Deenah Tsai- The Criminal Liability of Judges and Prosecutors in Israel’s Military Courts

Israel’s military court system serves as one of the central systems enforcing the occupation of Palestinian territory and subjugating Palestinians. Palestinians are subjected to a dual legal system under which they are prosecuted based on military orders and tried before military courts where judges and prosecutors are drawn from the IDF. The structural position where legal and military objectives are intertwined compromises the independence and impartiality of judges and prosecutors. Moreover, judges actively facilitate abusive interrogation and detention practices, rather than serving as checks against them. By processing these cases through legal channels, judges provide legitimacy to practices that are clear violations of International Law, despite knowledge of the widespread and systematic torture and ill-treatment Palestinian detainees face in Israeli prisons and detention centres. Israel’s High Court of Justice, which functions as the ultimate body over both administrative detention and military court appeals, has the greatest responsibility in this regard. Despite extensive research on the conditions of detainees and the Israeli military court system, no research has been conducted regarding available accountability mechanisms for the actors in this system. Our research finds that there are several legal bases in the Rome Statute of the ICC, based on which judges and prosecutors may incur individual criminal liability based on aiding and abetting in the commission of genocide, crimes against humanity, or war crimes, even though to date no individual has been charged based on aiding and abetting under Article 25(3)(c) for the crimes of genocide, crimes against humanity, or war crimes. Finally, our research addresses third-state responsibilities deriving from the potential individual criminal liability of judges and prosecutors.