The Law in These Parts
I know a Palestinian shepherd from the South Hebron hills who was out in the hills with his sheep and goats, some years ago, when Israeli settlers brutally attacked him. There is nothing unusual about that. After a while some soldiers turned up and arrested the shepherd when he dared to complain. This outcome is also entirely normal. Then the real nightmare began. He was held for some three weeks before being charged and brought to court—a court that conducted itself entirely in Hebrew, a language he didn’t understand.
I first met him near Susya just before he was sentenced. He was living in a tiny, vulnerable khirbeh, or cluster of tents and sheep pens, on the edge of the desert, and he knew he was likely to be sent to jail for many months on the basis of the soldiers’ false testimony. He was terrified and also bewildered, unable to make any sense of what had happened to him and, of course, utterly unable to seek legal redress. Palestinians living in the occupied territories have, as a rule, no effective legal recourse, though not for lack of courts or judges.
Anyone who attends the trials in the military court at the major army camp of Ofer, just north of Jerusalem, rapidly comes to the conclusion that most Palestinian civilians who have the misfortune of appearing before that court have almost no chance of finding justice there. (It’s true that occasionally, very rarely, miracles do occur.) The chances improve slightly if the Palestinian happens to come before an Israeli civil authority such as the Jerusalem District Court or, indeed, the Israeli Supreme Court, as we will see in a moment. In matters of land ownership, over the last ten years or so Palestinian claims in the South Hebron hills have quite often been recognized by the civil courts, usually after an extended process—though getting the soldiers in South Hebron to bow to the authority of the court and to allow the farmers and shepherds access to their lands is another matter.
The soldiers and bureaucrats of the Civil Administration—that is, the army unit responsible for administering the occupied territories—often have to be forced to honor the courts’ rulings by acts of Gandhian-style civil disobedience. Ta’ayush, Arab-Jewish Partnership, has successfully carried through many such cases, restoring lands to the original Palestinian owners. It’s a tedious, dispiriting business, but we have nonetheless managed repeatedly to block, and in some cases even to reverse, the general, remorseless processes of dispossession and expulsion that constitute the primary reality and the true rationale of the Israeli occupation.
It’s easy to get arrested in the course of defending Palestinian fields and grazing grounds; we’ve all experienced this many times. Usually what happens is that we accompany farmers or shepherds to their lands; soldiers then appear, often together with armed settlers and the police, and (illegally) declare the area a Closed Military Zone, which means they can arrest anyone who remains there (settlers, however, are never affected by such a rule). For Israeli activists, arrest is usually neither traumatic nor prolonged, although in recent months there have been many cases where the soldiers or the police contrive false charges (such as assaulting a policeman) that are potentially dangerous.
But most Palestinians who have been arrested—and there have been hundreds of them over the last few years—immediately enter a limbo of uncertainty that can, as in my friend’s case, last for months or even years. Palestinians call this the “blank check”: once arrested, for whatever, usually arbitrary reason, they lose control of their fate. That is one reason that we always follow the lead of our Palestinian hosts when we offer to help them after they are attacked by settlers or threatened with arrest by the army; if they are not prepared to risk arrest, we will usually retreat, with them, at least for the moment. The name of the game is persistence: you have to keep coming back, week after week, in the hope that the civil courts will eventually rule in the rightful owners’ favor.
How did we reach this point of blatant, systemic injustice inflicted on an innocent civilian population of hundreds of thousands in what is known as Areas C and B, that is, those parts of the West Bank that are under either full or partial Israeli military control? How did the Israeli legal system as a whole come effectively to collude, passively or actively, with the ongoing project of Israeli settlement in the occupied territories? Ra’anan Alexandrowicz’s film, The Law in These Parts, arguably the finest Israeli documentary ever made about the occupation, seeks to answer this question. It also touches on the legality of torture, mass arrests, prolonged administrative detention without trial, the violent suppression of civilian demonstrations, punitive house demolitions, severe restrictions on freedom of movement, and other practices that have become commonplace under Israeli rule.
The “stars” of the film are a group of jurists, legal advisers, and judges who sat in the military courts in the territories and one eminent military figure, Meir Shamgar, who went on to become president of the Supreme Court (1983–1995). The story has been told before, notably by David Kretzmer in a densely argued book, The Occupation of Justice: The Supreme Court of Israel and the Occupied Territories (2002); but the power of Alexandrowicz’s film lies in the fact that he has enabled and encouraged these judges to delve into their memories and to speak their own truth. One might also say that he has given them enough rope to hang themselves.
Undoubtedly, there is a mystery here. There is no reason to doubt the integrity of these men who sat in judgment over many thousands of Palestinian prisoners, detainees, demonstrators, dispossessed farmers, hapless passers-by, and security suspects of one kind or another. And yet on the whole the record of the Israeli judicial system in relation to Palestinians is, in my view, appalling. The judges interviewed in the film both shaped and administered the law in the occupied territories; all of them seem to have felt that they were committed to a humane, enlightened notion of justice. Occasionally, they take retrospective pride in what they did: for example, Meir Shamgar asserts that the decision, shortly after the Six-Day War, to allow Palestinian civilians under occupation to appeal to the Israeli Supreme Court was an act of extraordinary legal largesse, one that he hopes might be adopted by other occupying powers throughout the world.
Indeed, it would have been consistent with the overarching Israeli policy toward the Palestinian population, as that policy crystallized in the late 1960s and early 1970s, to deny these people the right to appeal to the highest civil authority; the decision to allow such appeal was thus, indeed, a worthy one. But when we examine the rulings by the Supreme Court (known by the Hebrew acronym Bagatz) on critical issues in the territories over the last forty-seven years, we begin to see the hidden face of the occupation and the dark axioms that inform it.
Take, for example, the crucial question of appropriating land for building Israeli settlements. The first settlements were founded in the mid-1970s by ideologically motivated, religious settlers, who fairly quickly won government backing. To create the settlements—then as now—they appropriated Palestinian land. Initially, when the question of the legality of this procedure came up before the Supreme Court, the court wavered; an important ruling, the Elon Moreh case (1979), which involved taking over privately owned Palestinian land for settlement, declared this act illegal and forced the government to move the projected settlement to a nearby hill.
In those years Ariel Sharon was minister of agriculture and a more or less unstoppable proponent of the settlements. He demanded of the army jurists that they find a legal solution to his problem. The man who came up with a bright idea—Lieutenant Colonel Alexander Ramati—describes in his interview in the film just what happened: he suddenly remembered that under the nineteenth-century Ottoman land law, still theoretically in force in the Palestinian territories, if a person standing in a field couldn’t hear a rooster crowing in the nearest village, and if that field was not under continuous cultivation for three years, that land could be classified as mawat—“dead land”—and appropriated by the state. Sharon leapt at this ruse and ordered Ramati to come the next day, “with or without your rooster,” to begin looking for such lands all over the West Bank.
That was one of the beginnings. Since then over a quarter of a million acres of Palestinian land in the territories have been taken by the Israeli state for the purpose of settling Jews (the figures keep climbing, not only because of continual settlement activity but also because many settlements have been granted what is called a Special Security Zone, usually many times the size of the present settlement, to allow for future expansion). The West Bank is riddled with hundreds of settlements, many of them “illegal” even under Israeli law, that is, not established by government decision but set up by private initiatives of fanatical settlers.
It’s important to note that many, probably most jurists throughout the world, including many in Israel, regard all the settlements on the West Bank as illegal under international law, specifically under Article 49 of the Fourth Geneva Convention and Article 8(2)(b)(viii) of the International Criminal Court Rome Statute of 1994, which Israel initially signed but then refused to ratify. Both of these texts prohibit an occupying power from changing the demographic composition of the occupied area. Israeli judges are certainly aware of this fact, yet the courts have never addressed the question of the legality of the settlement project as a whole.
But the question of the legality of settling state lands, including the all-too-aptly named “dead lands,” did come before the Supreme Court not long after Ramati had come up with his suggestion. In a landmark decision known as the al-Nazar appeal presented by villagers from Tarkoumiya in the southern West Bank, who claimed ownership over fields that had been classified as state land, Meir Shamgar and two other judges ruled that the Israeli state, as the occupying power, had the legal right to dispose of such lands as it saw fit, renting them out or allocating them at its discretion—which meant, in practice, that the mechanism of settling Israelis on these lands was, in the eyes of the court, legal.
When Alexandrowicz gently asks Shamgar in the interview if he could see any link between this decision and the political reality that it made possible, Shamgar says, “No—there is no indication that judgments of the courts were connected to the political situation in any way.” This unequivocal answer is followed by a somewhat eerie silence, as the camera lingers on the judge’s face. Watching it, I thought perhaps the honorable jurist might be having a moment of doubt, or of troubling insight.