IDF's West Bank court chief steps down after a decade

It was toward the end of the Second Intifada.

A Palestinian terrorist had attacked a bus near Beit El, killing an entire family.

When the terrorist was brought to trial in the IDF West Bank courts, extended family members of victims were among the first to show up.

The IDF and other security forces were not prepared for this rare and then-new trend. The family members did not receive a proper security check, and one of them succeeded in bringing an unauthorized gun into the courtroom.

The story illustrates how far the IDF military courts have come both conceptually and procedurally when dealing with questions related to terror victims’ families.

One of the leading voices in this revolution was IDF West Bank Court chief justice Brig.-Gen. Netanel Benishu, who retired in February after an extended nine-year term. (His predecessor served a six-year term; many generally serve three- to five-year terms.) Incidentally, earlier this week, an event was held in his honor.

The French-Israeli judge made aliyah in 1985 at the age of 15 and joined the IDF in 1992. For the next 30 years, he served in a variety of posts, including 24 years on the bench and 17 years on the top IDF West Bank Appeals Court.

Multiple sources have told The Jerusalem Post (conveying a portrait of Benishu’s tenure requires sniffing around a variety of legal figures, given his aversion to media attention) that evolution with such new issues tends to first happen in Israeli courts and then trickle down a few years later into the IDF West Bank courts.

Some victims show up at the largest site for the courts at Camp Ofer off Route 443 between Jerusalem and Tel Aviv. Even more show up at the courts located in Salem in the North.

Before the revolution, which Benishu helped speed up during his almost decade in charge, there were no separate seating areas for victims’ families and the defendants’ families. This created the awkward and potentially explosive situation of seating them next to each other.

Sources say that in the past, there had also been no way for the families to communicate with the prosecutors, to get updates about the cases.

In addition, a waiting room for these families was finished only two years ago, despite a steep rise in families attending the courts since 2014. It took time getting funding and developing procedures for how the victims’ families would physically enter the relevant army base court sites, and establishing what kind of security check they would undergo.

It also had to be determined when victims’ families would get to speak in the court proceedings, how long they would get to speak, and whether they could file requests to view the case evidence.

Sources said that one issue which has been debated both in Israeli civilian and IDF military courts is whether the families of victims can be present in cases where the alleged murderer is a minor.​Another​ sensitive issue involved how much of an emotional impact ​the ​families of​ the​ victims would have on the judges.

In some instances, families of Jewish victims were close to physically striking the Palestinian family of the defendant, though the family members were not accused. Since then, many more security officials were placed in the courtroom.​Victims have also started to file estimates for their compensation in the millions of shekels. This was far above the tens of thousands​,​ or ​several hundred thousand shekels​,​ that judges were accustomed to.

In October, the top IDF West Bank Appeals Court, presided over by Benishu, called on the IDF West Bank commander and the Israeli government to find a way to enforce its punitive damages rulings against Palestinian terror murderers.

Benishu, as well as judges Lt. Col. Ronen Atzmon and Lt. Col. Yair Tirosh, ruled that punitive damages for terror murders could be unlimited, and granted the victim’s family NIS 1.5 million in punitive damages.

In unusually strong language, Benishu, only months before retiring, lamented that the IDF prosecution and related law enforcement apparatuses have mostly failed to collect on these awards. He said that the IDF West Bank commander should pass legislation to ensure collecting these damages.

Did his headline-making public criticism make a difference? It appears, sources would say, the answer is an unequivocal “no.” At best, the prosecution hasn’t tried to handle these changes.

Still, they might eventually be dragged into the reforms depending on how much the public pressure on the prosecution escalates. While much of the law is technical, the question of collecting damages is clearly laden with political significance.​The following are other​ important​ issues that ​arose during Benishu’s lengthy tenure.

Administrative detention

In 2018, former IDF chief prosecutor Col. (res.) Liron Libman pushed to reform administrative detention. The reform could include having a central public defender, with the role likely being a semi-retired former judge, who would view all top secret intelligence against a Palestinian detainee, and who would advocate to expose more of that material to the Palestinian’s personal lawyer, to the extent that this would not expose intelligence sources.

Libman had a powerful ally in Benishu, who wrote a journal article strongly supporting the reform, and in a more passive way, former Supreme Court justice and attorney-general Elyakim Rubinstein. Benishu also wrote that four out of five Supreme Court justices queried about the issue in the past said that they supported the idea.

Some sources suggested changing the name “administrative detention.” They said it is not administrative detention, but preventative detention. Whatever it is called, without a judge’s approval, there would be no administrative detention. This is an issue that disturbs many on the Israeli side.

Critics always say that the detention occurs with no evidence. The Israeli retort maintains that is inaccurate, since even if the detention is not based on evidence to a criminal standard, it is based on administrative law level evidence. This could mean the evidence must be around 70% convincing versus 90% in a criminal case, and 51% in a civil case.

Further, the IDF side would say nothing is granted in terms of detention unless it is almost certain that the detainee presents a significant danger, and that there is no other way to stop him.

Proposed Reform Bill

Following a push by Libman, Benishu and Rubinstein, there was a proposed reform bill, which former Shin Bet (Israel Security Agency) chief Avi Dichter supported – though it eventually went nowhere. They are seeking to reform  administrative detention because even if legal, it is draconian, and there are problems with the perception of justice when balancing competing values.

Israeli reformers note that one reason that changes are being held up is because the public often does not care about the issue, unless there is an administrative detention hunger strike, with the detainee near death in the hospital.

Sources say that the prosecution and the Shin Bet have no interest in reforms to administrative detention, preferring secrecy. They also may not want a judge who knows the inside-outs of the system to let in more evidence, concerned that a judge may unintentionally leak sources and methods.

In contrast, the criminal process is all about exposing all relevant facts.

Though Israelis who want to reform administrative detention face opposition from both hawkish and anti-occupation groups, sources said that when the IDF carried out reforms for the treatment of minors, the criticism became more nuanced.

Moreover, most of the criticism today is not about the courts. Instead, it is about other aspects of the Israeli system, such as the Israel Prisons Service. In any case, some top IDF officials favor reforms for minors because – with or without critics – Israel needs to do what is best for human rights and must apply the evolving liberal principles of Israeli civilian law.

Declaration of Terror Groups

Regarding the October 2021 declaration of six Palestinian NGOs as terror groups, anyone working in the court for more than two days would probably designate Addameer as an arm of the Popular Front for the Liberation of Palestine. The declaration came from the IDF high command and Israel’s political echelon, but Benishu was left to sort through much of the legal mess it created. Ninety-nine percent of Addameer cases are representing PFLP defendants, sources said. 

Addameer and the other NGOs strenuously reject the charges and accuse Israel of targeting Palestinian civil society. For judges, the connection between some other groups, like Defense for Children International (DCI) and the PFLP, may be less clear. DCI especially represents many minors, so any connection to the PFLP would be less obvious.

However, IDF prosecutors, including former chief prosecutor Lt. Col. (res.) Maurice Hirsch, are exposed to a wider intelligence picture than judges regarding these groups. Many of them support the terror designations even for DCI and the other groups, citing testimony from multiple Palestinians incriminating the groups.

Most judges are probably supportive of the terror declaration despite the problems that came out of it diplomatically with the US, the EU and the UN. They would say that there are some defense lawyers who do things that can help terror groups indirectly.

Some in the IDF are mystified at the PFLP’s success at creating a non-terrorist image yet still carry out terror attacks. Though they are more left-wing and talk a lot about human rights, sources stated that many of them are still terrorists who carry out terror attacks. In fact, some say that currently there are even more PFLP attempts to carry out terror attacks than in the past.

Summoning Minors

Another issue that came up during Benishu’s tenure was whether to reduce night arrests of Palestinian minors. Sources said that it is a pity that written summons are not used more to bring Palestinian minors in for questioning, instead of arresting them at night. But judges are not very involved at the arrest stage. As long as the arrest does not violate a law, the courts cannot say much.

Most of the cases where summonses are issued involve low-level crimes and punishment. Some judges maintain that many of the Palestinians would come to court if summoned. If they have to pay a fine, they will pay. They have no interest in getting into a conflict with the law, say sources. Statistically, the IDF has said those summoned come voluntarily about one-third of the time.

There are those in the IDF who admit that at times the training of security forces performing arrests is not good enough and that sometimes Palestinians are unnecessarily roughed up. They would like to avoid this, and might also argue: if Israel is endangering security forces when making arrests, why not avoid that?

Issuing summonses can also save time, since most arrests require someone from intelligence and the police to judge whether they will run away or not. Further, most cases only lead to jail time of about six months – so why risk a fight in a Palestinian village even if you may risk not arresting the person?  

A pilot summons program started in 2014, ran for a few years, stopped and then restarted in the summer of 2021 under pressure from a High Court case, near the end of Benishu’s tenure. It is unclear whether the program will continue.

Violating the Geneva Conventions?

On July 24, 2013, Benishu accused the IDF West Bank Prosecutor’s Office of “systematically” violating some Palestinian defendants’ fundamental rights to a fair trial, including rights under the Geneva Conventions. 

The specific issue, noted Benishu, was that the IDF prosecution systematically delayed turning over orders, and sealed classified evidence to the defense until right before trial.​There are two ways this late delivery method harms the courts: The courts must postpone hearings, which nobody likes. It can also harm the defense’s ability to make its case because it is hard for it to prepare for the trial.

Moreover, Benishu said that the court had warned the IDF prosecutor of this problem in the 2009 Hamad decision, and that “four years later this issue is still left broken as it was, where the prosecution violates its obligations to the defendants time after time.”

He then ordered the IDF prosecutor to develop a new set of formal guidelines to avoid the recurrence of the issue. Sources would lament that with these sealed classified orders, nothing changed before 2021.

Benishu sometimes ordered Palestinian detainees be freed, who otherwise would have remained under arrest, simply to send a message to IDF prosecutors. There was the impression that Benishu got mad and was not going to allow the issue to continue.

Judges would say that the harm to the defendant is unjustified and warned the prosecution about this many times. However, they always heard back from military lawyers that they were working hard on the issue in order to set new procedures.

Clear protocols are needed about how long the prosecution can take before it issues an order sealing classified evidence, and about how much of an extension it can ask for, to issue the order. In Israel, such orders are supposed to come with the indictment, but the prosecution routinely asks for an extension to file the orders later than the indictment.

A reform would also require the IDF prosecution to request an extension for these orders. This will both make receiving the orders conditional on court approval and limit how much of an extension they can receive.

 Sources said there is a justification for departing from Israeli law in the West Bank only if there is a real security reason to do so.

Arabic

The Benishu era saw most judges studying some Arabic. This can help increase a judge’s oversight capabilities somewhat over the often young court translators. Benishu also got major additional funding for a career translator position as opposed to a non-enlisted officer position.

There is also a new program for educating new, young court translators to follow up with their progress and to provide them with continuing education opportunities. None of this solves all of the language confusion issues, but it is some progress.

Familiarity with Palestinian Culture

Judges now attend seminars about Palestinian society and learn the nuances of what is happening in the West Bank and their courtrooms. 

Palestinian culture is changing. Some neighborhoods are more conservative and patriarchal, but some are more secular. One message from the Benishu era is for judges to know the realities of the area which their rulings impact.

In this view, the West Bank cannot be viewed just from the perspective of security. Sources would say judges must understand the difficulties, challenges and perspectives that Palestinians face and have to confront.  ■