Confessed? There’s no way out now

Mu’taz Ja'far Hamad, a 25-year-old Palestinian from Qalandia Refugee Camp, was arrested on 5 May 2019 at Qalandia Checkpoint with a bag containing two Molotov cocktails he was planning to throw at Israeli security forces. Hamad had a last-minute change of heart and turned himself in. He was arrested and taken for interrogation, where he admitted to previously throwing Molotov cocktails and stones at security forces in the camp. Following his confession, the military prosecution indicted him for offenses committed “about a year or so prior to the arrest.” In January 2020, eight months after he was arrested, Hamad was convicted in a plea bargain of throwing a Molotov cocktail and sentenced to 20 months in prison – 14 for this offense and six as part of a previous suspended sentence. He was also given another suspended prison sentence and a 2,000 NIS (~596 USD) fine.

This much is routine in the West Bank: thousands of such cases go through the military court system every year. Yet this time, there was a surprising turn of events. When the file reached the Israel Prison Service Release Committee, attending lawyer Asmahan ‘Abd al-Hadi noticed that in May 2018, when the prisoner had allegedly committed the offense he was convicted of, he was already in prison – serving a sentence for a previous offense.

Adv. ‘Abd al-Hadi requested a retrial. In its response, the prosecution insisted the information need not overturn Hamad’s conviction and that he must continue serving his sentence. In a military court hearing on the matter on 15 October 2020, the prosecution agreed – on the judge’s recommendation – to have Hamad’s sentence commuted and for him to be released that day. The prosecution clarified it was only conceding the defense’s request due to “several flaws” in the process.

This unusual development offers a glimpse into the inner workings of Israel’s military prosecution. Above all, it shows how little the prosecution or the military judges care whether the defendants actually committed the actions for which they are indicted. To them, a Palestinian is guilty even if proven otherwise.

From arrest to conviction

Hamad was interrogated twice after being taken into custody. In the first interrogation, on 6 May 2019, he explained how he had got hold of the Molotov cocktails, had planned to throw them at the forces at the checkpoint and then changed his mind. When the interrogator asked, “How many times have you made Molotov cocktails before?” Hamad replied: “Once in the camp, there were riots, and that’s it.” When asked when this happened, Hamad replied: “A year ago, I don’t remember the date.” When asked at whom he had thrown the Molotov cocktails, he replied: “There were riots, and the army was inside [the camp].” Hamad said he did not remember how many Molotov cocktails he had thrown, maybe one or two, and that they had hit the ground.

Two days later, Hamad was interrogated again, this time specifically about the Molotov cocktail he had mentioned throwing in the previous session. He told the interrogator he thought it had occurred when soldiers entered the camp to arrest a resident, whom he named, while other residents, including himself, threw stones at them. The interrogator looked up the man Hamad named, and at the end of the interrogation noted in the file that this person had been arrested on 30 October 2017 – roughly 18 months before the interrogation.

Based on this information, the military prosecution indicted Hamad on 20 May 2019 for two offenses, “throwing an incendiary device” and “throwing objects at a person or property”, noting both were perpetrated “a year or so before his arrest.” Hamad was then remanded in custody pending the end of proceedings – as is the norm in military court.

On 8 January 2020, after Hamad had been in prison for eight months, the military court was presented with the plea bargain the parties had reached, which cancelled the stone-throwing offense. As per usual, the prosecutor presented the details of the deal to the court and the presiding judge, Major Merav Hershokwitz-Yitzhaki, clarified to the parties that she was not bound by it. She read out the amended indictment, and defense counsel stated that Hamad understood what it said and was pleading guilty. The judge declared him convicted based on his admission.

In the sentencing decision, the judge wrote that “around May 2018,” Hamad threw a Molotov cocktail at Israeli security forces. In keeping with the settlement reached by the parties, she sentenced him to 14 months in prison for this offense. She also triggered a 12-month suspended prison sentence pending against Hamad, ruling that six months would be served cumulatively and six concomitantly. Hamad was sentenced to a total of 20 months in prison. He was also given an additional 12-month suspended prison sentence for five years and a fine of 2,000 NIS (~596 USD), or a month’s jail term in lieu. This concluded the legal proceeding.

Motion for retrial and the prosecution’s response

As detailed, it was later discovered that in May 2018, when Hamad allegedly committed the offense for which he was convicted, he was in prison for another offense. According to his criminal record, which was part of the investigation file and available to the prosecution and the judge, Hamad was incarcerated from 17 December 2017 to 10 August 2018, and again from 27 September 2018 to 12 November 2018.

Adv. Asmahan ‘Abd al-Hadi filed a motion with the military court for a retrial under Section 157 of the Order regarding Security Provisions. She argued this was significant evidence that could “alter the outcome of the trial in the defendant’s favor” and that there was concern over a possible “miscarriage of justice,” as the evidence in the file was insufficient to support a conviction.

The prosecution chose not to retract the indictment following this embarrassing discovery. Instead, it filed a long, detailed response insisting the motion for a retrial was baseless and should be dismissed out of hand. The prosecution’s grounds were largely procedural: first, the applicant should have filed an appeal rather than a motion for a retrial; second, the motion was “delayed”.

The prosecution did also address the matter itself, essentially clarifying that it held Hamad’s confession regarding the offense for which he was indicted as enough for a conviction. The fact that he was serving a previous sentence in prison at the time the current sentence stated he had committed the offense was, according to the prosecution, immaterial at that point. According to the prosecution, “the conviction is the result of his admission in court of what was attributed to him. The applicant gave his admission voluntarily, while represented by counsel in the proceeding.” While there may be cases, albeit extremely rare, in which a person may retract a confession, this was not one of them, as “he presented no evidence that his confession was flawed” – namely, proof that his confession was not made freely, that it was given unlawfully, or that he was misrepresented by counsel.

In any event, the prosecution stressed, the discovery that he was in prison in May 2018 was no reason to acquit him. The evidence was not new (as he knew he had been in prison in May 2018 all along), it lacked “critical mass” and did not constitute “evidence and facts that may tip the scale” or had “gravity that could alter the outcome of the trial in favor of the applicant” – all conditions cited in case law on motions for retrial.

The main reason the prosecution took the matter so lightly is, it transpired, it did not take a firm stand on the date the indictment alleged Hamad carried out the offense, a date later confirmed in the sentencing decision. The prosecution maintains that “although May 2018 is a possible date, there are other dates” and that “assuming the exact date on which the offense was committed could only have been in May 2018” is patently unacceptable. The prosecution claims that “there were many dates over the course of that year in which he was not incarcerated and could have committed the offense.”

In its response to the court, the prosecution practically griped about the fact that Hamad did not provide the exact date of the alleged offense, noting he had been interrogated twice but “did not, in either interrogation, provide an account from which the exact time at which the offense was committed could be gleaned,” and instead “gave only an estimated timeframe.” The prosecution noted that in the first interrogation, Hamad said the incident took place “a year ago, I can’t remember the date,” and in the second interrogation, he said it took place during the arrest of a camp resident, who, inquiries found, had been arrested about 18 months prior to Hamad’s arrest. The prosecution stressed that the contradictory information merely indicated “the applicant’s confusion about the exact date of the riot, but not about whether the riot and the Molotov cocktail throwing actually occurred.”

In a hearing held at the Military Court of Appeals on 15 October 2020 before the president of the court, Colonel Netanel Benisho, the parties reached an agreement that Hamad would be released but not acquitted. The entire affair was a game of pretend: parties would agree that a motion for an extension of time to appeal had been filed; they would consent for the motion to be granted; and they would consent that in the appeal, the court would agree to commute the sentence so that it ended on the day of the hearing. The prosecutor stressed: “Our consent does not rely on accepting the arguments made by the defense with respect to a retrial, but on several flaws in the interrogation and legal process.”

Based on this consent, Col. Benisho decided as follows:

Having heard parties’ arguments in the matter, and in light of my assessment that the motion and the consent given serve justice and the appellant’s interests to the utmost degree, and given certain flaws that occurred during the interrogation and prosecution process, I hereby grant the motion for extension of time to appeal. I also accept the agreement reached by parties with respect to the appeal, such that the appellant’s total prison sentence would be replaced with a prison sentence corresponding to the number of days he had been imprisoned since his arrest, namely, one year, five months and eleven days… The appellant would additionally be required to pay a fine amounting to 1,000 NIS.

This is routine.

Hamad’s case is unusual only in starkly laying bare how the military justice system routinely operates: how thin the prosecution’s supporting materials are, how marginal the role of the judges is, and, mostly, how immaterial truth is in these legal proceedings, and what little need the prosecution and the judges have of evidence in order to convict a defendant.

In Hamad’s case, the prosecution had no independent knowledge of an offense. All it had to go on was several fragmented – and contradictory – statements by Hamad in two separate interrogation sessions. Yet the prosecution never attempted to obtain corroborating information, such as documentation of the incident by security forces, or to cross-reference Hamad’s prison terms against the possible dates of the alleged offense. It apparently saw no need to obtain proof of guilt, as a confession was deemed enough. From that point on, the rest was mere formality: filing an indictment, filing a motion for remand pending the end of proceedings, and ironing out the details of a plea bargain.

Courts within Israel also ascribe great importance to admissions of guilt, partly based on the assumption that people do not incriminate themselves for things they did not do. This assumption, however, has been sharply criticized in both Israeli jurisprudence and legal literature. For instance, in December 1994, when the Goldberg Commission published its recommendations regarding convictions based solely on confessions, it found that “the notion that a defendant’s admission of guilt during interrogation is the ‘queen of evidence’ must be taken with a grain of salt, and the presumption that no man makes themselves out to be evil in the sense that no one would incriminate themselves if they were innocent cannot be accepted as a legal presumption.” Accordingly, the commission established that the weight of a confession, even if obtained lawfully, is equal to any other evidence, and a defendant can be convicted on the basis of a confession only if “there is something else as well.”

Relying on Hamad’s confession was even more extreme than in most cases, as the prosecution was given proof that he could not have committed the offense at the time cited in the indictment and the sentencing decision. Yet the prosecution continued to rely solely on the confession. It did not balk at arguing that the judge had cited the wrong date in the sentencing – even though the prosecution never bothered to correct this error. The prosecution even half-heartedly admitted that it should have worded the indictment differently and possibly taken additional investigative steps – yet stressed that not doing so did not undermine Hamad’s confession. To justify its wording, the prosecution went so far as to empty the term “or so” of meaning, arguing it was broad enough to cover months before or after the cited date – essentially, an indefinable timeline.

The question when or even whether Hamad committed the alleged offense – the answer to which is a key element in an offense – is apparently irrelevant. As far as the prosecution is concerned, Hamad’s confession, as unsubstantiated as it may be, was enough to prove him guilty. In fact, it is not clear how the prosecution thinks this evidence could be overcome, as given the position taken, even unequivocal evidence that he could not have committed the offense cited in the indictment has no effect whatsoever.

The chain of events in Hamad’s case is not an aberration. It highlights what happens in thousands of cases every year. What this case shows is how a person can be sent to prison without any proof of guilt. In the vast majority of cases, military judges grant the prosecution’s requests for remand in custody, paying little or no attention to the evidence presented. This means Palestinians must mount their defense from prison, which drives most of them to sign plea bargains. An actual trial is extremely rare. Defendants know full well that if they choose to go to trial, even if they are eventually acquitted – a rarity in itself in this system – they would spend more time in prison than if they took a plea bargain.

What chance did Hamad stand of a fair trial? The military court system may look like a justice system for all intents and purposes. In fact, it is one of the most injurious mechanisms Israel uses to maintain control over the Palestinians. Hamad’s absurd conviction and the conduct of the military prosecution and judges throughout the proceedings show just how meaningless facts are in this system. They also reveal that the incarceration of Palestinians by the occupation authorities is entirely arbitrary: indictment, conviction and incarceration are completely independent of whether an offense was committed and whether this was proven in court. They depend only on whether Israel decided a certain Palestinian should go to jail.