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Judges aren't cogs in the occupation, they're the oil keeping it going

A new report maps out the two separate legal systems in the occupied territories — one for Jews and one for Arabs. At a launch event for the report, senior jurists showed up and argued it’s not their fault whatsoever. Former Supreme Court Justice Dalia Dorner asked: What can we do? The answer: A lot.

(Translated from Hebrew by Ofer Neiman)

Israel's Supreme Court sits as the High Court of Justice, April 1, 2014. (Photo by Oren Ziv/Activestills)

Israel’s Supreme Court sits as the High Court of Justice, April 1, 2014. (Photo by Oren Ziv/Activestills)

There was something mesmerizing about listening to representatives of the legal establishment speak at a conference held by the Association for Civil Rights in Israel (ACRI) last week. Mesmerizing and terrifying. The hardest thing was hearing Dalia Dorner — one of the most important judges in Israel, a recent candidate for the Israeli presidency, the president of the Israeli Press Council and an icon of sorts among the liberal camp — explaining that the Israeli Supreme Court actually has no influence on the reality of the occupation. In fact, she simply shirked all responsibility for the decisive role played by the judicial system in the establishment and consolidation of the military regime in the occupied territories.

But let’s start from the beginning. The conference, which took place last week at Tel Aviv University’s law school, was dedicated to ACRI’s new report, “One Rule, Two Legal Systems: Israel’s Regime of Laws in the West Bank.” The report systematically maps out what has become one of the main factors behind the reality in the occupied territories: the application of legislation on a national-ethnic basis. Jews reside in the West Bank as Israeli citizens, and Israeli civil law applies to them by virtue of a military order. Palestinians, on the other hand, are subjected to a full military regime, tried by military courts for any offense and denied the right to vote in the institutions that shape their lives.

Click to read the full report

The report provides a detailed account of this structural discrimination, which has become a pillar of the political and legal reality in Israel. The report also explains the significance of said discrimination on the lives of the Palestinian residents of the occupied territories — from the penal code, through planning and construction permits, down to traffic laws. Did you know, for example, that a police officer is authorized to rescind a Palestinian driver’s license or confiscate his or her vehicle upon issuing a traffic citation if they discover he or she has not paid a previous fine? According to ACRI, there is no parallel clause in Israeli law that applies to settlers. One road, one police officer, one offense, two drivers, and two different laws, regardless of any security questions. And we haven’t even addressed the disparity in freedom of movement, the right to a family life, the right to a livelihood and separate roads etc.

At last week’s conference senior legal scholars convened to discuss the report and its significance. The attorneys from ACRI, as well as leftist speakers, more or less said that without an end to the occupation, there can be no rectification of the structural discrimination, and vice versa. Nothing particularly new or surprising.

By contrast, it was both fascinating and disheartening to listen to the state spokespeople. One by one they asked “not to discuss politics,” explicitly admitted that the reality described in the report is based on deep, structural inequality between the populations and suggested marginal rectifications. Not a single one of them assumed true responsibility for their role.

For example, Aharon Mishnayot, former president of the Military Appeals Court in the West Bank, said that he was deeply troubled by the disparity between the two populations. Mishnayot told the crowd that he had even tried to use his limited tools in order to reduce this disparity in rights so that the legal status of Palestinians would gradually approach that of Israelis, citing as one example the establishment of a military court for minors.

Col. Doron Ben-Barak, the IDF’s legal advisor in the West Bank, welcomed the public discourse brought about by the report, and joined those who aspire for a gradual, prudent reduction of the disparity. Ben-Barak stressed that the solution could eventually come only from the political echelon.

Deputy Attorney General Dina Silber told the crowd that the State Attorney’s Office was often helpless in the face of cases in which the state simply disobeyed the law or decisions issued by the High Court of Justice, thus exacerbating offenses against Palestinians. Silber added that nothing could be done about this (+972 blogger Yossi Gurvitz rightly commented from the audience that her role as a civil servant was precisely to prevent the state from taking actions which violate the law, as well as to refuse to represent the State when it does so).

All the speakers ignored the fact that they are not just little cogs in the occupation machine, but rather the oil that keeps that machinery running, which is seemingly troubling to them. Troubling, but not to the extent that they would refuse to take part in the system. Their work, day by day and hour by hour, is to maintain the system, to take part in the political persecution of leaders and nonviolent activists and to fortify the mechanisms that remove Palestinians from their lands and allow for the expansion of settlements.

Authorized by the High Court of Justice

Former Supreme Court Justice Dalia Dorner (Levy Dudy CC BY-SA 3.0)

Former Supreme Court Justice Dalia Dorner (Levy Dudy CC BY-SA 3.0)

But the most extreme speech was Dalia Dorner’s. “We are just jurists, what can we do?” she asked. The former judge described the current situation as she understands it: there is a military regime in the occupied territories, there are settlements, there is a population there “that does not want us,” and there is a will to maintain “our security, [referring to] those who are sitting here in Tel Aviv.” If one accepts all this as fate, then what can the legal system actually do?

It seems that Dorner had not read the summary of the report that was at the center of the conference. In the report the Israeli judicial system is accused of having a tendency to refrain from discussing claims regarding discrimination or the illegality of the judicial separation policy. This means that the system has the ability to discuss these issues, yet chooses not to do so. Nothing is due to fate.

Dorner could have also recalled the active role played by the Israeli High Court in the perpetuation of the occupation. This is the very court on whose bench she served (she previously served as a judge with the rank of a colonel in the West Bank Military Appeals Court). It was indeed the High Court of Justice that legitimized the very existence of the settlements, the regime that props them up and the separation wall — all in violation of international law, as agreed upon by jurists around the world, including a ruling by the International Court of Justice.

As a military prosecutor said at my own trial (when I was indicted along with three friends for refusing the draft), it was the Israeli High Court that legitimized the targeted assassination policy; the administrative detention of Palestinians; the demolition of Palestinian homes as punishment for acts of terror committed by their relatives; the use of flechette shells (which spray out thousands of tiny and potentially lethal metal darts) in civilian population areas; the army’s policy of defending illegal settlements, and so on.

Dorner ignored all of this. “We are just jurists,” she said. Perhaps she should have watched Ra’anan Alexandrowicz’s “The Law in These Parts,” in which the army’s senior jurists (including former President of the Israeli Supreme Court Meir Shamgar) describe the pivotal role that they themselves played in putting together the orders, secret procedures, decrees and rulings that have laid the legal foundations for the existence of such a lengthy occupation, at the heart of which lie two separate legal systems.

The truth is that jurists, like all the professionals who maintain the occupation, can do a great deal. Just like architects, journalists, economists, hi-tech workers, entrepreneurs, real estate brokers and many others, they can refuse to accept the occupation’s anti-democratic nature. They can refrain from taking part in its mechanisms. Perhaps more than any other group, these jurists can challenge its legitimacy in public vis-a-vis Israeli society and the world. The mask of legitimacy and morality they provide this occupation, in tandem with “helplessness” self-justifications, is one of the more dangerous crimes that serve a regime based on separation and discrimination.

This article was first published on +972’s Hebrew-language sister site, Local Call. Read it in Hebrew here.

Related:
Israel’s newest Supreme Court justice and rule of law in Israel
Israel’s High Court chooses occupation over international law

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    COMMENTS

    1. Ginger Eis

      “(…) “One Rule, Two Legal Systems: Israel’s Regime of Laws in the West Bank.” The report systematically maps out what has become one of the main factors behind the reality in the occupied territories: the application of legislation on a national-ethnic basis. Jews reside in the West Bank as Israeli citizens, and Israeli civil law applies to them by virtue of a military order. Palestinians, on the other hand, are subjected to a full military regime, tried by military courts for any offense and denied the right to vote in the institutions that shape their lives.”

      You lie (!) Mr. Haggai Matar, by employing false generalization, and making statements that have no basis in fact and law:

      a. (More than) 98% of Palestinians live under Palestinian Rule (the figure is undisputed)! Israeli law – civilian, military or otherwise – does not apply to them. They “vote in the institutions that shape their lives” and they live according to their own traditions, culture and religion and they judge themselves according to their own laws.

      b. Israeli-Arabs, non-Jewish Israelis and foreigners with Israeli residence permit ALSO live in Judea & Samaria and are treated the same as Jewish Israelis. Your claim” the application of legislation on a national-ethnic basis” is blatantly false.

      c. Military Orders also apply to Jewish Israelis: http://mondoweiss.net/2011/12/breaking-night-arrests-of-israeli-rightists

      d. An overwhelming majority of Jewish Israelis are open to applying Israeli law in Area C RIGHT NOW and giving FULL citizenship and EQUAL RIGHTS to those Palestinians living under Israeli Rule in Area C. Guess who is opposed to that: the Palestinian Authority, ACRI, Btselem, +972mag and other political NGO’s who are hell bent on distorting facts, smearing- and destroying Israel – regardless of how disastrous their actions are for the same Palestinians the claim to care about.

      Mr. Haggai Marta, your propaganda fools no one.

      Reply to Comment
      • You haven’t refuted anything. In fact, you have shown how bad Israeli apartheid is.

        Cheers and Lols. Keep up the Hasbara

        Reply to Comment
      • Haifawi

        That’s some of the ‘best’ hasbara I’ve seen.

        a) Area A is not under ‘Palestinian rule.’ IDF military orders also apply to Area A (such as when the IDF attempted to banish that PFLP member to Jericho and she camped out in Ramallah). Furthermore, Area A is not contiguous, and any travel between cities will subject oneself to this discriminatory regime.

        b) you are correct that the application of israeli civil law is done on the basis of nationality, rather than ethnicity. But on what basis is nationality distinguished? It certainly isn’t geography. And the statement ‘no Palestinians are Jews’ is correct.

        c) SOME military orders are applied to jewish israelis, but jews will never be tried in military courts.

        d) The West Bank is a contiguous territory under military occupation. unilateral partial annexation is a war crime.

        Reply to Comment
        • Ginger Eis

          Here is the core of the Oslo Accords signed between Israel and the Palestinian Authority:

          1. Following the Oslo Accords in 1994, Palestinians under the jurisdiction of the PA (i.e. those living in Area A) came under the FULL administration (civilian and military) of the PA. Since then, the PA has its own Courts for offenses committed in Area A and is responsible for arrests and imprisonments of persons from Area A. Whether or not Area A is contiguous is irrelevant in this regard! However, Israel retains the right to arrest an individual from Area A IF (and only IF with emphasis!) (a) said person has carried out terror attacks and/or helps in planning and executing said attacks AND (again with emphasis!) (b) the PA fails to arrest the person.

          2. In Area B, the PA has FULL civil control. Both Israel and the PA have SECURITY responsibilities and either one may arrest, detain and charge persons therein on security related matters. Thus where an individual is arrested by the Israeli or the Palestinian security services determines which laws and court system are applicable to the case. Israel may arrest ONLY those involved with terror/security offenses. ALL, and I mean ALL, other matters go to PA Police and Courts!

          3. In area C (containing 2% of the Palestinian population), Israel alone is responsible for everything and the entire Israeli legal apparatus remains in force.

          4. Again 98% of Palestinian population live under FULL Palestinian Civilian Rule, not Israeli. This figure is undisputed!

          5. And no, “unilateral partial annexation” is no “war crime” under any definition whatsoever! Who told you that?

          Reply to Comment
          • Haifawi

            Area B is basically full of drug dealers and weapon smugglers because the PA is prohibited from having a police presence without IDF coordination. There were those sting operations a few months ago that netted a few hundred alleged criminals in abu dis and the environs but that’s the exception, not the rule.

            Israel has also rearrested people in area A once they have served their sentences in PA prisons (i.e. those PA police that shot the settler).

            And of course, as an Israeli citizen, the PA can only detain me and turn me over to the IDF, even if I commit an offense in Area A. I will only ever be subject to Israeli civil law no matter where I am. a palestinian will only be subjected to PA law or IDF law. there is no case in which we would be treated the same, even if we did the exact same thing in the exact same place.

            Reply to Comment
          • Brian

            G. Eis, the tireless, heartless occupation denier, all dressed up as usual in her officious, misleading pseudo-legalese. Never misses an opportunity to miss an opportunity to be honest. Eis and ‘Average American’ ought to get together over a glass of wine and compare techniques of denial. They’re both eager practitioners of their respective forms of it.

            Reply to Comment
    2. Mikesailor

      Recently I saw Stanley Kramer’s film about the Holocaust:”Judgment at Nuremburg”. In the movie, the main defense of the Nazi legal system eerily echoes Dorner: “We are just jurists”. Therefore any responsibility for extra-legal activities and the rubber-stamping of egregious violations of human rights are not her fault. Does anyone wonder why I have said that the Israeli legal system is a sorry excuse and has no place in any kind of legal forum in the civilized world.

      Reply to Comment
    3. MIkesailor

      The Oslo Accords, by their own terms, were to expire five years from the date they were signed. Now, here is how disingenous and dishonest is our Ginger. The Oslo Accords, by their very nature, acknowledged that these territories: A, B and C are , and were occupied and that Israel was, and is, an occupying power. Otherwise, Oslo would have been completely unneccesary. Therefore all Israeli settlement activity is blatantly illegal. Furthermore, Abbas and the rest of the PA is also illegal; their terms of office having expired years ago. As I’ve said before, Abbas and the rest of his cronies are Quislings and paid Israeli stooges. Otherwise, despite their legal infirmity, the ICC’s jurisdiction would have been invoked long ago.

      Reply to Comment
    4. Haggai – thanks for your integrity and your personal history.

      “As a military prosecutor said at my own trial (when I was indicted along with three friends for refusing the draft), it was the Israeli High Court that legitimized the targeted assassination policy; the administrative detention of Palestinians; the demolition of Palestinian homes as punishment for acts of terror committed by their relatives; the use of flechette shells (which spray out thousands of tiny and potentially lethal metal darts) in civilian population areas; the army’s policy of defending illegal settlements, and so on”

      The only thing that is lacking, contrary to what Dalia Dorner would have us believe, is the will and the desire to make a change. She is apparently quite satisfied with the status quo, which cannot stand.

      Reply to Comment
    5. Ben Zakkai

      The judges and high-ranking government officials just about all come from the exclusive Israeli socio-economic elite (Ashkenazi and mostly secular)– how do you think they got those nice jobs, anyway? — and while they’re expert at making occasional “enlightened” remarks about human rights or expressing “regret” about the status quo, they are in fact the chief guardians and beneficiaries of that status quo. Don’t expect substantial change from that quarter.

      Reply to Comment
      • Hey Ben – long time no read 🙂

        Reply to Comment
        • Ben Zakkai

          Hi Marnie, Cheers, been busy 😉

          Reply to Comment

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