Supreme Court review of military courts in Israel

An article by Yotam Berger, From Uniforms to Robes: Unveiling Judicial Review Practices of the Supreme Court of Israel in Cases Adjudicated in Military Tribunals, in the Emory International Law Review, describes the work of the Supreme Court of Israel in appeals from the Court-Martial of Appeal (CMA) and the Occupied Territories Court of Appeal (OTCA) from a comparative perspective. Concerning CMA cases (footnotes omitted):

If issuing a cert could be viewed as an intervention (since it allows the parties to relitigate the case as if it was an appeal) then the Supreme Court was far keener to intervene in CMA cases compared to the OTCA cases it reviewed over the examined period. The Court granted a cert in nine out of sixty requests. Over the same period of time, the Supreme Court held eleven hearings for cases that were previously litigated in the CMA and were granted a cert – nine in which a cert was issued during the examined timeframe, and two others in which a cert was granted before January 1, 2002 (since a few months could pass from the day a cert has been issued to the day the hearing was held). Of these eleven cases, the Supreme Court eventually reversed a decision made by the CMA in six cases – three of which seemingly without the preapproval of the army. 

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Unlike HCJ [High Court of Justice] petitions, cert requests are not assigned to a panel, but to a single justice. That single justice has the authority to decide either to dismiss the request without a response from the prosecution or to order the prosecution to file a response. If a response has been filed, said single justice can either dismiss the request or issue a cert. Usually, any associate justice is authorized to issue a cert. Certs following CM litigation, however, are unique in the sense that they could be issued exclusively by the Chief Justice or their deputy. Indeed, all relevant cert requests over the examined years were decided by chief justices, except for three that were decided by deputy chief justices, and one that was decided by an associate justice, possibly by mistake.

Most cert requests (thirty-six out of sixty) were dismissed without even ordering the state to respond. However, if the state was ordered to file a written response, it became somewhat likely that a writ will eventually be issued. Justices ordered a response in fifteen cases and issued nine certs (sixty percent).

Topics of the cases that were granted certs vary. The nine cases in which a cert has been issued include four drug abuse cases, one rape, and four national security cases (including duty desertion, refusal to join the army, and an attempt to sell military-owned weapons.)

After a cert has been granted, the case is assigned to a panel of three justices. During the examined period, I was able to find eleven such appeals: nine following writs that have been issued between 2002 – 2021, and two additional cases in which the Court issued a writ earlier. Figure 7 [omitted here] shows that of these eleven cases, the Supreme Court dismissed five following a hearing, eventually upholding the decision made by the CMA. Three of the cases led the Court to reverse the decision made by the CMA with the military’s preapproval. In three other cases, the Court ruled in favor of the defendant and reversed previous decisions, despite the military’s position.

Two of the three cases in which the army preapproved of the intervention were national security or war related. The first case was that of a French youngster with an Israeli citizenship who refused to join the army. In a very brief decision, the Supreme Court noted that the IDF agreed eventually, following the issue of a cert, that the defendant is not obligated to serve, and he was therefore acquitted. The second case is that of Jonathan Ben-Artzi, a left-wing activist who refused to join the army due to his political views and was therefore incarcerated. He was eventually released from detention, following the military’s approval. The third case is a drug abuse case, in which the military agreed to reduce the punishment to a mere fine.

As to the three cases in which the Supreme Court changed the decision made by the CMA despite the military’s contradicting opinion: these are three rather lengthy decisions, in which the Supreme Court dived deep into specific precedential legal dilemmas.

Two of these cases were drug abuse cases, in which the unique legal question had nothing to do with the military setting or national security. The fact that the defendants were soldiers was hardly relevant. The first case involved a soldier that consumed some chemical substance that was not technically listed as an illegal drug at the time of the consumption (but was later added to the Prohibited Substance Ordinance). The Supreme Court eventually acquitted the defendant. In the second case, a unique question of evidence law emerged. The Supreme Court analyzed it and ultimately acquitted the defendant, after concluding that the evidence against him was not sufficient.

The third case was that of a deserter, and the question there was accordingly directly linked to the interpretation of military law. The defendant tried to avoid his legal obligation to serve and claimed he could not be convicted for desertion since he was never properly registered as a soldier to begin with. The Supreme Court partially agreed and ordered the fixture of some defects in his enlistment procedure.

As a sidenote, it is worth mentioning that over the examined period, the Supreme Court decided another case that was originally litigated in the CMA – Yissascharov, that was mentioned earlier. It is a foundational case in Israeli criminal procedure, that reframed the Israeli evidentiary exclusion rule. The procedural history of this particular case is uniquely complex, and it resulted in the extreme situation in which the CMA itself granted a cert upon its’ own decision, urging the Supreme Court to decide it. The case was first heard at the Supreme Court in June 1999 - before the examined period - but due to its’ extreme complexity and importance was only decided years later - in May 2006. Due to the combination of these unique characteristics of this particular case, it was not included in the database, as it was litigated before the examined period of time; was not the result of a cert request (and accordingly classified as a regular appeal and potentially reviewed with greater scrutiny); and was litigated at an extremely high profile, with various powerful figures and organizations submitting amicus briefs. However, in a way, this case too is an example of a situation in which the Supreme Court intervened in a case pertaining to a drug offense that was committed in the military setting.