unjust and fundamentally different from Israeli civilian courts on the ground, even if theoretically many of the laws on the books in the two systems are the same.

NGO Monitor legal adviser Anne Herzberg at one point noted to ICRC legal adviser Eitan Diamond, who was also criticizing the military courts, that the US civilian court system ran on a similar basis of being mostly plea bargains and convictions.

Misgav argued that citations of 90% conviction rates in the IDF West Bank courts are mischaracterizations, because studies with that statistic counted any conviction – even if there were 10 charges with an acquittal on nine of the 10 charges and a conviction on only one charge – as a full-fledged conviction.

In contrast, she said, a 2010 study performed by the courts themselves, in which partial acquittals on some charges were counted as acquittals, revealed that the courts’ conviction rate was only 71%, with an acquittal rate of 29%.