Thursday, January 23, 2014

Reform of the Israeli Military Justice System

From the Law Library of Congress's 2013 report, Military Justice System: Adjudication of Sexual Offenses: Israel:

Several changes have taken place in recent years that impacted the adjudication of sexual offenses within the IDF.  These include the way in which the determination of whether to pursue an adjudication is made and the forum for such a determination.  Unlike the adjudication of other violations of military law, the decision of whether to adjudicate sexual offenses in disciplinary proceedings can only be made by the MAG’s attorneys and not by commanders.

An additional development in adjudication of “lighter” sexual offenses in disciplinary proceedings is the requirement that presiding adjudication officers (AOs) be at least at the rank of Lieutenant Colonel and have either a legal education or special training in handling sexual harassment cases at the IDF School of Military Justice.  Israel’s Military Advocate General (MAG) maintains a database of AOs who are qualified to adjudicate sexual harassment cases.  The selection of the AO for such disciplinary proceedings from the database is made by the MAG and not by a commander.

Additional changes occurred based on the Supreme Court’s judicial review and the requirements established by the Court to follow rules that exist in criminal litigation.  Whereas decisions of the Appeals Court Martial (ACM) may be subjected to review by the Israeli Supreme Court upon special authorization only when there arises “[a] legal question [that presents an] important, difficult or novel [legal issue],”the MJL does not expressly provide for Supreme Court review of commanders’ decisions in disciplinary proceedings.  However, the Supreme Court has extended its jurisdiction to disciplinary decisions based on general principles of due process.  In a case involving IDF disciplinary adjudication, the Court voided a commander’s decision to convict and sentence a soldier based on procedural defects found in the disciplinary adjudication—defects that, according to the Court, deprived the soldier of his right to due process.

MK and Brig
Gen (Res) Miri Regev
The IDF has faced new challenges as a result of an increased focus on holding disciplinary adjudications to the same requirements that apply to criminal adjudications.  A private member bill by Knesset Member (KM) Miri Regev to reform the MJL and meet these challenges is now pending.  The bill proposes to establish a third mechanism for military adjudication by establishing military disciplinary courts in addition to the existing military courts and disciplinary proceedings.  The bill proposes that offenses under the Law for the Prevention of Sexual Harassment, 5758-1998, be adjudicated by the proposed military disciplinary courts. [Footnotes omitted.]

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