From Uniforms to Robes: Unveiling Judicial Review Practices of the Supreme Court of Israel in Cases Adjudicated in Military Tribunals

Authors

Yotam Berger

Abstract

While the Supreme Court of Israel has been, historically, perceived to be inclined to intervene in national security matters, this Article reveals a notable restraint in its review of criminal cases originating in military-operated tribunals. These tribunals include courts-martial (CMs), where soldiers are prosecuted, and occupied territory courts (OTCs), where Palestinians face charges. The study examines a database designed to encompass all available relevant cases decided by the Supreme Court of Israel from 2002 to 2021. It concludes that, despite its interventionist reputation, the Court exhibits a restricted, perhaps conservative stance toward criminal cases previously adjudicated by military judges. Notably, the data indicate a consistent reluctance by the Court to intervene in cases where Palestinian defendants were convicted by an OTC. Based on the data, the Article suggests that the Supreme Court may view itself as lacking the full democratic or professional accountability to scrutinize certain cases arising from military settings. To substantiate these findings, the study incorporates interviews with five senior stakeholders, including two former Supreme Court Justices, two defense attorneys, and a former Military Advocate General, whose insights contribute to a nuanced understanding of the Court’s approach to judicial review in military-origin criminal cases.

Recommended Citation

Yotam Berger, From Uniforms to Robes: Unveiling Judicial Review Practices of the Supreme Court of Israel in Cases Adjudicated in Military Tribunals, 39 Emory Int'l L. Rev. 169 (2024).
Available at: https://scholarlycommons.law.emory.edu/eilr/vol39/iss1/5