Related Rule
Israel
Practice Relating to Rule 100. Fair Trial Guarantees
Israel’s Manual on the Rules of Warfare (2006) states:
The population of occupied areas
International law governs the duty of the army and its authority over populations in occupied areas or in zones under military occupation during battle. The Fourth Geneva Convention includes a complete list of instructions that is binding upon the army in its dealings with the civilian population in an occupied area and regulate the army’s authority (for example … how the martial courts should be conducted in the area … and more).
The State of Israel claimed in the past that the Convention, at least in part, does not constitute customary international law, however, for political reasons it applies the humanitarian provisions of the Convention de facto, with respect to everything concerning the Occupied Territories. 
Israel, Rules of Warfare on the Battlefield, Military Advocate-General’s Corps Command, IDF School of Military Law, Second Edition, 2006, p. 27.
The Manual on the Rules of Warfare (2006) is a second edition of the Manual on the Laws of War (1998).
Israel’s Order on Security Regulations (2009), which established a juvenile court in the West Bank for a period of one year, states:
a. No child shall be subjected to trial with an adult unless the consent of the military prosecutor is provided or the consent of any person given this power by the military prosecutor.
b. Any child charged with an adult in the same case and appears in court other than a juvenile court, the court has the jurisdiction to proceed with this case. If so, the court must act as if it were a juvenile court and shall have all the jurisdictions granted to the juvenile court. Should the court decide not to examine this case; it must transfer it to the military juvenile court. 
Israel, Order on Security Regulations, 2009, Article 46.D.
The Order defines a “child” as “anyone under 16 years, and a suspect or accused who has not attained 16 at the time of submitting the list of charges”. 
Israel, Order on Security Regulations, 2009, Article 46.A.
Israel’s Order regarding Security Provisions (Judea and Samaria) (2009) states with regard to procedures:
At the opening of the trial, the military court shall read the indictment to the defendant, and shall explain it to him, should he so desire. The military court may refrain from doing so regarding a defendant represented by a defense attorney, if the defense attorney announces to the court that he has read the indictment to the defendant and explained its content to him, and the defendant has confirmed that announcement; these statements of the defendant and his defense attorney shall be recorded in the transcript. 
Israel, Order regarding Security Provisions (Judea and Samaria), 2009, Article 117.
Israel’s Order on Security Regulations (2009), which establishes a juvenile court in the West Bank for a period of one year, states:
a. Juvenile military court has the power to appoint a lawyer for the child if it finds that is in the child’s interest.
c. If there is not a lawyer for the child, the court must assist the child in cross-examination. 
Israel, Order on Security Regulations, 2009, Article 46.L.a (a) and (c).
The Order defines a “child” as “anyone under 16 years, and a suspect or accused who has not attained 16 at the time of submitting the list of charges”. 
Israel, Order on Security Regulations, 2009, Article 46.A.
Israel’s Order regarding Security Provisions (Judea and Samaria) (2009) states with regard to the appointment of a lawyer by a military court:
(a) If a person who is accused before a court panel of three, and has been indicted of an offense with a penalty of ten years or more, has not chosen an attorney, the court shall appoint him an attorney with his consent.
(b) The court may, for special reasons, at the request of the parties or at its own initiative – appoint a defense attorney for an accused person for whom there is no duty to appoint a defense attorney. 
Israel, Order regarding Security Provisions (Judea and Samaria), 2009, Article 77.
In its judgment in the Alkam case in 2007, Israel’s Military Court of Appeals for Judea and Samaria stated:
The fundamental right of the defendant that criminal procedures against him end within a reasonable time, is a corner stone of our legal system. The defendant’s right to a speedy procedure was also anchored in Article 71 to the Fourth Geneva Convention relative to the protection of civilian persons in time of war. 
Israel, Military Court of Appeals for Judea and Samaria, Alkam case, Judgment, 6 November 2007.
Israel’s Order Concerning Security Provisions (1970) states:
All witnesses, other than the accused, who have chosen to make a statement rather than take an oath prior to giving evidence before a military court, shall be liable to examination, cross-examination and re-examination. 
Israel, Order Concerning Security Provisions, 1970, Section 18.
Israel’s Order regarding Security Provisions (Judea and Samaria) (2009) states with regard to examining witnesses: “Witnesses that testify before a military court shall be subject to examination, cross-examination, and re-examination.” 
Israel, Order regarding Security Provisions (Judea and Samaria), 2009, Article 132.
Israel’s Order Concerning Security Provisions (1970) states:
If the accused does not understand Hebrew the military court shall appoint him an interpreter who will translate for him the statements made during the course of the hearing and the decisions of the court, unless the accused willingly renounces his right to have the proceedings translated wholly or in part. The accused has the right to object to a particular translator and to request that he/she be replaced. 
Israel, Order Concerning Security Provisions, 1970, Section 12.
Israel’s Order regarding Security Provisions (Judea and Samaria) (2009) states with regard to the provision of a translator service for the defendant:
(a) If it becomes apparent to the military court that the defendant does not know Hebrew, the military court shall appoint a translator who will translate for him what is said during the hearing and the decisions of the court, unless the defendant willfully waives the translation, entirely or partially; the parties have the right to object to the translator and request his replacement.
(b) A piece of evidence submitted to the military court which is not in Hebrew or in another language known by the court and the parties shall be translated, and testimony that is not in such a language shall be recorded in the transcript while translating it into Hebrew, if the court has not ordered otherwise; recording of the translation into the transcript shall constitute prima facie evidence of what was translated. 
Israel, Order regarding Security Provisions (Judea and Samaria), 2009, Article 116.
Israel’s Order concerning Security Provisions (1970) states:
(A) Every person tried before a military court shall be entitled to be present during the whole trial so long as he conducts himself properly.
(B) If the accused does not conduct himself properly the court may, at its own discretion, order his removal from the courtroom and continue the proceedings in his absence, provided that it makes provisions for informing the accused of what has occurred during the trial, and gives the accused the opportunity to defend himself.
(C) The court may, as it deems fit, permit the accused to be absent from the court during the whole or any part of a trial on such terms as it may set. 
Israel, Order concerning Security Provisions, 1970, Section 35.
Israel’s Order regarding Security Provisions (Judea and Samaria) (2009) states with regard to the presence of the defendant at the trial:
(a) Every defendant shall have the right to be present during all of the trial proceedings, as long as he conducts himself appropriately.
(b) If a defendant conducts himself improperly, the court may, at its discretion, order his removal from the courtroom and continue the trial proceedings without him present, on the condition that he is updated regarding the content of the trial proceedings, and is given an opportunity to defend himself.
(c) The military court may allow the defendant to be outside the courtroom during the entire trial or part of it, if it sees fit to do so, under the conditions it determines. 
Israel, Order regarding Security Provisions (Judea and Samaria), 2009, Article 114.
Israel’s Order Concerning Security Provisions (1970) states:
The military court shall hold cases brought before it in public. However, a military court may order that a case brought before it shall be conducted wholly or in part behind closed doors if it considers it appropriate to do so in the interests of the security of the Israeli Defence Forces, justice, or for public safety. 
Israel, Order Concerning Security Provisions, 1970, Section 11.
Israel’s Order regarding Security Provisions (Judea and Samaria) (2009) states with regard to public hearings:
The military court shall hold the hearings before it in open court; however, the military court may order that the hearings before it shall be held, entirely or partially, in camera, if it is of the opinion that it is appropriate to do so for reasons of the security of IDF forces, the security of the public, the protection of morals, or the interest of a minor, a defenseless person, a person with mental limitation, or a person with psychological limitation, or in order to look after the interests of a complainant or accused in a sexual offense, or if it is of the opinion that a hearing in open court is liable to discourage a witness from giving free testimony, or from giving testimony at all. 
Israel, Order regarding Security Provisions (Judea and Samaria), 2009, Article 89(b).
In its judgment in the Dar-Halil case in 2008, Israel’s Military Court of Appeals for Judea and Samaria stated:
Before us, therefore, are two appeals, one on the part of the prosecution and another on the part of the defense, against the verdict, and against the degree of severity of the sentence. However, the prosecution’s appeal is unique, due to the fact that we were called within it to deal with the general question of hearing the testimony of General Security Services witnesses in the military courts in camera.
Holding Hearings in Camera
The principle of trial in open court is one of the foundational principles of the judicial process. …
Now, as then, the point of departure for the law in the area and in Israel is that court hearings will be held publicly and in open court.
That position was manifest in a most restricted fashion in the Fourth Geneva Convention (1949 Geneva Convention relative to the Protection of Civilian Persons in Time of War), which does not entrench the principle of open court in the wide sense. All the convention determines is that the representatives of the “Protecting Power” shall be allowed to attend the trial of any protected person, excepting cases in which it has been decided, as an exceptional measure, to hold the trial in camera in the interests of the security of the Occupying Power (Article 74 of the Convention; see also articles 62 & 105 of the Third Geneva Convention (1949 Geneva Convention relative to the Treatment of Prisoners of War)).
However, in more recent conventions, the principle of trial in open court has been more widely expressed. Thus, Article 14(1) of the [1966] ICCPR (International Convention on Civil and Political Rights) determines that every person has the right to have his arguments heard in public. However, that convention also recognizes the possibility of holding trial in camera for reasons of morals, ordre public or national security. The convention also recognizes the possibility of holding trial in camera if, in the opinion of the court, that is necessary in order to do justice. In its commentary on the ICCPR, the UN Commission on Human Rights emphasized that cases in which hearings are held in camera must be exceptional in nature. Similar provisions can be found in the [1969] American Convention on Human Rights (Article 8(5) of the convention) and the [1950 European] Convention for the Protection of Human Rights and Fundamental Freedoms (Article 6(a) of the convention …).
It seems that it can be said, therefore, that even though there is no clear entrenchment of the principle of trial in open court in the traditional sources of international law regarding the area, that principle has to a great extent become part of the accepted international norm. We emphasize, however, that in each legal system, exceptions are accepted, for various reasons.
In our area, the principle of trial in open court is entrenched in the beginning of section 11(a) of the Security Provisions Order, 5730-1970, which states:
11. Trial in Open Court
“… military courts shall hold their hearings in open court …”
Exceptions to the Rule
However, despite the centrality of said principle, it is not the only principle constituting all of the interests that are worthy to be manifest in a judicial proceeding. Beside it stand values, rights and interests that compete with it and even clash with it, whose exercise and protection at times require deviation from the principle of trial in open court. …
Study of the legislation in the area reveals that the legislature recognized the importance of these interests. It appears that there is no controversy regarding the proper purpose of the exceptions to the rule of trial in open court which were determined by the legislature.
Thus it was determined, at the end of section 11(a) of the Security Provisions Order, 5730-1970:
“however, a military court may order that the hearing take place in camera, completely or partially, if it is of the opinion that it is right to do so for reasons of the security of IDF forces, the security of the public, protection of morals or the well-being of a minor, or if it is of the opinion that trial in open court is liable to deter a witness from testifying or from testifying freely”.
As we have demonstrated, the legislature in the area and in Israel recognized the need to deviate at times from the principle of trial in open court, in order to protect a variety of interests, first and foremost the protection of the security of IDF forces and the security of the public. Also recognized was the need to hold hearings in camera when trial in open court is liable to compromise testimony.
Again, said exceptions are not woven of the same cloth, and a number of different interests and rationales are included in them, whereas in order to decide in this case, we shall concentrate primarily upon the principles related to the security of the area.
The Security of the Area
… The security interest is an interest that, fundamentally, expresses society’s wish to exist. Without stringent protection of the security of the public, the societal fabric is liable to fall apart, and the government is liable to find itself devoid of means to ensure the most basic right for which it was appointed: the right to life …
It is against that background that one must read the provisions of international law in Regulation 43 of the Hague Regulations (Regulations concerning the Laws and Customs of War on Land, The Hague, 18 October 1907) and Article 64 of the Fourth Geneva Convention (1949 Geneva Convention relative to the Protection of Civilian Persons in Time of War), which determine the protection of ordre public and the security of the forces occupying the occupied territory as supreme principles, according to which the military commander shall act. 
Israel, Military Court of Appeals for Judea and Samaria, Dar-Halil case, Judgment, 29 May 2008.
[emphasis in original]
Considering that the Military Prosecutor would like the statements of certain witnesses to be received in closed session, particularly those people who are the victims of rape;
Considering that counsel for the defence is opposed to the requested closed session, arguing that the Chief Warrant Officer publicly acknowledges that he raped certain women;
Considering that the Military Prosecutor states that he is requesting the closed session for the charge of complicity in sexual torture;
Considering that counsel for the defence wishes for his client to be granted permission to make his statements publicly because the defendant has decided to speak the truth;
Considering that the Military Prosecutor states that the case file contains a document containing the names of the women affected and that an extract of this document has been reserved for journalists, and so he asks the War Council consider the advisability of a closed session;
Considering that the bench withdrew to deliberate the petitions of the two parties;
Considering that, after the deliberations, the War Council found that the witness has the right to make a statement in closed session[.] 
Rwanda, War Council of the Republic of Rwanda, Rwahama case, Judgment, 24 November 1998, pp. 12–13.
In January 2010, in an update of its July 2009 report on Israeli operations in Gaza between 27 December 2008 and 17 January 2009, Israel’s Ministry of Foreign Affairs stated:
Even though the Military Courts are located within military bases, their proceedings are generally open to the public. Military Courts may conduct proceedings in camera only in limited circumstances, such as when an open proceeding would jeopardize the security of the state. The news media can and does cover Military Court proceedings, and many judgments of the Military Courts are published on the official website of the Israeli judiciary, as well as on various public online databases. 
Israel, Ministry of Foreign Affairs, Gaza Operation Investigations: An Update, 29 January 2010, § 28.
[footnote in original omitted]
Israel’s Order regarding Security Provisions (Judea and Samaria) (2009) states with regard to appeal:
151. At the conclusion of the reading of the judgment, the military court shall explain the defendant’s right to appeal the judgment to him, and shall notify him of the deadline for filing the appeal.
152. The judgment of the military court of the first instance can be appealed in the Military Court of Appeals. 
Israel, Order regarding Security Provisions (Judea and Samaria), 2009, Articles 151 and 152.
In January 2010, in an update of its July 2009 report on Israeli operations in Gaza between 27 December 2008 and 17 January 2009, Israel’s Ministry of Foreign Affairs stated that, with respect to Military Courts: “Prosecutors have the right to appeal a sentence they regard as too lenient.”  
Israel, Ministry of Foreign Affairs, Gaza Operation Investigations: An Update, 29 January 2010, § 29.
Israel’s Order regarding Security Provisions (Judea and Samaria) (2009) states with regard to “double jeopardy”:
A person shall not be tried for an act of which he was acquitted or convicted previously, due to it constituting an offense, in a judgment given by a military court in the Area [Judea and Samaria] or in an occupied area or by a court in Israel; however, if the act caused a person’s death, he shall be tried for it even if he was previously charged for a different offense for the same act. 
Israel, Order regarding Security Provisions (Judea and Samaria), 2009, Article 188(b).