Military Prosecutor v Mohammad Samikh Amin Ibrahim Al Nassar

Date26 August 1969
CourtMilitary Court (Israel)
Israel, Military Court, sitting in Schechem
Military Prosecutor
Mohammad Samikh Amin Ibrahim Al Nassar

War and neutrality Warfare on land Occupation of enemy territory Legislative, judicial and administrative functions of Occupant Geneva Convention relative to Protection of Civilian Persons in Time of War, 1949 (Article 64) Repeal or suspension of penal laws in occupied territory Discretion of Occupying Power regarding investigations, rules of procedure and evidence before military courts-Operation of dual legal system in occupied territory Position of new Government as new sovereign Function of military courts Nature of military legislation Defence (Emergency) Regulations The law of Israel

Summary: The facts.The defendant was accused of membership in an unlawful association under Regulation 85 (1) (a) of the Defence (Emergency) Regulations 1945. The defence took the preliminary point that a statement made by the defendant to the police was inadmissible in evidence under Jordanian law.

Held: The Court dismissed the preliminary point, observing that the Geneva Convention of 1949 did not bind an Occupying Power to any precise rules of evidence or procedure, but left the same to that Power to decide in the light of its need to protect itself and its forces in the occupied territory. The local military commander possesses legislative powers and is not obliged to follow local law. Under the Orders made in Judea and Samaria, the rules of evidence that are followed are those prevailing in Courts Martial under Israel law, but power is given for departures from such rules where it is deemed just to do so. The Orders also contain various provisions as regards procedure, but here also the court may in any matter not covered by the Orders give directions as to procedure as it deems most suitable for dispensing law and justice.

The following is the text of the relevant part of the judgment:

The defendant, Mohammad Samikh Amin Ibrahim al Nassar, appearing before me is accused of membership in an unlawful association under Regulation 85 (1) (a) of the Defence (Emergency) Regulations, 1945.

The prosecution called as witness Hatem Shonar, a convicted person, who had been commander of the Popular Fronta subversive unlawful associationin Nablus. During examination of the witness the prosecutor requested that he be declared a hostile witness, since he was not answering the questions put to him and his testimony in court differed from that which he had given in his own trial and in his statement to the police.

Learned defence counsel contended that the witness was not to be examined on what he had said elsewhere unless he were given the testimony of the witness on that occasion for perusal. The prosecutor very fairly admitted that he did not have the original material on which he was going to rely in examination, and that he was willing to adjourn so as to enable defence counsel to study the material. At that stage, before the prosecutor called the investigating officer who had taken the defendant's statement to the police, learned defence counsel submitted a preliminary argument regarding the admissibility of confessions by defendants in military courts.

The defence argued as follows:

1. Section 2 of Proclamation No. 2 concerning Law and Administration, of 7 June 1967, provides:

The law that on 7 June 1967 existed in the Region shall remain in force, as far as it is not inconsistent with this Proclamation or any other Proclamation or Order to be made by me, and with the modifications that result from the establishment of the government of the Israel Defence Forces in the Region.

2. Section 26 of the Security Provisions Order lays down:

Where the defendant has admitted the charge, the Court shall examine whether the defendant properly understands the nature of the charge.

3. Jordanian criminal procedure is in force in Judea and Samaria, and the military courts must, in accordance with section 2 of Proclamation No. 2, follow that procedure.

4. According to sections 48 and 63 of the Jordanian Code of Criminal Procedure, a suspect is not to be interrogated except in the presence of counsel and this only after he has been advised that he has the right to consult a lawyer and may do so within 48 hours. Moreover, according to section 133, which was cited, if it appears to the prosecution that the act attributed to the suspect constitutes an offence and the evidence is sufficient for putting him on trial, it should decide to charge him with the offence as it understands the situation.

5. The right to charge a person (under Jordanian criminal procedure) lies with the Public Prosecutor, and he alone may make the charge and take evidence from the suspect.

6. Where before making his statement or before the beginning of the interrogation the suspect was not...

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