The First Twenty Years

During the Six-Day War in June 1967, Israel occupied the West Bank, the Gaza Strip, the Golan Heights, and the Sinai Peninsula. The West Bank and the Gaza Strip were densely populated by Palestinians. The occupations were followed by the Israeli military declaring a military government over the occupied territories, issuing military orders equivalent to statutory law, and establishing military courts (Shamgar Reference Shamgar and Shamgar1982a; Gazit Reference Gazit1985). Formally, the Israeli military complied with the international law of occupation, which requires keeping the local laws in force and not applying the laws of the occupying power; therefore, military orders were applied alongside local Jordanian law.Footnote ⁹ Israeli law was not applied as a whole, but gradually parts of it were applied, through a patchwork of military orders, to Israeli settlers and settlements (Rubinstein Reference Rubinstein1988, 1989; Benvenisti Reference Benvenisti1990). Military courts were authorized by the principal military order, the Security Provisions Order (SPO), and used to prosecute Palestinian civilians for violations of the military law (Hadar Reference Hadar and Shamgar1982). The military courts have undergone changes in their scope over the years and have been abolished in areas from which Israel withdrew or annexed. In the West Bank, even today, they still process thousands of cases each year (Hajjar Reference Hajjar2005; Weill Reference Weill2007; Viterbo Reference Viterbo, Ben-Naftali, Sfard and Viterbo2018a).

The Israeli military currently operates two types of courts: courts martial for soldiers and service members, and military courts for civilians in the OPT. Military judges can preside in only one of these courts at any given time, although over the course of their careers they can transfer from one to the other. They can also shift to other work, such as to prosecutorial or advisory roles (Aviram Reference Aviram2008a, 282). Military judges do not enjoy security of tenure equivalent to that in the civilian system; they are subject to the military hierarchy for promotion and placement and can be transferred to other positions (Mudrik Reference Mudrik1990; Hajjar Reference Hajjar2005), although their appointment and disqualification process has become more restrictive (Lekach Reference Lekach, Bendor, Ghanayem and Saban2017, 646–47).

Military judges in the OPT courts are all military officers, either in regular or reserve service.Footnote ¹⁰ Until 2001, legally qualified judges sat as single judges (for relatively minor offenses) or as chairs of three-judge panels, while the other two panel members were officers without legal training. Starting in 2001, only legally qualified judges were appointed in all cases (Benichou Reference Benichou2005). Legally qualified judges are Israeli-trained lawyers admitted to the Israeli Bar Association, after obtaining law degrees and completing internships; the same applies with military prosecutors.Footnote ¹¹ Defense in military courts is provided by Palestinian lawyers and Israeli lawyers (Bisharat Reference Bisharat1995; Hajjar Reference Hajjar2005; Ben-Natan Reference Ben-Natan2014; Ziv Reference Ziv2018).

Like many other military justice systems, the Israeli military system went through “civilianization”: adopting characteristics of the civilian justice system (Sherman Reference Sherman1970; Mudrik Reference Mudrik1990; Benichou Reference Benichou2005; Caforio Reference Caforio and Caforio2006; Groves and Duxbury Reference Groves, Duxbury, Duxbury and Groves2016). The principal site of civilianization in Israel was the courts martial, whose work is perceived as the core activity of the military justice system (Aviram Reference Aviram2008a). This process began with the 1955 Military Justice Law (MJL) and continued with additional reforms introducing an Appeals Court Martial, a mixed system of legally and non–legally qualified judges, a mixed civilian–military appointment committee for military judges, and an appeal from the Appeals Court Martial to the civilian Supreme Court (Mudrik Reference Mudrik1990; Shamgar, Inbar, and Finkelstein Reference Shamgar, Inbar and Finkelstein2000).Footnote ¹² Military lawyers employed additional professionalization strategies: they established the IDF School of Military Law, established the IDF Law Review, and initiated the participation of military judges in the civilian judges’ trainings. Two elements—the professional qualification of actors and the hierarchical structure of appellate review—were at the core of civilianization. Importantly, none of these changes directly concerned due process rights of defendants-soldiers, and they were not proclaimed as a human rights project; the focus was on enhancing independence and professionalism.

The establishment of the OPT military courts following the occupations of 1967 was a watershed moment leading to the appointment of large numbers of professional judges. The SPO, like the MJL, required one professional judge on each panel. Several courts were established and processed large numbers of proceedings; civilian lawyers were enlisted for reserve service and appointed as military judges, filling the military courts “by [the] hundreds” (Hadar Reference Hadar and Shamgar1982). However, the OPT military courts did not follow the same standards of civilianization as the courts martial. The SPO followed the classic model of military justice (Sherman Reference Sherman1970; Liivoja Reference Liivoja, Markus and Hörnle2014), characterized by assigning a central role to military commanders, summary proceedings, minimal procedural guarantees, and harsh sentences; there were no appeals over sentences and judges were appointed by a military commander.Footnote ¹³ Organizationally, the new courts were not part of the courts martial corps but subject to the military prosecution, thus enjoying less independence. The prestige of the OPT military courts, compared to the courts martial, was low within the legal profession, as a former Military Attorney General (MAG) said:

Even among military judges, then, there are additional stratifications, and judges of the OPT military courts (prosecuting Palestinian civilians) are considered inferior to judges of the courts martial (prosecuting soldiers).

Notwithstanding this internal stratification, the military courts system has always featured prominently in Israel’s legitimation efforts of the occupation. The rule of law and an independent legal system are central to the legitimation of state power by placing limitations like predetermined rules and judicial oversight on the arbitrary exercise of power; this is true even in nondemocratic contexts (Weber Reference Weber1978; Shamir Reference Shamir1990; Bisharat Reference Bisharat1994; Ron Reference Ron2000). New institutionalism has shown that institutions and organizations go beyond efficiency and seek social legitimacy (DiMaggio and Powell Reference DiMaggio and Powell1991; Ron Reference Ron2000), which can be premised on different factors. These vary according to the type of institution and the audience within which legitimacy is sought (for legal institutions, these values could be independence, expertise, representativeness, or adherence to human rights).

Israeli state actors have been deploying legal means in an effort to legitimize the Israeli occupation of the Palestinian territories, a topic that has been thoroughly discussed in the sociolegal literature (Shamir Reference Shamir1990; Bisharat Reference Bisharat1994; Kretzmer Reference Kretzmer2002; Hajjar Reference Hajjar2005, 49–75). These legitimacy efforts have been addressed primarily to the international community and Israeli society, and to a much lesser extent, its Palestinians subjects (Shamir Reference Shamir1990; Bisharat Reference Bisharat1994, Reference Bisharat1995; Hajjar Reference Hajjar1997). More recent literature has highlighted the significance of self-legitimation, maintaining a positive self-image among state actors themselves and segments of society (Ron Reference Ron2000; Cohen Reference Cohen2001; Ben-Natan Reference Ben-Natan2014; McEvoy and Schwartz Reference McEvoy and Schwartz2015; Dudai Reference Dudai2017b). The professional project of military judges after 2000 and the older state legitimizing project serve external and internal legitimation efforts, also addressing judges’ professional peers in the civilian legal system.

The Israeli argument has been that the territories are administered according to the rule of law using two principal legal mechanisms: the establishment of the military legal system in the OPT, ostensibly administering justice in accordance with both internal and international rule of law; and the extension of judicial review of the Israeli High Court of Justice (HCJ) over the actions of the military in the OPT (Pach Reference Pach1977; Shamgar Reference Shamgar1982b ; Shamir Reference Shamir1990; Bisharat Reference Bisharat1994, Reference Bisharat1995; Shoham Reference Shoham1996; Kretzmer Reference Kretzmer2002; Hajjar Reference Hajjar2005; Gross Reference Gross2007). For example, in 1977, the Israel Yearbook of Human Rights, an annual publication in English, published an article by Arie Pach, a former prosecutor in the OPT military courts, titled “Human Rights in West Bank Military Courts” and a collection of eight decisions of the military courts in the “Administered Territories,” all translated into English. Pach’s article closes with the following optimistic stance:

The other pillar of legitimation was the HCJ (Dotan Reference Dotan1999; Jabareen Reference Jabareen2010). Israeli officials and military lawyers argue in national and international fora that the judicial review of its independent HCJ guarantees its adherence to international law, human rights, and rule-of-law principles (Shamgar Reference Shamgar1982b; Shoham Reference Shoham1996). For example, Meir Shamgar, the MAG of the 1967 war who eventually became the chief justice of the Supreme Court, writes in his 2015 autobiography:

Crisis: The First Intifada and the Rise of the Internal Human Rights Discourse

In the late 1980s and 1990s, two processes occurred simultaneously: a rise in the prestige of the Israeli judiciary and its moral authority, and the outbreak of the first Intifada in the OPT, which caused a legitimacy crisis of the occupation project and its military legal system. Military judges were at the intersection of these two processes, which bifurcated the legitimacy of the state and the military from that of the legal profession. Their civilian judicial counterparts were enjoying increased professional prestige, associated with judicial protection of human rights (Rosen-Zvi Reference Rosen-Zvi2001; Dotan Reference Dotan2002), while they were facing a legitimacy crisis over alleged human rights violations (Strashnov Reference Strashnov1994; Military Court of Appeals 2001).

The military courts took a central role in the suppression of the intifada, processing thousands of summary trials of protestors and stone throwers, who had no recourse to any appeal. The courts faced harsh criticism from local and international political and human rights bodies and from the press, which the MAG Amnon Strashnov later described as “crossfire” (Amit-Kohn and Yahav Reference Amit-Kohn and Yahav1993; Strashnov Reference Strashnov1994, 54–55). The intifada also created an internal legitimacy crisis within the military, facing conscientious objection to military service in the OPT (Aviram Reference Aviram2008b).

This crisis was a catalyst to which the military courts responded with “civilianization” of military law and procedures, adopting civilian standards of professionalism and independence. Over the next thirty years, the military legal system introduced gradual reforms through amendments to the SPO (Benichou Reference Benichou2005, 299–306). This slow civilianization process included an article stating the independence of military judges;Footnote ¹⁵ the establishment of a Military Court of Appeals (MCA);Footnote ¹⁶ the abolition of review of sentences by the military commander;Footnote ¹⁷ exclusive appointment of legally qualified judges and establishment of a mixed military–civilian appointment committee for military judges;Footnote ¹⁸ and the separation of the military courts from the military prosecution, forming an independent unit (Benichou Reference Benichou2005, 299–306; Cavanaugh Reference Cavanaugh2007, 207). Civilianization tipped the balance of the military justice system toward the legal aspects and away from the military aspects, but still maintained significantly lower standards of procedural rights for defendants (Ben-Natan Reference Ben-Natan2014).

The growing criticism over the military justice system coincided with a shift in the Israeli civilian system toward liberalization and a growing human rights discourse during the 1990s. In 1991 Israel joined five United Nations human rights treaties (Ben-Naftali and Shany Reference Ben-Naftali and Shany2003, 25); and in 1992 the Knesset (Israeli legislature) enacted two Basic Laws (which are considered of constitutional status) concerning human rights, Basic Law: Human Dignity and Liberty, and Basic Law: Freedom of Occupation. The Oslo Accords of 1993 between the Israeli Government and the Palestine Liberation Organization (PLO) promised a resolution of the conflict and brought further liberalization (Shafir and Peled Reference Shafir and Peled2002) and a sharp decrease in the caseload of the military courts (Military Court of Appeals 2001).

The basic laws marked the entrenchment of constitutional human rights and established the constitutional supremacy of Basic Laws over ordinary statutes (Gross Reference Gross1998). These changes were widely referred to as the “constitutional revolution,” a term coined by Aharon Barak, chief justice of the Supreme Court, who was widely admired in the legal community and promoted the constitutional revolution in judicial activism as well as in academic publications (Barak Reference Barak1992). The constitutional human rights discourse was framed in national legal terms using the term and concept “human rights.” The duality of the concept of human rights as both national and international (Hajjar Reference Hajjar1997; Ben-Natan Reference Ben-Natan2017) served cause lawyers and NGOs in attacking the military legal system in the domestic and international arenas and served the state in responding to such attacks using the same token.

Constitutional human rights affected criminal law in Israel, with major amendments to the Penal Law and Criminal Procedure Law in 1995 and 1996. The Supreme Court ruled that Basic Law: Human Dignity and Liberty mandates an interpretation of criminal law that is more respective of individual rights (Karp Reference Karp1995).Footnote ¹⁹ Due process rights of the soldier-defendant were also transformed; for example, in Tzemach v. The Defense Minister (1999), the Supreme Court ordered shortening of detention periods of soldiers.Footnote ²⁰ These developments did not apply to the OPT and widened the gap between Israeli civilian law and the OPT military law (Ben-Natan Reference Ben-Natan2017; Shinar Reference Shinar2018).

The rise of the rights discourse has also been part of a professional project of the Israeli judiciary, which distinguished itself within the legal profession by disassociating its expertise from that of lawyers (Rosen-Zvi Reference Rosen-Zvi2001). The judiciary alchemized its professional authority into moral power by spreading the image of judges as cultural heroes and architects of social change through judicial activism (Barak Reference Barak1993; Rosen-Zvi Reference Rosen-Zvi2001, 821).Footnote ²¹ The Israeli judiciary indeed achieved formidable prestige and moral status, ranking first in the world in public trust. Judgeship was the most prestigious profession in Israel in the 1990s (Rosen-Zvi Reference Rosen-Zvi2001, 781; Dotan Reference Dotan2002). The unique claim for judicial professionalism was not based on formalism but on the moral values of liberal individual rights (Mautner Reference Mautner1993; Shamir Reference Shamir1994, 11; Rosen-Zvi Reference Rosen-Zvi2001, 826).

The military law in the West Bank followed these trends, and civilianization remains the primary explanation that military justice scholars and military judges offer for transformations in military law (Benichou Reference Benichou2005; Gordon and Shoresh Reference Gordon and Shoresh2005; Groves and Duxbury Reference Groves, Duxbury, Duxbury and Groves2016). It is undoubtedly an important process, following which military lawyers and judges are primarily legal professionals, and military courts are expected to be independent, professional, and provide civilian type procedures. I argue, though, that the transformation in the OPT military courts has gone well beyond civilianization, as the next section demonstrates.

Promoting Human Rights, Applying Israeli Law: Judicial Decisions

The growing reliance of the military courts on Israeli civilian law since 2000 has already been described in the literature. Authors from within the military have endorsed this trend as promoting human rights (Benichou Reference Benichou2005; Mishnayot 2014; Lekach Reference Lekach, Bendor, Ghanayem and Saban2017),Footnote ²³ while others (including myself) took a critical position (Viterbo Reference Viterbo and Freeman2012; Ronen Reference Ronen2013; Ben-Natan Reference Ben-Natan2014; Viterbo Reference Viterbo, Ben-Naftali, Sfard and Viterbo2018a). Critics pointed to the creation of indeterminacy in the law, the violation and abandonment of international standards, de facto annexation, violation of fair trial rights, and the exclusion of Palestinian lawyers from using Israeli law (which is not part of their legal education) to defend their clients.

Judges justify the reliance on Israeli law not by legal doctrine but by the will to apply progressive and unified principles of law, and it is used explicitly or implicitly as signifying greater protection of defendants’ rights. The Military Court of Appeals entrenched this reliance in binding precedent, and it was embraced by the three recent chief judges: Shaul Gordon, Aharon Mishnayot, and Nathanael Benichou. The similarity to Israeli law was further institutionalized in a number of amendments to the SPO, the principal one in 2015 incorporating significant segments of Israeli Penal Law.Footnote ²⁴ A recent study surveyed a database of 5,565 military courts decisions, searching for references to international law. It found such references in only 2 percent of the cases, and in all of these 104 cases “there are extensive references to Israeli civil law and Israeli courts case law, which do not directly apply in these [military] courts” (Ramati Reference Ramati2019, 12). The following section will highlight the features of mimetic convergence in the case law, which are different from civilianization: imitating discourse, strategy and style, and transplanting the content of Israeli law in addition to adopting the human rights discourse and judicial activism.

The decision of the MCA in Military Prosecutor v. Abu Snenah (2004) provides the most articulate manifestation of mimetic convergence.Footnote ²⁵ The three-judge panel in the first instance and on appeal (for a total of six judges) unanimously applied the 1995 Israeli amendment to the Penal Law to the OPT, overruling a conviction based on guilt by association. The acquittal on one charge had no effect on the defendant’s sentence since he was convicted on multiple other charges; it was made into a matter of principle. Justice Shaul Gordon, then the chief justice of the MCA, elaborated on the reliance on Israeli law:

Justice Gordon gives four reasons for a substantive “unbreakable affinity” between the military law in the OPT and Israeli civilian law: (1) personal: military legislators and judges are trained in Israeli law; (2) historical: many of the military orders are based on Israeli legislation and should be interpreted accordingly; (3) concurrent jurisdiction: the same events can be tried simultaneously in both systems, therefore:

The last reason is (4) the high and progressive standards of the Israeli legal system:

Gordon opens by stating that the military justice system is proper and complete, but still pursues nondiscrimination and progressiveness, which trump formal legal doctrine in an act of judicial activism. Inspired by the Israeli civilian legal system, the reliance on Israeli law is justified not by legal doctrine but by the will to promote human rights and apply progressive and unified principles of law (Benichou Reference Benichou2005; Lekach Reference Lekach, Bendor, Ghanayem and Saban2017), characterized by judges themselves as judicial activism.

One way in which military judges bypass formal legal doctrine is by adopting the principles of Israeli law when the statutes themselves do not apply. For example, in Military Prosecutor v. Abu Saleem (2000), the MCA referred to the new and narrower grounds for ordering detention in the 1996 Israeli law. The law was inapplicable to the OPT, but nevertheless judges proclaimed “to act according to the principles set forth by that law.”Footnote ²⁷

Military judges adopted many specific features and details of Israeli law through their case law. They applied provisions of the Criminal Procedure Law on disclosure of evidence materials to the defense,Footnote ²⁸ assumed a statute of limitation on offenses,Footnote ²⁹ adopted the de minimis defense,Footnote ³⁰ incorporated the Abuse of Process defense,Footnote ³¹ and adopted judicial review of property confiscation in criminal cases.Footnote ³²

Judges have also increasingly distinguished themselves from military legal advisors (the “legislature” of the military system), by calling on them to incorporate segments of Israeli law into military legislation. They have criticized differences between military and civilian law as a “bifurcation of laws” and argued for unification.Footnote ³³ In some cases, judges were successful: military legislation was changed accordingly. For example, in Military Prosecutor v. Dababseh (2006), which addressed the issue of compensating a defendant following acquittal, the court’s “call [to the] the legislature to regulate this issue, so that in appropriate cases the military courts will also be authorized to order compensation, in the spirit of the principles stipulated in article 80 to the [Israeli] Penal Law,” was answered with an amendment to the SPO.Footnote ³⁴ Other amendments based on judges’ recommendations include limiting the period of detention pending trial to two years (subject to extension by the MCA),Footnote ³⁵ and adopting a procedure for challenging privileged evidence.Footnote ³⁶ In other cases, such suggestions were not followed and judges expressed their frustration, for example in the Abu Saleem case:

At least in one case, military legislation overruled a decision of the MCA that granted a right of appeal over confiscation of property, stating that a confiscation shall not be subject to appeal nor to any further proceedings, demonstrating the potential conflict between the military command and an overly activist judiciary.Footnote ³⁷

In 2009, the issue of juvenile justice became the focus of attention. In 2008, the Israeli Youth Law (1971) underwent reform to conform it to the Convention on the Rights of the Child.Footnote ³⁸ Between 2009 and 2011, the SPO was amended several times, establishing a juvenile military court with some very limited juvenile justice mechanisms and changing the legal age of majority from sixteen to eighteen.Footnote ³⁹ However, the changes to the law were insignificant as compared with Israeli juvenile justice reform, and military judges went beyond statutory changes, referring to principles of the Israeli Youth Law (Viterbo Reference Viterbo, Ben-Naftali, Sfard and Viterbo2018d).Footnote ⁴⁰ In the Abu Rahmeh case, quoted at the opening of this article, the military court decided to release a fourteen-year-old on bail relying on the Youth Law, stating:

There are several features of this mimetic convergence, beyond civilianization: the stated goal is not professionalism or independence, but nondiscrimination and promoting human rights of Palestinian defendants; the image they reflect is of a single system that is bifurcated, and thus judges strive for unification. In doing so, they exercise judicial activism in order to overcome legal formalism (which forces separation and difference) and distinguish themselves from military legal advisors who produce that formalism. They adopt specific arrangements of Israeli criminal law, and not general features, while expressing their admiration of the Israeli system as progressive. This strategy aims for similarity to Israeli law in content and imitates the Israeli judiciary in strategies and style.

In 2009, this strategy of military judges has echoed through a controversy in domestic Israeli courts, reaching the Supreme Court. This controversy demonstrates the gamut of positions within the civilian legal system on the status of the military courts and their judges, as well as the possible contradiction between the state project and the professional project. Since the OPT military courts are the forum in which Palestinians are convicted for injuries to Israelis, their judgments were sought after as evidence in civilian cases in which victims sue damages for such acts.Footnote ⁴² Israeli evidence law allows the admission of criminal judgments by Israeli courts as evidence in civil cases, and rules out judgments by certain tribunals presided over by lay adjudicators. The question was whether the military courts meet the conditions for admissibility, and the professionalism of military judges played a major role in the discussion.

In the case of Avrahami Estate v. The Palestinian Authority (2009), civilian plaintiffs who sued the Palestinian Authority in the Jerusalem District Court made a motion to admit a convicting decision by a military court as evidence of a Palestinian individual’s criminal liability.Footnote ⁴³ Judge Moshe Drori, himself a veteran on the MAG unit and the author of a book about the military legislation in the OPT (Drori Reference Drori1975), decided to admit the evidence. Judge Drori analyzed the status and independence of OPT military courts’ judges, provided citations to their decisions, and counted the adoption of Israeli law as proof of their independence and professionalism. He wrote:

The judges’ project therefore is taking down acoustic walls between Israeli civilian courts and OPT military courts. Military judges’ admiration of civilian judges is occasionally answered by similar admiration on the civilian side in a cycle of self-congratulation. But this endorsement is far from unanimous; on appeal, the Supreme Court overruled the decision, stating that it was not necessary for the case at hand. In front of the Supreme Court, the attorney general argued that under Israeli law, the OPT military court is a “foreign court” and its judgments should not be admissible.Footnote ⁴⁵ This estrangement of the military courts by the attorney general reflects the effort on part of the civilian legal establishment to maintain the military courts as separate, external, and exceptional to the Israeli regime (Azoulay and Ophir Reference Azoulay and Ophir2012) and its ambiguity toward its shameful “brother” in the OPT (Viterbo Reference Viterbo, Ben-Naftali, Sfard and Viterbo2018c).Footnote ⁴⁶ The difference between Judge Drori’s embracing opinion and the excluding position of the attorney general is the space within which military judges struggle for recognition.

Self-Congratulation: Academic Articles

Military judges are increasingly writing and publishing articles about the military courts system. Publications by military lawyers are not new; articles sympathetic to the occupation legal system started very early on, primarily in English, in line with the state’s international legitimation project (Pach Reference Pach1977; Hadar Reference Hadar and Shamgar1982; Shamgar Reference Shamgar and Shamgar1982a; Shoham Reference Shoham1996). Several things are new, though, after 2000. First, publications are written by presiding military judges. Second, these publications are now in Hebrew, not in English.Footnote ⁴⁷ Third, the benchmark for evaluating the military courts system is no longer international law but Israeli civilian law. While in earlier periods publications in English directly addressed the legitimacy of the state for international audiences and focused on international law, articles in Hebrew are addressed to local audiences, discuss Israeli law, and focus on reconciling “tensions of empire” (Stoler and Cooper Reference Stoler and Cooper1997) between metropole and colony. These three factors indicate a significant shift to the internal professional project, promoting the professional prestige of judges, and addressing judges’ peers in the Israeli legal community.

These articles follow two patterns. The first is self-praise for the military courts, military judges’ progressiveness, and promotion of human rights and criminal justice reform for Palestinian defendants. The second takes the equivalence between the military courts system and the Israeli civilian justice system as its point of departure to then discuss general legal issues concerning both systems.

Nethanael Benichou, then vice chief justice of the MCA (and the current chief justice), published in 2005 an article exemplifying the first pattern, describing the ongoing convergence between military law and civilian law and characterizing it as civilianization, justified by the prolonged Israeli occupation and the continued military adjudication of civilians (Benichou Reference Benichou2005). This seminal article praises the process as progressive and promoting human rights through the judicial activism of military judges, counting five advantages: (1) improving the level of human rights guarantees; (2) improving the rule-of-law standards and restraining excessive punishment; (3) creating a military and civilian “unified legal discourse” to make it easier for “outsider” civilian actors (i.e., Israeli defense lawyers) to work within this system, and creating a more equal “balance of power” between defense and prosecution; (4) making the system more legible and readily subject to academic research and critique; (5) opening up more sources of inspiration for military judges. As disadvantages, Benichou lists the special security needs in the OPT, which one must bear in mind while applying Israeli law cautiously (424–28). Benichou justifies this judicial activism of military judges by arguing that military orders are scarce and the “military legislature” is passive (294, 304). However, the enormous scope of military orders and their frequent amendments make this justification hard to accept. This is rather a way to avoid any direct criticism of the state, for example, for the violations of human rights that the military law entails, which, ironically, judges proclaim they seek to remedy.

Aharon Mishnayot, shortly after retiring from his position as chief judge of the MCA, published a paper discussing the application of Israeli law in the OPT military courts and posted it to the Social Science Research Network (Mishnayot 2014). He optimizes a heroic argument structure by promoting a solution, but only after denying that there is a problem. With this argument, judges’ activism does not offer a long-needed remedy for structural injustice, but attests to their high moral commitment and benevolence. Unlike Benichou, Mishnayot directly counters criticism about the military courts system, going so far as to cite arguments that characterize it as apartheid. He then argues that while this characterization is not true, there is still an “unpleasant sentiment”:

Mishnayot heralds the activist approach of military judges who apply Israeli law to “close the gap” between the systems, as well as their professionalism when sitting on administrative committees. He then proposes to move one step forward and apply the entire Israeli criminal law to the OPT and establish an administrative military court to take administrative cases of Palestinians against military authorities. At an academic conference two years earlier, while still chief judge, Mishnayot presented a similar paper, which also included a suggestion for an Israeli legislative amendment that would admit decisions of the military courts as evidence in Israeli courts (Mishnayot 2012), an amendment that was eventually introduced. Aiming directly at the issue discussed in the Avrahami Estate case, this suggestion has absolutely no effect on Palestinian defendants in OPT military courts; its effect is only on the status of military court decisions in Israeli courts and the professional prestige of military judges, while making it easier for Israelis to sue Palestinians for damages.

The most recent addition to this line of scholarship is an article by Zvi Lekach, the current vice chief judge of the MCA, titled “Protection of Human Rights in the Military Courts While Combating Terrorism” (Lekach Reference Lekach, Bendor, Ghanayem and Saban2017). Lekach reviews military courts’ decisions between 2000 and 2010, continuing the self-congratulatory tradition:

Lekach is describing a prima facie paradox, ignoring any criticism, empirical data, or problems with the military law and courts. According to this paradox, in the midst of ruthless terrorist attacks, military judges, on their own initiative, are championing a human rights reform in Palestinian defendants’ rights. He arrives at the conclusion that military judges, himself included, are exceptionally independent, progressive, and relentless. This heroic position, as distinct from the pragmatic problem-solving orientation of legal transplantation, rests on three grounds: (1) there is no human rights problem to solve; (2) actions are altruistically motivated by the will to do good; and (3) judges overcome formal legal doctrinal limitations for that purpose.

The second pattern of articles treats the military and civilian legal systems as equivalent and offers insights from the military system to the civilian system. Zvi Lekach and Amir Dahan (the latter a former military judge and currently a civilian judge), published in 2010 an article arguing that the 99 percent conviction rate ascribed to the Israeli civilian legal system is false because the statistical method fails to capture differences in case results other than conviction and acquittal (Lekach and Dahan Reference Lekach and Dahan2010).Footnote ⁴⁹ They propose a statistical model that would remedy this problem with regard to civilian courts, demonstrating it with West Bank military courts. They argue:

In a second article, Lekach and Dahan propose a mathematical model for analyzing and managing judges’ workload to determine the optimal number of judges in a given court system. Again, they developed and tested the model only on the military courts in the West Bank, arguing that it is “theoretically valid for any judicial system” (Lekach and Dahan Reference Lekach and Dahan2011, 274). Beyond the model itself, then, the article implies that the professional work of judges in the military courts is comparable to any civilian judge’s work.Footnote ⁵⁰

Nethanael Benichou and Meir Vigiser (the latter a court martial judge formerly sitting in the West Bank military court) published an article discussing the use of secret evidence in administrative detention proceedings in the military courts (Benichou and Vigiser Reference Benichou and Vigiser2017). In line with the heroic argument structure, they congratulate the military courts system and judges for their impartial handling of such proceedings, and then propose the use of “special advocates” to remedy the problematic use of privileged evidence (i.e., evidence not disclosed to the defense), and thus strengthen procedural protections and counter criticism (for the criticism see Krebs Reference Krebs2012). Arguing that these proceedings are equivalent in the military courts and in Israeli civilian courts, they propose special advocates also be used in Israeli civilian courts.

The articles by military judges thus do several things: they self-praise their own promotion of human rights, they present the military legal system in the OPT as equivalent to the Israeli legal system, attesting to the professional qualifications of military judges in the OPT as comparable to those of civilian Israeli judges, and they build a heroic image of judicial activism. All of this supports both the state legitimization project and the professional project: the publications in Hebrew are directed at the Israeli legal community, refrain from any criticism, and praise the human rights record of the military courts. The appeal to an international audience is complemented by publications in English by the Israeli Ministry of Justice and the IDF spokesperson, who translate and share the congratulatory arguments (Ministry of Justice 2014). The publication of articles also builds a better portfolio for candidates seeking judicial office in the civilian system, an aspect that came up in multiple interviews with former military judges.

Tested in Combat: The Career Path from Military to Civilian Judges

Interviews with legal actors took an angle that was absent from judicial decisions and articles. The interviewees were not the same judges whose texts I analyze, but an earlier generation of retired judges and other legal actors. This generation provided their experience and impressions of the military in hindsight, but they also remained part of the civilian legal system in judicial and other capacities until quite recently. They, together with civilian legal actors who work adjacent to military judges and lawyers, proved valuable sources of insights that the active military judges might not have provided, highlighting that additional activities are meant to build professional prestige, judicial career paths, and self-images.

While the legal professionals I interviewed strongly endorsed the qualities of military judges, it seems that appointments to the civilian bench still require an effort by OPT military judges, as demonstrated in the judicial decisions and articles. This can be explained not only by their lower position in the internal stratification of the military justice system, but also the fact that since the beginning of the 1990s the Israeli legal profession has grown, and judicial appointments diversified (Kricheli-Katz, Rosen-Zvi, and Ziv Reference Kricheli-Katz, Rosen-Zvi and Ziv2018; Jasper Reference Jasper2018). Military judges should thus compete with many other segments of the highly legalized Israeli society for judicial appointments.

A repeated prevalent theme of the interviews was that military judges are considered excellent candidates for the civilian bench, and appointment to the bench is a desired career path:

From the point of view of military legal professionals, what made military judges exceptional candidates was their practical experience as judges and the similarity between the military and civilian systems. This made them experts not only in military law and judicial practice but also legal experts more generally. Several former military judges and MAGs made similar statements:

I noted above that one of the effects of civilianization was the exclusive appointment of legal professionals; this has increased the number of legally qualified military judges, brought legal reasoning and strategies into the military courts, and created a cadre of candidates for the civilian justice system. In terms of professional prestige, reforms in the appointment process seem to have had the greatest effect. The emulation of the civilian appointment process by the mixed civil-military committee enhanced the civilian and professional aspects of the military appointment. This process has continued with military judges joining the professional trainings offered to civilian judges, as described in other interviews:

Some interviewees expressed the opinion that when military judges aspire to be nominated as civilian judges, they start acting as such, even while still in the military. One former court martial judge, who was nominated as a civilian judge, told me:

This quote aptly articulates that within the legal community, judges that have only “been in the army” or “sentenced an Arab for 30 years” are not considered prestigious.Footnote ⁵⁹ If military judges wanted to be “OK” from a legal community perspective, they must cite precedents and scholarly books and most likely also need to produce scholarly articles.

Although there are obvious advantages to the civilian career horizon, not everyone sees it as a positive feature. A defense lawyer told me:

The interviews thus portray how military judges in the OPT gradually created collective mobility, establishing a career path from the military to the civilian bench for the least prestigious military judges. This might be an overstatement when compared to overall picture (Kricheli-Katz, Rosen-Zvi, and Ziv Reference Kricheli-Katz, Rosen-Zvi and Ziv2018; Jasper Reference Jasper2018), but indeed, many of the interviewees and several authors of articles, like Mishnayot and Dahan, were appointed as civilian judges; several still-working authors possibly have promising careers ahead. Interviewees point to the practical experience and civilianized appointment process, elaborated reasoning and professional expertise, and similarity to the civilian judges’ work that from their perspective make military judges excellent candidates for civilian judges. For the current generation of military judges who face increased competition, I argue that the similarity to Israeli law that is celebrated in their decisions and articles is part of their perceived professionalism; the mimicking and the heroic judicial human rights discourse create the image that they are already doing what they would be expected to do as civilian judges.