Six years after Sept. 11th and the ensuing war on terror, what seemed a temporary situation has become a protracted conflict, with everyone from the Bush administration to competing presidential candidates offering recommendations for change. Proposals vary from withdrawing troops from Iraq to reforming the military commissions in Guantánamo. But amid an open-ended war on terror, would any of these comparatively small changes really matter?
On June 5, 1967, Israel entered the Six Day War against several neighboring nations and significantly deepened its own war on terror. Just two days later, Israel opened its military courts to adjudicate alleged perpetrators (mostly Palestinians) of security offenses in the newly captured and occupied territories. After 40 years the courts have undergone several structural and procedural reforms, changed locations and recently closed the Gaza branch. But the country's war on terror has now endured four decades and it is questionable whether its impact has become any less harsh.
This month, the Israeli human rights organization, Yesh Din, published a report, "Backyard Proceedings: The Implementation of Due Process Rights in the Military Courts in the Occupied Territories," following the group's observation of over 800 military court hearings at various stages of proceedings. Although during the past several decades Israeli security legislation and military court regulations have evolved to award virtually the full gamut of due process rights to suspects and defendants, no outside evaluation had been conducted in more than 15 years. In fact, Yesh Din's courtroom monitoring, interviews with court personnel and defense attorneys, and data provided by the military itself reveal that the substance of these rights is only minimally translated from paper to practice. And with a 0.29 percent acquittal rate in 2006, one needn't strain to imagine the result.
Although nearly 99 percent of military court defendants are represented by counsel, their ability to receive effective representation is severely restrained. Palestinian detainees are held in facilities within Israel, in contravention to the Fourth Geneva Convention's Article 76; Palestinian attorneys (who comprise at least 50 percent of the attorneys in the military courts) are rarely granted permits to enter Israel to visit their clients. Even Israeli attorneys with access to the courts often arrive only to find their clients under orders barring them from meeting with counsel. All military court proceedings, investigations, and other correspondence is conducted in Hebrew, a language that most defendants and even some of their attorneys do not understand. Despite the fact that soldiers interpret the hearings, no Arabic translations of court documents are provided. Adding to the system's many Catch 22s, the full and updated set of military court legislation, regulations and published decisions are not disseminated and are housed solely in the military archives in Israel, to which only attorneys bearing Israeli ID cards have access.
What's more, as the military courts have increasingly looked, at least on paper, like civilian criminal courts, the issue has fallen further under the radar of the Israeli public.
While most Americans (like most Israelis) would rather not think about Iraqi and Afghan civilians being held at Guantánamo, maybe they should start.
Israel opened its military courts only to wake up 40 years and many billions of dollars later with almost 10 thousand detainees passing through the courts each year. Arguably, the military courts, like most symptoms of the Israeli occupation, have only amplified resentment among occupied Palestinians and many Muslim and Arab nations, and crippled the chances for positive development in Palestinian society.
Meanwhile, more than a generation of Israelis has been raised under a "normalcy" that includes consenting, at least by default, to stunted human rights for its neighbors. Every human being clings to the fundamental hope to a fair opportunity to be heard.
The United States is now collecting enemies at a faster rate than Israel. If any U.S. administration plans a series of reforms in the war on terror and its military commissions, perhaps American citizens should take the lessons from Israel's last several decades to heart.
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