Israel’s Military Court System Is the Model to Avoid

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 extra-judicial 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). Read other articles by Lisa, or visit Lisa's website.

10 comments on this article so far ...

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  1. jaime said on October 29th, 2007 at 8:39am #

    I agree. The Israelis should use the Saudi -style justice system instead.

    They’re much more progressive.

    See :,11599,1015172,00.html

  2. gerald spezio said on October 29th, 2007 at 9:09am #

    Although I agree with Lisa’s politics and her critical analysis of Israeli non-objective law, I shudder at her complete wide-eyed acceptance of lawyers and lawyering as our humanistic saviors.
    Ditto for US law.
    The professed “rule of law” is more accurately labeled the rule of elitist lawyers with the sacred law as an instrument.
    Or professionalism and profits with a vengeance.
    An outright extortion racket.

    Since both Israel and Supernation have more lawyers per capita than anywhere else in the world, it surely throws a wrench into her theory that lawyers are our hope and protection.
    Who or what protects us from corrupt lawyers and their lucrative monopolistic extortion racket?
    Do you know anybody who hasn’t been lied to, manipulated, bamboozled, and just plain milked of their life savings by a lawyer?

    The basic question of what conditions lawyers’ behavior is no different than what conditions human behavior.
    For a materialistic social scientist, the legal conceptions can only mirror the requirements of the ruling power system.
    Indeed, lawyers are trained in the un-objective dark arts of the adversarial masquerade.

    The forked tongue lawyer’s single vision is an elitist scam designed to keep the producing public paying for paper shuffling due process and esoteric legal services.
    “No fight, no fee,” Benjamin Franklin observed.

    Here is a magniicent and must read classic attack on the US legal monopoly entitled;

    More than sixty per-cent of the US Senate is composed of trained lawyers who fall all over themselves voting for lawyer Joe Lieberman’s
    resolutions advocating cavalier pre-emptive murder.
    What rule of law?

  3. Hatuxka said on October 29th, 2007 at 10:12am #

    The modus operandi of the Ziofacists is nothing to emulate. And now Israel’s apologists can only point to the Saudis and say, at least Israel is not that bad. What a pitiful moral position to be in.

  4. jaime said on October 29th, 2007 at 12:21pm #

    Hey I agree with Hatuxka too. And let’s add Israel emulating that other enlightened State of Iran. This should please everybody here….no need for lawyers there either! Best not to separate religion from Law either.
    That way if you’re outed as a homosexual, there’s simply no need for a trial. Everyone already understands what needs to be done!

    But there are no Gays in Iran. That’s what their President said, anyway. And women don’t need much in the way of rights there either.

  5. sk said on October 29th, 2007 at 8:30pm #

    Somewhat unrelated, but here Saudi Arabia and Israel are mentioned in the same sentence. The moview review serves as a sample of establishment media’s congentinally “objective” take on Israel/Palestine as well.

  6. Mike McNiven said on October 30th, 2007 at 1:50am #

    sk, Please remember that it was Jimmy Carter who, with the help of his master theoretician Brzezinski, created a monster in Afghanistan called “the Mujahedin”! That was in late 1979! That reactionary force, under Bill Clinton, evolved into another reactionary formation called “the Taliban”! Two weeks ago, in an interview with NPR, Carter, very emphatically, supported the GW military occupation of Afghanistan — describing it as a good war! So, Carter gave himself the right to ruin Afghanistan using the Mujahedin, and now, authorizes GW to do it one more time! What is going on here? Who gave Carter the right to ruin a very poor country — which was not doing anything against the US — and then support a devastating occupation of the same country?This guy should face an international tribunal with a jury chosen from the ranks of victims of the Mujahedin! Anything less is an approval of a racist colonial policy! DV’s motto is peace with social justice; what Carter did in Afghanistan was against peace and against social justice!

    Also, in Israel torture is not illegal and that is not a small matter! In other words, US/UK/Israel/Saudi Arabia/ Turkey/Iran/Pakistan/Kuwait do not offer the world a court model!

  7. Mulga Mumblebrain said on October 30th, 2007 at 4:05am #

    One of the central objectives of Israeli torture, indeed, in my opinion, the most important, is the humiliation and psychological crippling of the victims. Israel is a state based on the typical race hatred of European colonialists for their victims. Torture is almost never useful for obtaining information, as the victim will say anything to end his ordeal. The whole ‘ticking-bomb’ excuse, which other racist would-be torturers have borrowed from its Israeli inventors, is garbage. On the Zionazi fringe it has been advocated that the relatives of ‘terrorwists’ be tortured, if the prime culprit remains obdurate. A recent visitor to Australia, an eminent American Jewish lawyer, who had made his name in suing Palestinian charities for tens of millions in retribution for the murder of a Jewish American boy (remembering, of course, that the parents of Palestinian children murdered by the Jewish occupiers receive not a shekel in compensation)was quoted, without controversy, as recommending the cold-blooded liquidation of the siblings of martyr bombers, allegedly as a ‘deterrent’. Such open advocacy of Nazi tactics of murderous retribution, reminiscent of Lidice or Oradur, raises no eye-brows any longer. Indeed, to question such proposals, invites abuse as an ‘anti-Semite’. Israeli terror tactics, particularly the ubiquitous use of torture, and the outsourcing of particular techniques for successful degradation of Arabs to their mates at Abu Ghraib, Guantanamo and Bagram , is not just about slaking the lust for cruelty and domination of racist colonialists. Its about recruiting collaborators, and degrading and defiling an entire people whose only crime is to have lived in Palestine for millenia and hence have got in the way of the Chosen People’s self-asserted Divine Mission.

  8. Mulga Mumblebrain said on October 30th, 2007 at 6:03pm #

    Well, Jaime, whenever and where-ever torture is carried out, it is an abomination. Your assertion that every country has ‘anti-terror law authorities’ licensed to use torture, is pure crap. Much of the world does have disagreeable governments that use torture from time to time, and there are other nations that use it a lot, such as Egypt and Saudi Arabia. These are despicable regimes. But there is a special class of nations, Israel and the US the worst in my opinion, that torture on an epic scale, but have the added disagreeable trait of lying about it, while endlessly proclaiming their ‘moral purity’. That of course is Israel’s prime obscenity, in my opinion. Existing as a particularly nasty racist, colonial, apartheid state, but furiously insisting, against all the evidence, that they are some sort of ‘light unto the nations’. That’s what turns my stomach, and, as all opinion polls show and UN General Assembly votes attest, the stomachs of most of the world’s people.

  9. Mulga Mumblebrain said on October 31st, 2007 at 2:56am #

    Bravo Jaime. You are moving in an interesting direction, substituting vehement invective for argument. Keep it up and maybe Fox News will get in touch with you. I surmise you’re their kinda guy.

  10. debbie hoefpker said on February 15th, 2008 at 3:16pm #

    My question is:
    Who is the chief political officer of Israel?
    What type of government does Israel use?
    If Important, who rules the military?
    How does ISraeli Police systems operate?
    How does the courts systems operate?
    How does the Correctional System operate?

    Does Israeli Criminal Justice system have a advantage, or disadvantage over the United State?

    I need help finding these answers for a college course paper I need to do. I cannot find any answers.
    Any one can help it would be appreciated.

    By the way, I love the history of Israel, even tho it has not all been good at all. I find it interesting, it is why I chose this Country for my paper.

    Deborah H