The Presumption of Innocence & The Burden of Proof
A summary of the role of the detention and interrogation phase in the prosecution of Palestinian juveniles in the Israeli Military Courts
During 2006 and the first half of 2007, almost all Palestinian children who were arrested by the Israeli occupying forces in the West Bank and then charged and prosecuted before the Israeli military courts, were sentenced to a term of imprisonment.
Only 3 to 5% of these children were granted bail pending trial or sentence proceedings.
In the same period, almost all Palestinian children pleaded guilty. A very small minority of approximately less than 1%, who pleaded not guilty, were all ultimately found guilty, convicted and sentenced.
Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence. Universal Declaration of Human Rights, Article 11(1)
Everyone charged with a criminal offence shall have the right to be presumed innocent until proven guilty according to law. Covenant on Civil and Political Rights, Article 14(2)
Unconvicted prisoners are presumed to be innocent and shall be treated as such. UN Standard Minimum Rules for the Treatment of Prisoners, Rule 84(2)
Almost all children who were prosecuted and sentenced in the Israeli Military Courts in 2006, confessed to the allegations against them during a lengthy period of interrogation, before their first Court appearance.
I was arrested on the street near Rachel?s Tomb by the Israeli Army. They claimed that I had been throwing stones and Molotov Cocktails. When they arrested me theyseverelybeatme. They tried to pull down my pants. They sexually abused me. After that, they transferred me to Checkpoint 300 at the entrance to Bethlehem town. Then they transferred me in a private vehicle to the Russian Compound. They took photos of me and medically examined me because I suffered from an injury to the shoulder as a result of the beating. I wasinterrogated for stone throwing and Molotov cocktail. During the interrogation, they beat me and they hit my head against the wall. I asked the interrogator to call my family but he refused. The interrogation lasted continuously from my arrival at the Russian compound to midnight. Two interrogators interrogated me and they were speaking Arabic After the interrogation finished they asked me to sign papers. I did not understand what I was signing Name Withheld, Al Dheisha Refugee Camp, Bethlehem, Al Moscibiyya Interrogation Centre 14 March 2007.
Israeli Military Courts, Laws and Procedure
In the Israeli Military Courts, the main procedural rules and laws that apply to the prosecution of Palestinian children charged with alleged crimes against the security of the State of Israel, are contained in (1) Military Order 378, (2) Military Order 132 (3) the Israeli Criminal Procedure Law and (4) the Israeli Evidence Law (these latter two Laws also apply in the domestic Israeli criminal jurisdiction).
Military Order 378 , the Order Concerning Security Directives and Military Order 132, the Order Pertaining to Juvenile Offenders are two of more than 2500 Military Orders issued since Israel?s occupation of the Palestinian Territories in 1967, by the Israeli Army, to administer the occupation of the Palestinian territories. Together, these Military Orders form Israel?s military system of governance over the Palestinian people in the occupied territories.
Military Order 378 establishes the Israeli Military Court, defines the Court?s jurisdiction and the offences that are to be prosecuted within it and outlines the procedure to be conducted when an accused is brought before the Court.
Prosecutions in the Israeli Military Court, as in the regular Israeli criminal courts, are conducted within an adversarial system of justice. As such, the presumption of innocence of an accused and the prosecution?s burden of proof should theoretically underlie the legal procedure.
I was arrested at Huwwara checkpoint by the Israeli army. I was transferred to Ariel settlement where they beat me while I was blindfolded on my face. Afterwards I was transferred to Salem interrogation compound. I was beaten and position abused for 10 hours in the cold weather. During the interrogation, the interrogator asked me to sign papers in the Hebrew language. When I refused, he hit my head against the desk.Rashed Radwa , aged 16 years, Azoun Village near Qalqilya, Hasharon Prison April 2007
Under Military Order 378, when a Palestinian child or adult accused of an offence pleads not guilty in the military court, the following procedure is followed by the court in proceeding to and conducting a trial:
Section 29: If the defendant pleads not guilty to the indictment, or the Court refuses to accept his confession to a charge, the Court will hear the military prosecutor and his witnesses, in addition to any other testimony it deems appropriate.
Section 30: If the Court sees, at the conclusion of the prosecution?s case, that the evidentiary material does not warrant the defendant responding to a certain charge, the court will acquit the defendant of the said charge.
Section 31 (a) If the Court perceives at the conclusion of the prosecution case that the evidence presented against the defendant is prima facie sufficient to obligate him to respond to the charge, the Court will explain that he may testify as a witness for the defence?..and will ask him if he wishes to present testimony or call a witness in order to defend himself. The Court will hear the testimony of the defendant?and the testimonies of all the witnesses he will call.
The Criminal Standard of Proof in the Israeli Military Courts
According to section 30 and 31(a), the burden of proof in the Israeli Military Courts according to Military Order 378, is to establish a prima facie case. A prima facie case is a standard that falls short of the ordinary standard of proof of beyond a reasonable doubt, the standard of proof that applies to the prosecution of an accused in the regular Israeli criminal jurisdiction, as well as in other adversarial criminal justice systems around the word, including the United Kingdom, the United States, Canada and Australia.
The criminal standard of proof of beyond a reasonable doubt is a much higher standard and a more difficult standard to establish. The reason that the standard of proof of beyond a reasonable doubt is applied in most adversarial criminal justice systems is because an accused faces harsh penalties and usually imprisonment.
In these aforementioned criminal jurisdictions, the prima facie standard is usually only applied in bail determination hearings and preliminary procedural hearings prior to an accused being brought to trial. Where the prosecution must only present a prima facie case, the evidence presented to the Court need only be sufficient to prove the alleged facts against an accused. If the evidence is sufficient, then a jury or a judge would be entitled or justified to find either in favour or against the accused in a criminal trial. Before the verdict, the burden shifts to the accused who must, through evidence, rebut the prosecution?s case. If the prosecution?s case is not rebutted, a judge or a jury are entitled to find the accused guilty of the offence.
Where a prosecutor must meet the standard of proof of beyond a reasonable doubt, the prosecutor must convince a judge or a jury of every element of the crime beyond a reasonable doubt, and the accused is not required to establish his or her innocence.
In the Israeli Military Courts, lowering of the standard of evidentiary proof to prima facie case at the stage of the actual trial, undermines an accused?s presumption of innocence and places a heavier burden on the accused and defence counsel. As part of a larger political policy on the part of the State of Israel, this is also enhanced by a lengthy and violent arrest and interrogation phase that a Palestinian child or adult accused has undergone prior to appearing in court.
I was arrested on 24 May 2007 near Al Aroub College by Israeli soldiers. During the arrest, the soldiers beat me by boxing me with their hands. They beat me around my waist and shoulders and afterwards they put me in their jeep. During the transfer, they blindfolded and handcuffed me. They slapped me. The transfer lasted for half an hour until we reached Khirbit Sor and there I was beaten by their hands. One of the soldiers beat me in the middle of my back and he continuously asked me questions and when I didn?t respond, he would beat me with his hands on my face. He continued to ask me questions for half an hour.
I was then transferred to Atzion Detention Centre where I was interrogated for one hour and the interrogator showed me photographs of someone throwing stones and paint.
At about sunset, they transferred me to a military place, I don?t know where or the name of this place. I spent the whole night outside. Every soldier that passed by beat me and I did not sleep at all.
I was interrogated in the Hebrew language and there was a soldier who translated for me. I signed papers but I don?t know the content of the papers. They informed me that it contained my confession of stone throwing and the next day, they transferred me to Ofer Prison.
We were 24 prisoners, children and adult in the tent. Muss?ab Abed Al Basset Abdullah Abu Rayah, 15 years of age, Al Aroub Camp, Ofer Prison 12 June 2007
Israeli Laws and Policy in the Interrogation Process
Israeli Police, Israeli Army and Israeli Secret Service personnel conduct the arrest and interrogation of Palestinian children on a daily basis. The arrests and subsequent interrogations in detention centres operate in isolation of any transparent rules, procedure or laws giving Israeli military personnel wide powers during this phase.
Certain provisions contained in Military Order 378 complement and legitimize these wide powers rather than provide checks and balances to the arrest and interrogation process.
According to Section 78 of Military Order 378, a Palestinian child can be detained by an ordinary, low ranking Israeli soldier or police officer for 96 hours. Afterwards, a child can be held for interrogation for 8 days prior to be taken to Court through a formal detention order made by a higher ranking military official. A judge of the military court has the power to extend this period of detention for interrogation for a period of up to 90 days. A judge of the military court of appeals has the power to extend this 90 day period to a further period of up to 3 months.
Military Order 378 also provides for the means to isolate an accused from the outside world, including from a lawyer, during the interrogation phase, by giving Israeli police officers, senior Israeli Army and Secret Service staff and Military Court Judges, broad and arbitrary discretion to limit an accused?s right to communicate with a lawyer during the interrogation process:-
Section 78 (a) A soldier may stop, with no detention order, any person violating the directives of the Order, or if there is room to suspect that he violated this order.
Section78 (e1)(4) The detainee shall not meet with his attorney during the two days from the day of his detention.
Section 78b (d) If a detainee is in interrogation proceedings or other actions related to the investigation, and a police inspector reasons that a break in the interrogation proceedings or actions is liable to thwart the investigation or disrupt the detention of additional suspects in the same manner,, it may order?that a meeting of the detainee with an attorney be delayed for a number of hours..?
Section 78c ( c ) (1)The supervisor of interrogation may, in a written decision, order not to permit a meeting of the detainee with a lawyer for a period or periods which together will be no longer than 15 days from the date of detention, if he reasons this is necessary for reasons of security of the region or that the interrogation process necessitates it.?
Section 78c ( c ) (2) A permitting authority ( a chief superindent or higher of the Israeli police service, the Head of Interrogations Division of the General Security Services, or lieutenant colonel or higher in the IDF) may, in a written decision, order not to allow a meeting of the detainee with a lawyer for an additional period or additional periods together will be no longer than 15 days, if it is convinced that this is necessary for reasons of the security of the region or for the interrogation process.?
Section 78d(2) A jurist judge may authorise?..that a detainee will not meet with an attorney, if he is convinced that for reasons of security of the region or interrogation needs necessitates it?Section 78d(3)???.the authorization will be will for a period or periods which together will be no longer than 30 days??Section 78d(4) The president of the court or the duty president may extend the period for an additional period or periods which together will be no longer than 30 days, if the IDF commander of the region confirmed in writing that special reasons of the security of the region necessitate this.
A detained person shall be entitled to have the assistance of a legal counsel. He shall be informed of his right by the competent authority promptly after arrest and shall be provided with reasonable facilities for exercising it. UN Principles on Detention, Article 17
Governments shall further ensure that all persons arrested or detained, with or without criminal charge, shall have prompt access to a lawyer, and in any case not later than 48 hours from the time of arrest or detention. UN Principles on Lawyers, Article 7
A central aspect of the interrogation phase, is the use of particular forms of torture and ill treatment. Statements made by Palestinian children held in Israeli prisons, to Defence for Children International within this article, illustrate the varying types of methods used.
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. Universal Declaration of Human Rights, Article 5.
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. Covenant on Civil and Political Rights, Article 7.
Because the arrest and interrogation phase is conducted by Israeli military personnel, the actual methods of arrest and the interrogation process itself, cannot be challenged in the Military Court. Limitations on arrest and detention powers contained in the Israeli Arrest and Detention Law do not apply to the Israeli Military Courts, as it does for domestic Israeli Police and security officials in the regular Israeli criminal courts.
Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.
- No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.
- An order from a superior officer or a public authority may not be invoked as a justification of torture. United Nations Convention Against Torture, Article 2
In this context, it is important to note that provisions in Military Order 378 that should mirror the Israeli Arrest and Detention Law do not exist. This serious and deliberate omission means that Judges in the Military Court do not ever have to consider whether or not the accused?s rights at the time of arrest and interrogation were given effect and preserved.
All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person. Article 1, United Nations Covenant on Civil and Political Rights.
I was arrested at home on 9/2/06 The Israeli army searched my home and beat me and humiliated me. They transferred me to Salem. During the trip I was handcuffed and my legs were tied. I was blindfolded as well. In the IC, I was beaten and position abused outdoors under the rain. I spent 40 days in the interrogation centre. Assem Lutfi Abdel Lattif Khalil, aged 16 years, Attil Village near Tulkarm, Hasharon Prison 7 March 2007
I was arrested by the Israeli Army and transferred to Huwwara where I stayed for two days and then to Petah Tikva Interrogation Centre. During interrogation they beat me, and the beating concentrated on my sexual parts. Sameh Said Moussa Safwan, Aged 15 years, Askar Camp in Nablus, Hasharon Prison 7 March 2007
The overall effect of this is the erosion and virtual depletion of a Palestinian accused?s rights during the arrest and interrogation phase. A Palestinian child under arrest and during interrogation does not have the right to silence; the right to immediate and liberal access to a lawyer; the right to be advised of his or her rights while under arrest and interrogation; the right not to be assaulted, abused or tortured; the right to have contact with a family member or support person and; the right to be presumed innocent.
Ultimately, this makes it easier for an interrogator to illicit a confession from a child and also creates a judicial system that does not need to question the reliability and credibility of a confession and how it was obtained.
While the right to object to a confession does exist in an Israeli Military Court under the Israeli Criminal Procedure and Evidence Laws, the burden of raising the objection and establishing grounds that a confession should not be read as evidence, rests with an accused and his counsel. The basis that must be established by the accused is that the confession is unreliable because the accused lost a level of consciousness or reached a certain irrational state of mind due to torture and ill treatment when the confession was made.
For Palestinian children who naturally confess due to being threatened, beaten, and abused over a number of hours and days, this is impossible to establish. Furthermore, by virtue of the heavy reliance on confessional evidence, and the political context of the court, judges have a preference for the evidence of interrogators when challenges to a confession are made.
I was arrested on 15 October 2006 by the Israeli ArmyThey searched me and threatened to beat me.After that I was transferred with security service car to Atzion Detention Centre and the trip took around half an hour. When I reached the Detention Centre, a doctor examined me and the interrogation started with me and lasted for 12 continuous hours.During the interrogation they threatened to beat me if I did not confess. They cursed me and my family members.
They sexually abused me by touching certain parts of my body. The lawyer was prevented from visiting me during the interrogation period and I still suffered from psychological impact as a result of the interrogation and I was not transferred to the hospital to be treated. I was sentenced for 10 months.Name Withheld, aged 16 years, Surif Village near Hebron, Hasharon Prison 12 April 2007.
Confessions comprise the bulk of evidence presented in cases in the Israeli military courts and are relied upon heavily by prosecutors and judges throughout the entire course of the prosecution of an accused, from the bail hearing, to the formal indictment to the trial and the sentence.
In essence, by the time a Palestinian child is brought before the Israeli military court, the presumption of innocence, which did not apply during the interrogation phase, takes on a superficial meaning within the day to day sittings of the court. The confession, rather than any particular type of criminal justice, becomes the focus of the court proceedings and directs the outcome. Additionally, the confession, together with a lower criminal standard of proof, empowers the prosecution in the Israeli military court shifting the burden to the accused to choose between accepting the confession, or to contest it.
For Palestinian children, the reality of choosing to contest a confession is to accept many more months in imprison awaiting for a trial that will in all probability result in a finding of guilt. Eventually, a Palestinian child who faces the Israeli military court surrenders to the prospect of a lengthy term of imprisonment, and agrees to accept the contents of the confession, innocent or not.
I was arrested by Israeli soldiers at Kapsa Gate. They arrested two others with me. They handcuffed us and they asked us to sit on the floor.
After a short period, the soldiers transferred us to the military checkpoint in Attour and during transferring us one of the soldiers hit me with his wireless CB radio on my head.
I was interrogated and the interrogator hit my head against the desk. The interrogation lasted for two hours. After that I and the others were transferred to Maale Adumim Detention Centre and we stayed there until 5am. After that, we were transferred to Ofer Prison and now we are 21 prisoners, adults and children, in the tent. Ibrahim Mashhour Abdallah Far?oun, 16 years old., El Eziriyah Village near Jerusalem, Ofer Prison 12 June 2007.