Practice Relating to Rule 100. Fair Trial Guarantees
Section K. Public proceedings
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’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.
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  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  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.
[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[.]
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.
[footnote in original omitted]