On matters of objectivity and judicial fairness, one lawyer said:
"There should be three sides in a trial - defense, prosecution and judge - and each should be independent from (the other). Here, both the prosecution and judge have the same role," so the scales of justice weigh heavily against defendants.
In military courts, seven-member committees appoint judges, then approved by the West Bank's military commander. The physical setting is also troublesome as it's located on one of two West Bank military bases. Prosecutors and judges wear uniforms. Proceedings stop at 1PM so they, translators and soldiers may eat together in the mess hall. Defense lawyers are excluded, are on their own to provide meals, and have no access to prosecutor - judge consultations outside of court.
Also troublesome is the training of court officials. Most prosecutors provide service as part of their military obligation and have no training or experience in civil proceedings. Those remaining in the IDF go on to become judges, "putting them in the position of evaluating cases brought by their former colleagues. This means that many people brought up in the system and have never appeared in a civil court, but now they're judging their friends and past friends," so most defendants don't have a chance before them.
Differences between military and civil courts are especially stark. "Lawyers who defend Palestinians must contend with inequalities arising from two systems of law in Israel and the OPT." Civil law provides greater protections, but Occupied Palestinians generally don't fall under its jurisdiction.
For example an Israeli and Palestinian may be charged with the same offense, such as participating in an unauthorized demonstration. In civil courts, an Israeli, at most, faces a fine and suspended sentence for a first offense. In contrast, Palestinian face up to ten years in prison for exercising what Americans call free expression and the right to assemble.
"Some of the most glaring differences between (civil and military proceedings) are in the treatment of juveniles." Israeli civil courts protect them with special procedures not available to Palestinian youths in military courts making them as vulnerable to injustice as adults. In addition, juveniles as young as 17 serve sentences in adult prisons. Only those 16 and younger go to special facilities for youths.
Israeli Arabs are as vulnerable as Palestinians in the Territories for judicial fairness. They may be tried in military courts, and according to the "test of most connection" in Israeli law, Jerusalem Arabs come under the jurisdiction of military courts if accused of committing acts constituting security threats in the eyes of authorities.
Around 98% of the time, plea bargains, not trials, settle things because lawyers prefer them for the following reasons:
-- they often best serve clients under a grossly unfair system; so if a defendant confessed under torture and it's admitted as evidence, a plea bargain is the best option;
-- civil cases must be completed in nine months, but military ones may take two years without bail for charges bringing shorter sentences;
-- the ordeal of trial and detention, family separation, and other systemic inequities means clients are better served by ending proceedings faster;
-- going to trial and losing may bring harsher sentences because the courts are so overloaded, the authorities want fast resolutions and aren't pleased when they're extended; and
-- it's hoped that bending to the prosecution will bring greater leniency; contesting is generally futile and harmful to client interests under an unfair system.
Appeals
Military Courts of Appeals accept them, and orders barring access to lawyers and extending administrative detentions may be appealed to Israel's High Court. In cases involving security threats, appellate reviews don't help. Succeeding presents an onerous burden requiring lawyers to prove legal errors or effectively demonstrate that sentences were unfair.
