Israel's
Military Court System
Is The Model To Avoid
By Lisa Hajjar
29 October, 2007
Atlanta
Journal-Constitution
Should
the United States, seeking to recalibrate the balance between security
and liberty in the "war on terror," emulate Israel in its
treatment of Palestinian detainees?
That is the position that
Guantanamo detainee lawyers Avi Stadler and John Chandler of Atlanta,
and some others, have advocated. That people in U.S. custody could be
held incommunicado for years without charges, and could be prosecuted
or indefinitely detained on the basis of confessions extracted with
torture is worse than a national disgrace. It is an assault on the foundations
of the rule of law.
But Israel's model for dealing
with terrorism, while quite different from that of the U.S., is at least
as shameful.
Long before the first suicide
bombing by Palestinians in 1994, Israel had resorted to extrajudicial
killings, home demolitions, deportations, curfews and other forms of
collective punishment barred by international law.
Imprisonment has been one
of the key strategies of Israeli control of the Palestinian population,
and since 1967 more than half a million Palestinians were prosecuted
through military courts that fall far short of international standards
of due process.
Most convictions are based
on coerced confessions, and for decades Israeli interrogation tactics
have entailed the use of torture and ill-treatment. Tens of thousands
more Palestinians were never prosecuted, but were instead held in administrative
detention for months or years.
Israel had the ignominious
distinction of being the first state to publicly and officially "legalize"
torture. Adopting the recommendation of an Israeli commission of inquiry,
in 1987 the government endorsed the euphemistically termed "moderate
physical pressure," and tens of thousands of Palestinians suffered
the consequences.
In 1999 the Israeli High
Court prohibited the routine use of "moderate physical pressure."
But the ruling left open a window for torture under "exceptional
circumstances."
These tactics, many of which
have been used by American interrogators against foreign prisoners,
include painful shackling, stress position abuse, protracted sleep deprivation,
temperature and sound manipulation, and various forms of degrading and
humiliating treatment. In an interview with three Israeli interrogators
published in the Tel Aviv newspaper Ma'ariv in July 2004, one said the
General Security Service "uses every manipulation possible, up
to shaking and beating."
About 10,000 Palestinians
are imprisoned inside Israel and more than 800 are administratively
detained. Their families in the West Bank and Gaza Strip are barred
entry to Israel, so Palestinian detainees are, in that sense, as isolated
as prisoners in Guantanamo. Just last week, the Israeli Supreme Court
had to order one of the most notorious detention facilities to allow
prisoners 24-hour access to toilets.
The Israeli military court
system compares to the U.S. military tribunal system established for
Guantanamo in ways that U.S. lawyers like Stadler and Chandler deplore.
In addition to the reliance
on coercive interrogation to produce confessions and to justify continued
detention, prisoners in Israeli custody can be held incommunicado for
protracted periods, and lawyers face onerous obstacles in meeting with
their clients.
While it is true that detainees
are brought before an Israeli military judge at some point, this process
is hardly impartial. Such hearings tend to be used to extend detention
and often take place in interrogation facilities, not courts. Detainees
are rarely represented by lawyers or apprised of their rights, including
a right to complain about abuse or to assert innocence. Failure to assert
innocence at this hearing can be used as evidence of guilt.
Any information, including
hearsay and tortured accounts from other prisoners, can be used to convict
or administratively detain Palestinians.
If we learn anything, then,
from the Israeli experience, perhaps it should be that torture and arbitrary
or indefinite detention exacerbate a conflict and endanger civilians.
Americans should be proud
of the noble work that Guantanamo lawyers are doing to press for a restored
commitment to the rule of law by the U.S. government. If these lawyers
wish to identify an apt model from Israel, it is not the government
or the military court system.
Rather it is the Israeli
and Palestinian human rights communities who have been working for decades
to establish respect for human rights and the rule of law.
Lisa Hajjar
is associate professor and chair of the Law and Society Program at the
University of California, Santa Barbara, and author of "Courting
Conflict: The Israeli Military Court System in the West Bank and Gaza"
(University of California Press, 2005).
Leave
A Comment
&
Share Your Insights
Comment
Policy
Digg
it! And spread the word!
Here is a unique chance to help this article to be read by thousands
of people more. You just Digg it, and it will appear in the home page
of Digg.com and thousands more will read it. Digg is nothing but an
vote, the article with most votes will go to the top of the page. So,
as you read just give a digg and help thousands more to read this article.