Overview
UN Resolutions
Guiding principles
Juvenile justice standards
Military legal system
Military orders
Military regulations
Military court decisions
Civilian legal system
Discrimination
Legal opinions
Academic articles
 
Bookmark and Share
  change font size تصغير الخط تكبير الخط print
Home »

Military court decisions

There are two military courts currently operating in the West Bank. One is located in Ofer military base, near Ramallah, the other is in Salem military base, near Jenin. There are around 20 first instance military court judges and three appeal judges. There are also around 150 reservist judges. Decisions of the Military Appeals Court are binding on the military courts of first instance. A number of judges have also been trained to hear cases in the military juvenile court.

Case
Date
Court
Issue
Details

Military Prosecutor
v
Anonymous 

2017 Ofer Military Court The right to a lawyer and admissibility of illegally obtained evidence A 15-year-old boy was actively prevented from consulting with his lawyer by an interrogator who then proceeded to take a statement from the boy. Lt. Col. Yair Tirosh rejected the admissibility of the boy's statement, inter alia, because he was denied his right to consult with a lawyer prior to interrogation.
2014 Military Appeals Court Pre-trial assessment by social worker The Military Appeals Court rejected the proscution's argument that the court had no authority to order the pre-trial assessment of minors by a social worker.
2013 Military Court Interrogation
A 14-year-old boy was arrested in Hebron after two soldiers claimed they could positively identify him as the boy who threw stones at them from a distance of 200 metres at night. The boy was taken to an Israeli police station in the West Bank for questioning. The court found that:
  • His family was not notified of the arrest.
  • He was interrogated at 11:00 p.m.
  • He did not consult a lawyer prior to interrogation.
  • Neither parent was present during interrogation.
  • He was not informed of his right to silence.

At the conclusion of the interrogation the boy confessed to throwing stones at Israeli soldiers on three occasions.

Judge Avri Eynhorn questioned why the boy was interrogated at night without appropriate safeguards. Nevertheless the judge ruled that bail be denied and the boy be held until the end of the legal process on the grounds that he had provided a confession and it was alleged that he had used a slingshot.

Military Prosecutor
v
F.H.
2012
Military Appeals Court
Bail
A 17-year-old boy was accused of throwing eight stones at Israeli soldiers. The court noted that throwing stones at soldiers equipped with protective gear is not as dangerous as throwing stones at an un-armoured vehicle. This, coupled with the fact that the accused was a minor, was sufficient grounds to release the child on bail. The appeal court criticised the decision of the lower court not to release the child.
 
Military Prosecutor
v
A.T.
2012
Military Court
Admissibility of illegally obtained confession
A 14-year-old boy was arrested by soldiers in the middle of the night. He was held in detention for many hours before being interrogated. The boy reported being terrified and intimidated. He was held in harsh conditions. He did not sleep and was not provided with anything to eat or drink. The interrogation commenced before A.T. could consult with his lawyer who was on the way to the police station. He was only permitted to consult with his lawyer after five hours of interrogation. A.T. was interrogated by four interrogators and was not accompanied by a parent in accordance with the “spirit” of the Youth Law. He was not properly informed of his right to silence. A.T. was charged with throwing stones and participating in a protest without a permit. He remained in detention for two months before being released into home detention by Ofer military court. Statements made by A.T. during interrogation were used as evidence against two community leaders accused of organising demonstrations. Although military court judge Sharon Rivlin Ahai found that there were serious defects in the manner in which A.T. was interrogated, they did not have a substantive effect on the reliability of his confession, which accordingly, was ruled as admissible.
 
Military Prosecutor
v
W.A.
2011
Military Appeals Court
Interrogation
A 16-year-old boy was accused of throwing a Molotov cocktail and stones at Israeli soldiers. The prosecution conceded that the evidence relating to the Molotov cocktail was weak. The court found that there were numerous defects in the manner in which the minor was questioned, including: he was questioned at night; without a parent being present; and without being informed of his right to silence. These flaws, together with the fact that the minor had no prior criminal record, resulted in the court releasing the child. The judges criticised the police for continuing to ignore decisions of the court regarding the interrogation of children.
 
Military Prosecutor
v
Y.T.
2011
Military Court
Retroactively approving indictment of a minor
A 15-year-old boy was accused of, inter alia, being present at an assembly of a banned organisation (Hamas) when he was 12. Under military law, a minor accused of a felony that occurred more than two years prior can only be indicted on the approval of the Chief Prosecutor. The Chief Prosecutor had not given his approval prior to the indictment but this was retroactively given at the hearing. The court rejected the retroactive granting of the approval and acquitted the minor.
 
Military Prosecutor
v
A.W.
2011
Military Court
Sentencing
Military court judge Lt. Col. Ronen Atzmon: “In the extensive case law in this sphere, one can find an extremely broad range of punishments given for stone throwing; beginning with a conditional prison sentence or a prison sentence of a few days or weeks – primarily in the case of minors and for throwing stones at an army vehicle – to a case in which a 4-8 months’ prison term was imposed, where no injury was caused, to a holding by the Military Court of Appeals that the proper punishment should be 10-12 months’ imprisonment (Military Prosecutor v Alatrash), and one judge went even further, holding that a prison sentence of more than 24 months was warranted (Military Prosecutor v Salah Darwish).”
 
Military Prosecutor
v
I.D.
2011
Military Court
Interrogation
Military court judge Major Ety Adar: “Personally, I do not think that the defect in nighttime interrogation, as occurred in the said case, and the degree of harm it might cause to the judgment of a person interrogated at that time, is greater than the harm that might be caused to the judgment of a person who is arrested at night, is not interrogated for hours, but is held in conditions in which he is not sleeping or comfortable, and is taken to interrogation in the morning, without any rest whatsoever.”
 
Military Prosecutor
v
H.K.
2011
Military Appeals Court
Application of the Israeli Youth Law in the military courts
A 13-year-old boy was accused of throwing a Molotov cocktailat an army jeep and indirect involvement in throwing two Molotov cocktails at an army jeep on a separate occasion. The court confirmed that under Israeli civilian law (Youth Law), a child under 14 cannot be held in custody and that the “spirit” of the Youth Law should apply in the military courts. However, the involvement of the child in a serious offence in this case warranted that he be denied bail and held in custody until the conclusion of proceedings, regardless of Israeli civilian law.
 
Military Prosecutor
v
A.M.
2011
Military court
Sentencing
A 14-year-old boy was convicted after he confessed to throwing stones during a demonstration. The prosecution asked that the minor be sentenced to 5 months in prison. The defence argued that the 45 days in detention already served by the minor was a sufficient punishment. The court noted that at 14 the personality of the minor is not well developed and therefore he is less responsible for his actions. Further, the risk of damage to the minor from a long prison sentence could be grave and the court should give more weight to the possibility for rehabilitation when dealing with a minor.
 
Military Prosecutor
v
L.A.N.S.
2010
Military Court
Bail /
Alternatives to detention
Military court judge Major Yariv Navon: “People who throw stones at IDF forces are usually supported by the general population, so there is an inherent concern that these minors will repeat their acts. This is especially true with respect to young defendants whose worldview is not fully formed, and who are readily influenced. Therefore, there are few cases in which the court will be convinced there is an alternative to detention. But there may also be situations in which the balance struck by the court will prefer the right of the defendant’s liberty over the public interest in keeping him behind bars … I found that the cumulative circumstances justify deviation from the rule that a person throwing stones should be detained: the defendant’s young age; his clean record; the fact that it was a one-time incident; the fact that the evidentiary material could not attribute the soldier’s hand injury to the defendant, and the fact that the defendant’s father was present at the hearing, which indicates that there is a family network that can support the defendant and guide him so that he does not fail again.”
 
N.M.
v
Military Prosecutor
2010
Military Appeals Court
Bail
President of the Military Appeals Court, Col. Aharon Mishnayot in an appeal against a decision to deny release on bail: “This was also an isolated incident, which was not premeditated, and was not carried out in the framework of more extensive public disturbances. The appellant, who was on his own, threw only one stone, which apparently caused no damage.”
 
Military Prosecutor
v
R.F.
2009
Military Appeals Court
Custodial sentences
A 14-year-old boy was accused of throwing stones at a military jeep and hitting the jeep with one stone. The court noted that as a general rule persons throwing stones should be given custodial sentences, in the case of a young minor alternatives to detention should always be considered. Where a social report is not available the court should give significant weight to statements made by the parents.
 
Military Prosecutor
v
A.A.
2009
Military Appeals Court
Interrogation
A 15-year-old boy was accused of throwing stones at Israeli soldiers and settlers on 10 different occasions. The only evidence against the minor was a confession he gave to the police. The defence claimed a number of deficiencies in the manner in which the minor was interrogated, including: the interrogation occurred at night; the interrogator was not trained to investigate minors; and the interrogation was only documented in Hebrew. Vice-President Netanel Benisho: “I shall begin by saying that the fact that the interrogation of the appellant took place at 4:00 A.M., immediately following his arrest, raises complicated questions. Indeed, the law does not prevent such an action. However, case law has recognized the possibility that interrogation late at night could harm the judgment of the person under interrogation. Clearly, this concern intensifies when the interrogee is a minor, only 15 years of age and it is doubtful that he is aware of his rights. It is easy to imagine the mental state of a child who is arrested in the middle of the night by soldiers and is immediately taken to a police interrogation.” The court noted that although legal protections applied to Israeli children do not apply to Palestinian children in the West Bank, they are relevant to the question of what evidentiary weight should be given to the confession.
 
Military Prosecutor
v
K.D.
2009
Military Court
Sentencing
Military court judge Major Sharon Rivlin-Ahai: “The spirit of the Convention [on the Rights of the Child], like the statutes and case law, require an approach that gives substantial weight to the age of the minor at the time the offense was committed, and at the time of sentencing.”
 
F.H. and S.H.
v
Military Prosecutor
2009
Military Appeals Court
Detention with adults
President of the Military Appeals Court, Col. Aharon Mishnayot: “This is a complete breach of Section 46N of the Order Regarding Security Provisions, as amended in Amendment No. 109 of the aforesaid Order, which was recently signed … These are minors also pursuant to the laws of the region, who appear even younger than their age, and it is strictly forbidden to house them in detention facilities together with adults. In light of the aforesaid, a copy of the decision shall be delivered to the Ofer Prison commander for urgent examination of defense counsel’s allegation regarding the incarceration of minors together with adults, and immediate separation of the minors, if they have not already been separated. It is also expected that the rules be refreshed, and that the necessary lessons be learned to prevent the recurrence of similar errors in the future.”
 
Military Prosecutor
v
R.F.
2009
Military Appeals Court
Sentencing / Alternatives to detention
“When minors 14 years or younger are involved, it is necessary to thoroughly examine an alternative to detention that will negate the dangers. Youths, and maybe one can say children, of this age are not set in their ways and are easily influenced. The intent underlying their acts is often different in nature from that of their older friends.”
 
Military Prosecutor 
v
N.A.
2009
Military Appeals Court
Sentencing / Alternatives to detention
President of the Military Appeals Court, Col. Aharon Mishnayot: “When a minor does not have a criminal record and is not a recidivist, and the act attributed to him does not entail an inherent substantive danger, it is appropriate to give great consideration to a suitable alternative to detention, together with guarantees and appropriate monitoring, to give the minor the opportunity to mend his ways.”
 
Military Prosecutor
v
N.A.
2009
Military Appeals Court
Application of the Israeli Youth Law in the military courts
A 15-year-old boy was accused in throwing stones at Israeli forces on three separate occasions. The only evidence against the minor was a confession he gave to the police. The defence argued that there were serious deficiencies in the interrogation including: the minor was interrogated at the middle of the night; without a parent being present; and by an interrogator who was not trained as a youth investigator. The court noted that there is no legal obligation to treat Palestinian children in the West Bank the same as Israeli children. President Col. Aharon Mishnayot: “Although the provisions of [Youth Law] do not apply in the [West Bank], it is impossible to ignore their spirit or the principles underlying the protection of a minor’s rights, even if he is suspected of committing offenses, and dominant weight must be given to the supreme principal of the best interest of the minor, as stated in the proposed law. Ultimately, a minor is a minor is a minor, whether he lives in a place where Israeli law applies in its entirety, or in another place, where, although Israeli law does not apply in its entirety, it is subject to the significant influence of the Israeli legal system.”
 
Military Prosecutor
v
M.A.
2008
Military Appeals Court
Time to trial
Military Appeals Court judge, Col. Eli Wilf: “Regarding continuation of the proceedings, a period of five months from the time of arrest to the filing of the indictment and the setting of a time for hearing the matter cannot be deemed such a long period as to justify release from detention. This length of time is acceptable; it is neither unusual nor unreasonable. To hold that this period of time justifies a detention alternative would lead to the conclusion that, in almost all cases, we would have to consider release, which is an unacceptable result.”
 
Military Prosecutor
v
A.H.
2008
Military Appeals Court
Bail
A 14-year-old boy was accused of throwing stones at soldiers on three occasions. The court noted that in cases involving young children it was obliged to examine the possibility of releasing the child on bail.