2.1. The inadequacy of Jordanian law in the military courts of the region

The application of Jordanian law in the region's military courts raises several concerns regarding its suitability and legitimacy. First, recognition of Jordanian sovereignty over the region following the 1948 Arab–Israeli War was limited, with only two countries acknowledging Jordan's control over the area.Footnote ²² This calls into question the extent to which Jordanian law can be applied legitimately in the region under the current authority.

In addition, the Jordanian law in force in the region is outdated and has not been updated for many years. Israel is not obligated to adopt the changes made to Jordanian law since the occupation of the region began.Footnote ²³ Moreover, the existing Jordanian law does not reflect modern social and legal developments, making its application problematic.

In some cases Jordanian law violates basic human rights and fails to meet contemporary standards. For example, it discriminates against women in certain respects, such as providing an exemption for a husband who kills his wife on the grounds of ‘preserving family honour’.Footnote ²⁴ This stands in stark contrast to the law and jurisprudence of the military courts, which have consistently condemned such acts. Additionally, Jordanian law imposes severe mandatory penalties for certain offences, such as theft, which may be considered disproportionate by modern standards.

In comparison to Israeli law, Jordanian law tends to be more stringent and less liberal. Its application to the residents of the region could create significant disparities between their rights and those of Israeli citizens. This is particularly problematic when co-defendants, one a resident of the region and the other an Israeli citizen, face different legal systems (military and civilian courts, respectively) for the same offence. In such cases it is desirable to establish similar, if not identical, laws for both defendants.Footnote ²⁵

Furthermore, Jordanian law is not tailored specifically to address the complex security situation in the region and its unique legal status. Its application could lead to numerous practical and legal challenges. There are ongoing concerns about the adequacy of legal protection for women's rights in various legal systems in the region, including Jordanian law. Updating and improving these forms of protection is crucial for ensuring justice and equality.Footnote ²⁶ This contrasts with military court jurisprudence, which has acknowledged the crime of marital rape and the need to protect all individuals from sexual violence.

It is worth noting that even if the current Jordanian law has been updated to address some of these issues, such as criminalising marital rape, the version of Jordanian law applicable in the region remains outdated as a result of Israel's lack of obligation to adopt these changes.

In conclusion, despite the challenges in applying international law in the region, the use of Jordanian law does not appear to be a suitable alternative. As mentioned, Jordanian law is outdated, it disproportionately infringes the rights of the accused, fails to meet the specific needs of the region, and lacks apparent legitimacy. It is preferable to develop dedicated legal arrangements that balance the security situation, the rights of residents and international law to the greatest extent possible.

2.2. The legal framework of the military courts in the region

At the end of the Six-Day War in 1967, by international law the pre-existing legal framework in the region remained in force. Consequently, the applicable criminal law was the Jordanian Penal Code of 1966. Military courts continue to this day to adjudicate criminal offences under this Jordanian criminal law. However, considering evolving circumstances, the military commander has implemented various modifications and adaptations. The act of marital rape, for instance, which was not criminalised under Jordanian law, has been proscribed. Furthermore, the punishment of stoning, which was present in the original law, has been abolished. The court has also used mandatory defence regulations, which were also in force in the region before 1967.Footnote ²⁷

In addition, the proclamation regarding enforcement of the Security Provisions Order was enacted.Footnote ²⁸ The Security Provisions Order is the primary penal code regulating criminal jurisdiction and procedure, including establishing courts; the appointment of judges, prosecutors and defence attorneys; rules of procedure; evidence; offences and punishment.Footnote ²⁹ According to the Order, military courts are authorised to adjudicate all crimes committed within the region and those committed outside the region if they were intended to damage or have damaged the region's security.Footnote ³⁰ The rules of procedure are similar to those of the Israeli criminal system (except for arrest periods). The substantive law has also been assimilated into Israeli law, applying the 39th Amendment to the Penal Code (1977) in the region.Footnote ³¹

Since their establishment in 1967, military courts have been occupied mainly with security offence cases.Footnote ³² However, the courts also handle various criminal offences to some extent (such as gender crimes, domestic violence and property offences). The military court system also operates a series of judicial committees that act as an appeal tribunal for decisions of the military commander. The military courts have implemented principles from Israeli law with the required changes. The Security Provisions Order has enforced significant parts of the Israeli criminal law in the region, and military courts have enforced various principles from Israeli criminal law through case law, thus improving the position of suspects and defendants in the region.Footnote ³³

In addition to the legal frameworks referred to above, principles of administrative law apply to the regional executive authorities, headed by the commander of the IDF forces and the civil administration. Former President of the Supreme Court of Israel, Judge Barak, succinctly expressed the ubiquity of Israeli administrative law, stating that ‘[e]very Israeli soldier carries with him in his “backpack” the basic rules of Israeli administrative law’. It is essential to clarify that the application of these fundamental principles to the actions of the military commander does not signify the imposition of Israeli law in the region. Instead, it implements additional provisions beyond international law, drawing inspiration from Israeli administrative law, to impose enhanced oversight (or heightened restrictions) on the governing authorities in the territory.

A consensus exists regarding the occupying power's authority to modify existing legislation when necessary. Both international literature and rulings of the Supreme Court of Israel suggest a diminishing weight over time concerning prohibitions on legislative changes. Conversely, the authority vested in military commanders to adapt legislation to contemporary needs has been on the rise. Section 3(a) of the proclamation regarding governmental and legal procedures authorises the military commander to amend local legislation. Consequently, decrees issued by the regional commander periodically serve as primary legislation. This dual role of the IDF commander involves wearing two legal hats. In the first capacity, the commander functions as a sovereign, serving as both a legislative and executive authority, thus subject to international law. In the second capacity, the commander acts as an extension of the State of Israel, subject to the administrative law rules prevailing in Israel.Footnote ³⁴

The military court system in the region has undergone many changes since its inception. The first structural change was made in the early 1990s when the Court of Appeal was established, following a recommendation by the Supreme Court in the Arjub case.Footnote ³⁵ Another change in the military judicial system occurred in 2004 when the military courts separated from the military advocate general, the chief officer of the military legal corps. Another significant structural change was made when a juvenile military court was established; this has significantly improved the treatment of young criminals and adopted a more advanced procedure for treating minors, similar to that practised in the juvenile system in Israel.Footnote ³⁶

As discussed above, the military government and the regional IDF commander wield broad administrative and judicial powers. This aims to ensure order and security in an area subjected to prolonged belligerent occupation. The concentration of legislative and executive authorities in the hands of the military commander necessitates heightened judicial oversight. Additionally, the military courts operate independently and with full autonomy, as stated in Article 10 of the Order regarding Security Provisions.Footnote ³⁷

2.3. Challenges to legal accessibility

Some claim that the laws and legal procedures of the military courts are neither familiar nor accessible to the Palestinians being tried in them. However, all military orders and legislation are translated into Arabic and published regularly in the Official Gazette for the region, the Qamtsam (an acronym for the Compendium of Edicts, Orders and Appointments). The translation is available on the website of the Coordinator of Government Activities in the Territories, which includes a search mechanism.Footnote ³⁸ Translating and publishing military laws and orders in Arabic significantly helps to overcome potential language and accessibility barriers. This availability allows Palestinian residents, lawyers and legal professionals direct access to relevant legal sources. It aids in understanding the military legal system, facilitates preparation for legal proceedings, and bridges the gap between the Israeli and Palestinian legal systems. Moreover, access to these documents enables Palestinian lawyers to specialise in representing clients in military courts, thereby improving the quality of legal representation.

Until 1967, Jordanian law – which, like Israeli law, originated from English common law – was applied in the region. Today, however, Palestinian law has evolved in a different direction and is closer to continental law. While divergent legal systems (continental or common law) may present theoretical challenges, the enduring reality of protracted military occupation has engendered practical solutions. Specifically, in recent decades, there is evidence of Palestinian attorneys, educated at Jordanian or Palestinian Authority (PA) law schools, successfully undertaking pupillages to represent defendants in Israeli military courts. A new generation of Palestinian attorneys from the Territories has emerged alongside veteran lawyers, gaining the requisite knowledge to practise within this exceptional judicial framework.

At the same time, reasonable differences between Israel's common law and the civil law traditions of the PA should not be overstated. Fundamentally, both uphold similar foundational principles. Each has its own legal hierarchy with considerable overlap in offences and protocols. Variations exist, particularly regarding statutory interpretation. However, in our assessment, misunderstandings are traced largely to accessibility gaps and linguistic barriers rather than irreconcilable ideological conflicts. With transparency and engagement, knowledge sharing can narrow these divides through cooperation.

Yet, current accessibility issues should not detract us from recognising the vital role of the military courts in subduing terror elements and enforcing the law in the Territories. As we shall see, despite certain limitations, the prevailing judicial system manages to maintain a reasonable balance between security considerations and defendants’ rights.

3.1. ‘The early period’ (1970s)

Following their establishment in 1967, the military courts examined the supremacy of international law and the applicability of the Fourth Geneva Convention in the region. For example, in the case of Hamza , which involved charges for possession of prohibited funds, the defence relied on international law in its claim that the decree prohibiting the possession of funds was not published and, therefore, its legislation was made in violation of the international convention regarding the preservation of civil rights in times of war. The court rejected this claim, stating:Footnote ³⁹

If this approach had been accepted, the ability to use international law as a legal tool to promote criminal justice in the region would not have been possible. However, other opinions were expressed in a later military courts ruling, stating that international law is the determining and supreme norm in an area under military occupation. This is how the military court determined the following:

It is important to note that Israel's official position at that time was that GC IV did not apply except for its humanitarian provisions.Footnote ⁴⁰

Despite uncertainties surrounding the applicability of GC IV to the region because of its constitutive nature and the country's voluntary commitment to adhere to the humanitarian provisions of the Convention, military courts have affirmed that the IDF constitutes the source of authority and sovereignty in the region under belligerent occupation. These courts have unequivocally determined that the IDF, with specific emphasis on the laws of armed conflict, apply the paramount norm governing areas subject to military occupation. It is noteworthy that, despite the avenue for petitioning the Supreme Court – particularly when it convenes as the High Court in relevant cases including those involving proclamations of the military commander – adherence to these norms must align with the principles of international law.Footnote ⁴¹

In the last two decades of the twentieth century (1980s and 1990s) there is no reference to international law in the rulings of military courts.Footnote ⁴² Three examples can explain this: (i) the military courts were still in a formative stage during this period and focused more on establishing internal procedures and legal norms for operations rather than engaging deeply with international legal doctrines; (ii) the outbreak of the First Intifada in 1987 shifted attention towards addressing widespread protests and violence (applying principles of international law is likely to have been overshadowed by constant efforts to restore order); and (iii) global communications and media coverage then paled in comparison to modern times. This relatively limited external visibility resulted in less pressure on the courts to model conduct and rulings based on international legal standards.

However, the central reasons for the lack of reference to international law in rulings during this period more likely relate to the judges’ limited knowledge of international legal principles and the failure of defence attorneys to raise challenges based on international law.

Since the 2000s, there has been a trend of renewed flourishing in international law of military court rulings. This may be related to the trend in the Israeli courts, especially the Supreme Court, to gradually increase its application of international law.Footnote ⁴³

3.2. ‘The contemporary period’ (2000s)

The Schwartz case in 2006 is a prominent example of this trend. The military commander ordered that Schwartz, a resident of the region, should have limits placed on his movement in the region. The Military Court of Appeals was required to answer whether it is authorised to examine the ‘constitutionality‘ of the military commander's orders, which constitute primary legislation. The military court determined, relying on international law, that it is authorised to review the ‘constitutionality’ of such orders based on the norms of international law. Another vital rule established in the decision is that international law is superior to the internal law of the region; as much as there is a contradiction between the legal systems, international law prevails.Footnote ⁴⁴

In the past, despite the acknowledged binding nature of norms of international law, judgments of the military courts underscored the primacy of internal law, specifically the order concerning security instructions, as binding upon the military court. This stance permitted challenges on a constitutional basis, with recourse to the Israeli Supreme Court in its capacity as High Court of Justice. In contrast, the Schwartz case firmly established the authority to conduct judicial review of the legislation enacted by the military commander in the region through the lens of international law.

In the Mashahara case in 2014, the Military Court of Appeals discussed supplementary issues in the Schwartz case,Footnote ⁴⁵ The appellant's attorney attacked the adaptation of legislative amendments made to the order regarding the authority of military courts to revoke a prisoner's parole. The Court of Appeals reiterated its determinations in the Schwartz matter that military courts are authorised to examine the constitutionality of the military commander's legislation according to the norms of international law. It detailed how the said authority of review was exercised while using the constitutional tests adopted in Israeli law.Footnote ⁴⁶

3.3. Examples of fundamental applications

It should be emphasised that the importance of the Schwartz case is not only in establishing the norms of international law as super norms in the law of the region but mainly in the authority that the military courts considered themselves able to annul the primary legislation of the sovereign in the region where it does not comply with the instructions of international law.Footnote ⁴⁷ Thus, despite the possibility of petitioning the Supreme Court, it seems that the Court of Appeals ruling renders this unnecessary as it does not allow the implementation of a law contrary to the instructions of international law.Footnote ⁴⁸ As can be seen from the judgments above, it is possible to see a considerable jurisprudential development, and not only exceptional cases, of preferring the norms of international law in the face of conflicts between them and the legislation in the region.Footnote ⁴⁹

3.4. The principle of public discussion

In the case of Dar-Khalil , who was engaged in membership of the terrorist organisation Hamas, the military prosecution asked to hear the testimony of members of the General Security Service behind closed doors.Footnote ⁵⁰ As there was no explicit reference to the issue in the region's law, the military court turned to sources of international law. The Court of Appeals recognised that in international law, particularly in the rules of military occupation, there is a broad expression of the principle of public hearing.Footnote ⁵¹

In this case the Court relied on GC IV, which states that it is more for the representatives of the ‘protecting power’ to be present at the trial of any protected person, except for cases in which it was decided to investigate the trial behind closed doors for the benefit of the security of the occupying power.Footnote ⁵² The Court determined – by Regulation 43 of the Hague Regulations and by Article 64 of GC IV – that alongside the interests protected under the rule relating to publicity, the discussion (such as fairness of the procedure and public trust) has exceptions. These exceptions include the interests of maintaining security and preventing the witness from being deterred from testifying freely.

3.5. Publication of the law

In the Hodley case, international law assisted the High Court in resolving an issue arising from publication of the law.Footnote ⁵³ Hodley was accused of membership of an association that had been declared illegal and claimed that she was unaware of this declaration. The military court ruled that, following Article 65 of GC IV, there is an obligation to publish the law in the language of the protected residents, although no details concerning appropriate ways of issuing these rulings were provided. The Court examined an interpretation of this provision found in the International Committee of the Red Cross (ICRC) Commentary edited by Jean Pictet, which suggested several methods of publication, including advertising in the local media and displaying notices in public places.Footnote ⁵⁴ The military court, therefore, determined that the orders of the military commander are also published in Arabic through the file of proclamations of the orders, and are therefore compatible with international law.Footnote ⁵⁵

3.6. A detainee's right to be present at hearings of his case

Another aspect of principle addressed by international law pertained to a detainee's participation in hearings conducted in his case in the High Court. In the case of Aziz, in 2007, the Court of Appeals deliberated on the correct interpretation of a temporary order applicable in the region. This order permitted the holding of hearings on requests to extend the detention of a suspect involved in security offences without requiring the suspect's presence.Footnote ⁵⁶ The Court conducted a two-stage examination of the case. Initially, it considered justifications for conducting a custody hearing in the suspect's absence. It was determined that the security rationale supporting the decision to order a person's arrest without their presence is grounded in Regulation 43 of the Hague Regulations and Article 64 of GC IV. Nevertheless, the Court observed that holding a detention hearing in the absence of the suspect is an uncommon practice in international law.

The Court drew upon AP I (relating to the protection of victims of international armed conflicts), which stipulates that ‘any person accused of a crime shall have the right to be tried in his presence’. This mirrors a similar provision articulated in Article 6(2)(e) of the Second Protocol to GC IV (relating to the protection of victims of non-international armed conflicts).Footnote ⁵⁷

In addition to the above sources the Court invoked human rights law, referencing explicitly Article 14(3)(d) of the International Covenant on Civil and Political Rights (ICCPR), which asserts that ‘everyone shall be entitled to … be tried in his presence’.Footnote ⁵⁸ Furthermore, the Court considered the statutes of the International Criminal Court (ICC), the International Criminal Tribunal for the former Yugoslavia (ICTY), and the International Criminal Tribunal for Rwanda (ICTR).Footnote ⁵⁹ Drawing on these international legal frameworks and considering prior rulings from both the Supreme Court and military courts concerning the fundamental rights of detainees, the High Court concluded that provisions allowing the extension of a suspect's detention without their presence resulting from severe violations of basic legal principles in the region should be interpreted with circumspection and applied carefully and strictly.

In sum, starting in the 2000s, the military court recognised the special status of international law as the region's supreme legal norm; it was used to decide several fundamental legal issues that had been put before it. However, despite the expansion of international law in recent years, it seems that the possibility of relying on this branch of law to find solutions to everyday legal questions in criminal law is limited.

4.1. Limitations stemming from the nature of international law

Despite the inclination of military courts to utilise international law as a reference for resolving specific legal disputes, the feasibility of such application is constrained because of its nature as a system grounded in general principles with less precise rules. As international norms reflect global consensus, they may sometimes be ill-suited to address distinctive conditions and threats within the region's security environment and social fabric. Their direct implementation has posed challenges. Furthermore, within the unique reality of the region, military courts often adjudicate cases concurrently with Israeli courts. When a terrorist cell involves individuals who operate in Israel, and are therefore subject to trial within the Israeli legal system, alongside residents from the region facing proceedings in military courts, considerations of fairness and justice necessitate the application of similar if not identical legal systems. Consequently, the preference for adherence to Israeli law interpretation is more prudent than adopting ad hoc norms of international law.

However, some argue that, at least in principle, international law could have been directly applied in criminal proceedings. In theory, the general principles of international humanitarian and human rights law provide a sufficient basis for underpinning the criminal process, encompassing extensive forms of protection for defendants’ rights. However, analysis of jurisprudence and literature shows that these principles are not practical enough for most applied issues in criminal matters. Hence, there is a need for a more comprehensive and coherent system.

Furthermore, we contend that to safeguard and advance the rights of individuals involved in criminal cases, it is appropriate for military courts to rely on a well-developed legal system, which embodies an organised and cohesive normative framework for rulings, such as Israeli criminal law. A comprehensive criminal justice system is deemed more advantageous than the selective incorporation of ambiguous norms from international law to address the courts’ myriad of criminal issues.

Moreover, a substantial portion of international law pertinent to the region, particularly the laws of war, is not aligned with the day-to-day reality in which military courts operate. It should be recognised that IHL distinguishes between norms governing armed conflict and belligerent occupation, with the latter also encompassing law enforcement paradigms.Footnote ⁶⁰ Still, the fundamental premise of many laws of war relies on active combat conditions. Conversely, in the region, authorities like military courts typically function under a law enforcement framework in situations persisting since 1967. Consequently, this context emphasises individual rights and the rights of suspects and the accused through criminal law principles. Military courts’ adherence to criminal law and jurisprudence in Israel is thus fitting for the reality of protracted occupation, while international human rights law can still provide interpretive guidance on protection. This approach proves beneficial for the region's residents.Footnote ⁶¹

These factors were expressed precisely during the challenging period of fighting against the waves of Palestinian terrorism that began in 2000. During this period the military judges acted to fortify and expand the rights of the accused and the suspects brought before them.Footnote ⁶² In a consistent and prolonged ruling of the military courts, the defences of the applicable penal laws were adopted in Israel (some of which do not exist in international law), outdated doctrines were abolished, and additional rights for those involved in crimes were established. In a series of precedent rulings, the legal situation changed and a legal climate was created that gave more weight to the rights of those involved in crimes.Footnote ⁶³ This approach aligns with the requirements of international law for judging territories held under martial law.

4.2. Advantages of the Israeli legal system

Additionally, two practical factors contribute to the limited utilisation of military court rulings. Firstly, there is a requirement for judges to possess a sufficient understanding of international law, a field in which the majority of their training is acquired within law faculties in Israel. Unlike the comprehensive knowledge that judges accumulate in criminal law matters, their academic and practical training often lacks extensive exposure to international law.

Second, defence attorneys must seek consultation for arguments grounded in international law. Consequently, the court finds itself in a situation where if there is a desire to invoke international law, it necessitates going beyond the parameters initially delineated by the defence. Such a situation is incompatible with the adversarial legal system, in which the court typically decides between the arguments presented by the parties and does not proactively propose alternative ideas or directions for the decision.Footnote ⁶⁴

In summary, a criminal court seldom necessitates recourse to international law, whether in the region or a state jurisdiction. Most of its functions involve applying criminal law, handling detention extensions, issuing judgments and imposing sentences that typically do not pose questions, in which international law offers additional insights beyond customary criminal law. As demonstrated by the examples above, the incorporation of international law in military court rulings occurs selectively in distinctive cases marked by principled or complex legal issues.

5.1. Arrest laws

First, we consider the law relating to arrest. As is customary in other legal systems, in the region the court regulates the possibility of arresting a person for investigation and even extending his detention during his trial. The law of the region includes judicial supervision of arrest and release procedures, and it also regulates issues of authority, policy, periods, conditions of release, and more.Footnote ⁶⁷ Arrest laws in the region have undergone many transformations that bring their provisions closer to those of Israeli law. This rapprochement occurred mainly as a result of military court rulings, which relied heavily on their verdict on Israeli law, with the view that, even if it is difficult, it will improve the rights of those involved in crimes.

In all its decisions related to interpreting laws relating to detention, the Supreme Court drew inspiration from the principles and rules of the Israeli Arrest Law and the Basic Law: Human Dignity and Freedom (which, in Israel, is part of the human rights chapter of the informal constitution). The Basic Law: Human Dignity and Freedom does not apply to the region. The exception is arrest.Footnote ⁶⁸ Similarly, the balance point has changed in the conflict between the public interest and the interest in release of the suspect or the accused. In the past, it was determined that the public interest in prolonging detention would prevail. Today, however, the court will require a more careful balance, within which significant weight will be given to ensuring that there is limited harm to the freedom of the individual. This profound change has also spread over many issues in the region's detention laws.Footnote ⁶⁹

The rights of argument and representation were recognised as central rights that influenced arrest procedures to the point of release, where these rights were violated.Footnote ⁷⁰ Indeed, international human rights law is also based on broad standards of rights protection, which could have been applied in rulings. However, it appears that the courts sought more precise and actionable guidance than that offered by the general principles of international law. It may be possible to direct judges towards international humanitarian law. Still, here is an example of the current reality in which judges use what is familiar to them: the Israeli Detention Law and the Basic Law on Human Dignity and Liberty.

Military courts developed the laws of detention relying on Israeli law and not basing it on international law. This is because even if international law includes many principled references to ensure the rights of an arrestee or prevent false arrests,Footnote ⁷¹ it does not contain detailed regulations regarding concrete issues in the area of arrest. By way of illustration, when a problem arises over when to bring a suspect before a judge, international law contains general guidelines on bringing a suspect before a judge without delay. As a rule, these sources use uniform language such as ‘shall be brought promptly before a judge’,Footnote ⁷² ‘without delay’ or ‘as short as possible’.Footnote ⁷³ – but what exactly is meant by ‘without delay’: 24 hours? 48 hours? 7 days? Maybe more?

To these vague principles there are diverse positions in the jurisprudence of international tribunals on the question of timing for bringing a suspect before a judge. In the Martinez Portorreal case, for example, the UN Human Rights Commission determined that 50 hours of detention does not violate Article 9(3) of the ICCPR.Footnote ⁷⁴ In the Balgeth and Brink caseFootnote ⁷⁵ the European Court of Human Rights (ECtHR) determined that over six days of arrest before bringing the detainee before a judge does not comply with Article 5(4) of the European Convention on Human Rights (ECHR). In a later ruling of the ECtHR, it was determined in the Brogan case that, according to Article 5(3) of the ECHR, a person's detention should not exceed three days before being brought before a judge.Footnote ⁷⁶ In another case, the ECtHR approved seven days of arrest pending judicial review.Footnote ⁷⁷

In other words, there is no clear and detailed code in international law (in human rights law or the rule of belligerent capture) that includes practical instructions to guide issues in the regulation of arrest that can be a guiding source or a straightforward interpretive tool for the military court judiciary. Considering this, it is natural that, in the spirit of these questions, the judges will turn to the twin brothers of the arrest laws in the region: the Israeli Arrest Law and its interpretation in the ruling of the Israeli Supreme Court.

By way of background, technically Jordanian law still applies in criminal matters but, being formulated in 1967, it thus fails to address contemporary contexts, notably security issues.Footnote ⁷⁸ Theoretically, we could rely on Jordanian legislation; however, it clearly requires updating to align with current standards on defendants’ rights. Similarly, while some propose consulting Palestinian law,Footnote ⁷⁹ realities suggest that this would profoundly violate rights of detainees, given the documented systemic issues in their legal system.Footnote ⁸⁰ Updating outdated Jordanian law based solely on abstract international legal principles also poses difficulties. Hence, while perhaps counter-intuitive, embracing facets of the robust Israeli criminal justice system, despite its flaws, may pragmatically afford the strongest protection for Palestinian defendants in terms of detailed due process and evidentiary procedures absent in alternative frameworks.

Similarly, and perhaps more acutely, it is possible to demonstrate the priority of using Israeli law over international law in promoting the protection of detainees’ rights in relation to the grounds for arrest. The law in the region is silent on the grounds for arrest required to hold a person in custody during his trial. Military courts have also adopted this trend of implementing the grounds for Israeli detention in the area; such adoption can be seen in the case of Abdul Saleem, which shows that although the Israeli detention laws do not apply directly in the region, the court must act according to its instructions as a rule.Footnote ⁸¹

Accordingly, if, in the past, it was enough to submit an indictment that included a security offence to establish sufficient grounds for arrest,Footnote ⁸² the military courts began to require that there be grounds for arrest in the same way as under Israeli law to justify detention. This is how it was determined in the Haj-Hssein case.Footnote ⁸³

Since the Saleem case, in every case where a request is submitted for detention until the end of the proceedings, it has been customary for the courts in the region to examine not only if, based on first impression, there is prima facie evidence to prove the allegations attributed to the accused, but also the existence of a reason for detention; the question is also examined if there is an alternative to detention that falls short of it in severity.

In the Nachla case, the law in the area of grounds for arrest was concluded as follows:Footnote ⁸⁴

Also, similar to the question of the period of arrest, if military courts avoided drawing the grounds for arrest from Israeli law, it is doubtful whether they would have been able to use international law to create the foundations for arrest in the region. The military courts in the region are required to strike a complex balance between individual freedom and the public interest in reaching decisions in the tens of thousands of hearings a year that take place before them. Like the other questions related to the laws of arrest, an examination of international legal sources reveals a lack of detailed reference to the issues of the grounds for the arrest of suspects or defendants. For example, there is no specific provision regarding the grounds for detention in criminal proceedings in GC IV or the Hague Convention of 1907 and attached regulations. Requirements to this effect are not even found in human rights law, such as in the ICCPR, the American Convention on Human Rights,Footnote ⁸⁵ the African Charter on Human and Peoples’ Rights,Footnote ⁸⁶ or the ECHR.Footnote ⁸⁷

Over the years, therefore, military courts have developed the grounds for arrest as a danger to the security of the region and the public and fear of disrupting the investigation or trial procedures (if the suspect has not been arrested), while relying on an advanced source of law, which has developed on this issue – in other words, Israeli law. To summarise this point, a quick look at the arrest laws of the region is enough to demonstrate the inadequacy and inability of international law (both the rules of military seizure and the laws of human rights) to address these questions. The changes made to the provisions of the laws of arrest in the region were, therefore, inspired by Israeli law.

5.2. Limits of criminal liability

A further example of the advantage of relying on criminal law to guarantee the rights of the accused is found in judicial rulings in connection with the responsibility of commanders of terrorist organisations. In one such case, the fundamental issue arose of the responsibility of the heads of terrorist organisations regarding offences committed on their behalf by operatives, without having directly participated in those offences or being aware of their commission.Footnote ⁸⁸ With regard to the limits of criminal responsibility, the court found that international law is the strictest compared with American or Israeli law. It states that it is possible to convict a commander, as mentioned, whose status is similar to that of the head of a criminal organisation or head of a terrorist organisation, not only when they took part in the act of the crime or motivated others to act, directly or indirectly, but also when they were in charge of the perpetrators of the crime and did not prevent its commission or when they did not act to locate the commission of the crime.

These arrangements are found, for example, in Article 7(1) of the ICTY Constitution and Article 6(1) of the ICTR Constitution. The ICTY ruling in the case of the war criminal Tadić even expanded the conditions for the personal responsibility of a defendant according to this section when it stated that ‘[a]ll those who have engaged in serious violations of international humanitarian law, whatever and however they may have perpetrated, or participated in the perpetration of those violations, must be brought to justice’.Footnote ⁸⁹

The Military Court of Appeals examined the suitability of international law in this respect and, based on Israeli law, it concluded that the doctrine in international law, which significantly expands criminal responsibility, is too strict for the circumstances in the region and causes difficulties. At the level of principal, it was found that in cases where the head of the organisation was not involved in a crime, this is contrary to the principle of imposing criminal responsibility without a behavioural component. At the practical level, in the region there is no necessity for a clear commander-in-command relationship between the chain of activists, and on more than one occasion a person has acted under the responsibility of more than one party or, alternatively, while ignoring the words of his superior.

The field of criminal responsibility shows that even when there does exist a criminal norm in international law, it may not provide a legal answer to a concrete issue. It is often unsuitable for application in the reality of the region and may even become worse for the accused. Adherence to a more developed and detailed criminal justice system, such as the Israeli system, allows the court to establish norms that are more compatible with the principles of criminal law and align more closely with the legal system practised in the region.

5.3. Rights of minors

It is possible to demonstrate, once again, the inadequacy of international law to assist the military courts in resolving legal questions from the field of criminal law concerning the rights of minors in criminal procedure for youth.Footnote ⁹⁰ International law pays much attention to criminal cases involving minors. For example, we can point to the establishment of the International Convention on the Rights of the Child (CRC) in 1989.Footnote ⁹¹ which established the principle of ‘the best interests of the child’ as the overriding principle in all decisions of governmental authorities concerning minors. The United Nations Committee on the Rights of the Child, an expert and independent UN body responsible for implementing and interpreting the Convention, has published various guidelines on this issue. In its policies, the Committee emphasised that the member states of the Convention must implement and respect the principle of rehabilitation at all stages of criminal procedure. They also need to provide measures to ensure that minors who break the law receive appropriate support and assistance for their reintegration into the community after imprisonment.Footnote ⁹²

In addition, the Committee emphasised that member states must carry out an independent periodic examination and evaluation of the various programmes and tools they use concerning their effectiveness in promoting reintegration into the community.Footnote ⁹³ Alongside the CRC, guiding legal standards on juvenile delinquents adopted by the UN also emphasise the rehabilitative rationale of criminal procedure. The Beijing Rules of 1985 established legal standards for managing unique legal systems for minors who break the law and include references to rehabilitating juveniles after imprisonment.Footnote ⁹⁴ Furthermore, the UN Economic and Social Council has recommended rules regulating children in the criminal justice system.Footnote ⁹⁵

Although these general instructions can serve as a source of inspiration for military courts, they do not provide practical tools for implementing the instructions. Therefore, to the extent that the court sought to apply actual content to the general principles of international law and give them practical implementation, it made use of the juvenile-related laws of the Israeli system; these include a series of moral determinations adopted by Israeli rule in the field of minors: interrogation hours for children, the presence of parents during interrogation of minors in the region, receiving an arrest report in respect of the minor concerned,Footnote ⁹⁶ guidance regarding lenient punishment for juveniles,Footnote ⁹⁷ as well as several other aspects of criminal procedure adopted in regions in which Israeli law is used.

The examples given are just the beginning of the substantial gaps in international law regarding providing answers to applied questions of criminal law, such as is practised in the region. The difficulties listed above, compared with the clear advantages of sticking to a regular criminal justice system (such as the Israeli legal system) explain why there is a reduction in the use of international law by military judges compared with the extensive use made of Israeli law to supplement orders or resolve legal questions.Footnote ⁹⁸

As exhibited across the three self-reinforcing factors explored here, criminal law involves applied micro-issues that are often incongruous with the broader framework of international law. These exacerbated difficulties of criminal justice, building upon previously noted conceptual gaps, demanded a concentrated analysis – hence the focus of this section outlining the additional limitations of international law in the criminal context, as well as the resultant needs.