Courting Conflict: The Israeli Military Court System in the West Bank and Gaza

Appendix: The Institutional Structure and Administrative Features of the Military Court System

Military Structure and Personnel The Israeli military court system is part of the military administration, which is headed by the military commander of each region (West Bank and Gaza). The military commander has “supreme” legislative authority to issue, amend, and repeal military orders (MOs). All military legislation, such as orders of the various military administration departments, draw their validity from the area commander ’s orders, which are equivalent to “supreme legislation.” Administratively, the court system is under the direct authority of the Military Advocate General (MAG), who occupies the highest position within the legal substructure of the Israel Defense Forces (IDF). The MAG recommends people as judges to the military commander of the region and assigns judges to speciWc courts. For the judiciary, the administrative hierarchy is: A p p e n d i x The Institutional Structure and Administrative Features of the Military Court System 253 Military Advocate General President of the Military Court of Appeals (established in 1989) Presidents of Military Courts Other Judges 254 APPENDIX Direct supervision of the courts falls to the president of the military court of appeals. Presidents of the military courts must have the rank of lieutenant colonel or higher. Other judges have the rank of major or higher. Permanent judges (i.e., nonreservists) always are appointed from the ranks of the IDF’s legal staV by a selection committee headed by the MAG. Reservist judges always have had some prior military legal experience (e.g., as prosecutors or legal advisors). They are appointed by a selection committee headed by the Deputy MAG, which includes the president of the military court of appeals and his deputy, another senior member of the unit, and the president of the Israel Bar Association. At any given time, there are approximately ten to Wfteen permanent judges and Wfty to sixty available reservists. The prosecution is administratively distinct from the judiciary, although judges and prosecutors are members of the same IDF unit. The administrative hierarchy for the prosecution is: Israelis who defer their compulsory military service to attend university to pursue a law degree are then conscripted and usually perform their service as lawyers for the IDF. They enter with the rank of lieutenant, and those assigned to serve in the military courts become prosecutors. Reservists appointed to be prosecutors are civilian lawyers. The MAG, who is advised on an ongoing basis by the military chief of staV and military commanders in the Weld, convenes regular meetings at the military headquarters in Tel Aviv with the legal advisor and head prosecutor of each region to discuss the situation on the ground and trends in the military courts (number of arrests, convictions, sentences, etc.). At these meetings, policy directives are formulated about how particular kinds of cases should be prosecuted, and this information is passed on to prosecutors working in the courts. Full-time prosecutors have the right to use their own discretion to make plea bargains with defense lawyers on “simple cases” (see below), whereas reservists often are instructed on how to handle all their cases. All plea bargains for “hard cases” must be done in consultation with the court’s head prosecutor. Prosecutors have legal immunity for their work (i.e., they cannot be court-martialed for “mistakes”). Military Advocate General Legal Advisor (West Bank/Gaza) Head Prosecutor (West Bank/Gaza) Head Prosecutors of Military Courts Other Prosecutors Courts Military courts of the Wrst instance are distinguished by the number of judges (one or three) and the maximum sentencing power. One-judge courts handle simple cases involving charges with lesser maximum sentences. Until July 1991, the maximum sentence that could be issued by a one-judge court was Wve years in prison, but this was raised to a maximum of ten years. Three-judge courts handle hard cases and are empowered to pass sentences up to the maximum of life in prison or the death penalty. Although several death sentences have been handed down by military courts, they subsequently were commuted to life sentences. All judges serving in one-judge courts must be legal professionals. In threejudge courts only one must be a legal professional, and the other two can be oYcers with a rank of major or higher. In capital cases, all three judges usually are legal professionals . The military court of appeals is composed of a three-judge panel, although there is a provision for a Wve-judge panel. In three-judge panels...