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.
I wonder what was going on in Shamgar’s mind at the time of the decision in 1981. Perhaps even he no longer knows. He claims in the interview not even to remember the Tarkoumiya case. Maybe the long-term consequences of his ruling were unclear at the moment he chose to uphold the validity of an anachronistic Turkish law in order to enable the government to effectively steal Palestinian land. Probably he was thinking only of the specific, highly localized, pragmatic setting of the Palestinian land taken over by settlers, since, in his view, only such matters were justiciable. He rebukes Alexandrowicz for retrospectively deriving a deeper meaning from his ruling, long after the fact (as all historians habitually do with their sources).
One should bear in mind that the judicial decision depended upon a particular reading of what defines state lands (estimated today as perhaps 40 percent of the West Bank, including the lands on which most of the settlements sit) and how they can be used. In fact, the whole notion of state lands, miri, in theory belonging to no one but in fact often collectively owned and farmed by nearby villages, has been used cynically and opportunistically by Israeli governments intent on colonizing the West Bank.
It’s also possible that Shamgar did see the far-reaching consequences of his decision and was prepared to live with them. Perhaps he felt the fierce pressure coming from the government and the pro-settlement forces. Or he may have feared, as did other jurists at that time, that to rule boldly against the government’s settlement policy was to invite legislation by the Knesset that would overrule and emasculate the Supreme Court. There is no way to know. He certainly believed that by upholding the authority of the Custodian of Enemy Property to dispose of state lands as he saw fit, but at the same time allowing Palestinian residents to appeal such decisions, he was granting the latter a right that went well beyond the norm in conditions of belligerent occupation.
It is, in any case, clear that men credibly claiming to be the owners of the land in question stood before him, protesting the act of dispossession and the entire redefinition of the fate of state lands that enabled it, and that Shamgar found against them, allowing that act to take place, and then many, many more like it. Whatever he was thinking, the legal situation hardly existed in isolation from its social and cultural underpinnings. Was the court, in its own way, contaminated by the default principle of modern ethnonationalism? Simply stated, the theorem is that what is mine is mine, and what is yours is also mine, presumably rationalized in the usual manner in the minds of those charged with administering justice.
The al-Nazar case was one of many, but it nicely exemplifies what became a general practice. Purporting to be a ruling applicable only to the one ad hoc instance from Tarkoumiya, but based on a doubtful interpretation of what constitutes state land and what can be done with such land, this case allows us to draw a conclusion of far-reaching implication, as Kretzmer eloquently does:
In a situation of belligerent occupation, public property should indeed be protected until the occupation ends and the public can once again decide on its use. It requires a fair degree of naivité to believe, however, that the sole, or even dominant, purpose of the authorities, including the Custodian of Enemy Property, was to protect public land for the benefit of the local public or the absentee sovereign. The dominant purpose was to find land that could be used for settlements and other projects that served Israeli political interests.
My jurist friends often tell me that the Supreme Court must and does operate within the constraints of the society it serves, and that it cannot allow itself to take too radical a stand on central issues such as the legality of the settlement enterprise. The Court, they say, is not the forum in which such political issues should be settled. But I’m not convinced. There were many points at which the Supreme Court could have ruled against the government and the settlers, as it did in the Elon Moreh case, and for similar reasons, but deliberately refrained from doing so.
Here is another aspect of the problem: just as a soldier serving in the territories may find it impossible to identify a moment when he could or should refuse to carry out an order—since usually he has been involved, in one way or another, with a long series of acts that could easily be seen as criminal and immoral, beginning with the mere fact of his presence in the territories, and he thus finds himself, driven by inertia, on a slippery slope without signposts—so military judges, deeply embedded in the whole system of the occupation, may find it impossible suddenly to draw a line. One of the more reflective judges interviewed in the film, Jonathan Livny, admits that the system, as such, dominates the work of the military courts and predisposes those charged with administering justice to go along with the army and, by implication, with the General Security Service, which as a rule refuses to disclose its sources of information and usually works against the rights of a Palestinian defendant.
It’s not a pretty picture. Many things considered legal are morally reprehensible. Some legal systems are worse than others. The British Raj in India had laws and courts and judges, as did South Africa in the apartheid era. The distinctiveness of the Israeli case is that what began with a commitment to humane, universalistic values embodied in the rule of law slowly mutated into a situation where the courts themselves became accessories to a monumental, multidimensional crime. A more courageous Supreme Court might have at least attempted to stop it. I think Kretzmer’s conclusion is correct and, if anything, understated: “The Court provided legitimation for government actions that are highly questionable, not only on political grounds, but on legal grounds as well.”
One is still left with the mystery. In the late 1970s and early 1980s, the Supreme Court could consider individual appeals against land appropriation in minute detail. Today Benjamin Netanyahu’s government can simply decree, at will, a vast expansion of existing settlements and order the building of thousands of new housing units on occupied territory, and hardly anyone but John Kerry will protest. The original attempts to justify the settlements as a security measure—and the once-pervasive arguments to that effect before the courts—now look astonishingly archaic.
The settlements have nothing to do with security. A fictional legal landscape has taken hold: no one could possibly believe that the Custodian of Enemy Property is holding state land in reserve for eventual restoration to the rightful owners or the rightful sovereign. The occupation is not, for most Israelis, a temporary phenomenon; it is as natural and as enduring as the rocky hills themselves. Hundreds of small decisions and a few decisive, major ones have cumulatively altered, almost beyond recognition, the reality on the ground.
In the end the law is only one delimited dimension of a pervasive political program. Take the case of Silwan, just south of the walls of the Old City of Jerusalem, where the most ancient strata of the city’s habitation are said to be located. Jewish settlers call Silwan, a neighborhood of some 30,000 Palestinians, the “city of David.” They think the biblical King David walked these streets, and they have evolved a ruthless, highly distorted nationalist mythology to justify their increasingly successful attempt to take over Silwan and, so to speak, Judaize it. Spearheading their efforts is the organization Elad, which officially manages the national park in Silwan as a sub-contractor for the Israel Nature and Parks Authority. What this means in practice is that this extremist, hyper-nationalist organization literally calls the shots in the neighborhood, nearly always at the expense of the Palestinian population; it also issues orders to the Israeli archaeologists (including, at present, a Tel Aviv University expedition) digging there, theoretically under the auspices of the Israel Antiquities Authority but in reality under the express direction of Elad.
All this is, again, mostly legal under Israeli law, as indeed the courts have ruled in response to appeals by the Silwanis. Nevertheless, the situation as a whole reveals systematic collusion of the Israeli authorities with the settlers’ project in Silwan, including the police and the army; and here history itself and the archaeological record have been conscripted to the settlers’ vision, becoming additional tools in the ongoing structure of violence directed against the Palestinian residents of the neighborhood.
Or take the neighborhood of Sheikh Jarrah in East Jerusalem, the subject of the short, hard-hitting documentary My Neighbourhood, directed by Julia Bacha and Rebekah Wingert-Jabi, and produced by the Just Vision team of Israeli and Palestinian activists. For years the Jerusalem municipality, with the assistance of the civil courts, has been displacing Palestinian residents of Sheikh Jarrah, most of them refugees from 1948 who were given flats by the Jordanian government, and handing over their homes to religious settlers. Once again, the nationalist project is ostensibly legal. Israeli courts tend to rule that houses that were long ago—say at the beginning of the twentieth century, in Turkish times—owned by Jews can be transferred to Jewish settlers, although the present Palestinian inhabitants have been there since the 1950s. Under Israeli law, Palestinians are almost never able to reclaim any of the many houses they owned in West Jerusalem before the 1948 war.
This is not the place to enter into the legal complexities of this situation, but the obvious reality of severe injustice, motivated by blind ethnonationalist violence, sparked off a large-scale, relatively long-lived protest movement by Israeli activists cooperating with the Sheikh Jarrah Palestinians that is lyrically documented in My Neighbourhood. The police reacted to the protests with brutal force and widespread, arbitrary arrests, for which, incidentally, they were repeatedly censured by the Jerusalem District Court. The protests were apparently effective, temporarily halting the wave of dispossessions in the neighborhood; but the Palestinian owners of dozens of houses in Sheikh Jarrah still have eviction notices hanging over them, and one can assume that the authorities are biding their time for a suitable moment to carry out the orders.
All in all, it’s enough to drive an ordinary decent person mad with rage. Max Blumenthal’s book Goliath documents the rage; the strident tone evident in the subtitle, Life and Loathing in Greater Israel, continues unabated for over four hundred pages. There is no dearth of loathing in this book. Unfortunately, notwithstanding the book’s tendency toward emotional denunciation, there is much truth in its gruesome vignettes of modern Israeli hypernationalism in action, and not only in the occupied territories: there is a heart-wrenching chapter about the Bedouin village of al-Arakib in the northern Negev, which has been demolished over forty times by the security forces.
But by far the best parts of this depressing, wrathful work are the chapters that deal with Palestinian nonviolent resistance in the West Bank villages of Bil’in, Ni’lin, and, in particular, Nabi Saleh. Blumenthal went to the demonstrations there as a witness-participant, and he captures well the volatile components of that experience, familiar to many Israeli activists—the thrill of action in the face of repression and overt injustice, the proximity of danger, the hospitality of the Palestinian hosts when Israeli and foreign activists arrive to stand beside them, the acrid odor of tear gas and the exploding stun grenades, the astonishing courage of the villagers in the face of rubber bullets and live fire, the initiative and commitment of the village women, the intoxicating sense of inner freedom at such moments of standing up for what is right, and the grief at the inevitable losses.
For Palestinian demonstrators, these confrontations may well be, in essence, no more than an intensification of the dreary and dangerous everyday reality they have to suffer. Yet the whole mix can be addictive and, who knows, may someday be seen as marking the beginning of the political process that will ultimately put an end to the occupation and its miseries.
If that last sentence seems overly optimistic, you might consider the words of Bassem Tamimi, the leader of the Nabi Saleh protests, one of the group of remarkable Palestinian activists who have mastered the art of Gandhian civil disobedience and who are capable of lucidly articulating its message. He, too, has had extensive experience of the military courts. Here is part of what he said to the judge who presided over one of his trials, as cited at the end of Alexandrowicz’s film:
Every time I am called to appear before your courts, I become nervous and afraid. Eighteen years ago, my sister was killed in a courtroom such as this, by a staff member. In my lifetime, I have been nine times imprisoned for an overall time of almost three years, though I was never charged or convicted. During my imprisonment, I was paralyzed as a result of torture by your investigators. My wife was detained, my children were wounded, my land was stolen by settlers, and now my house is slated for demolition.
I was born at the same time as the occupation and have been living under its inherent inhumanity, inequality, racism, and lack of freedom ever since. Yet despite all this, my belief in human values and the need for peace in this land have never been shaken. Suffering and oppression did not fill my heart with hatred for anyone, nor did they kindle feelings of revenge.
I organized peaceful demonstrations in order to defend our land and our people. I do not know if my actions violate your occupation laws. As far as I am concerned, these laws do not apply to me and are devoid of meaning. Since they have been enacted by occupation authorities, I reject them and cannot recognize their validity.
The military prosecutor accuses me of inciting the protesters to throw stones at the soldiers. This is not true. What incites protesters to throw stones is the sound of bullets, the occupation’s bulldozers as they destroy the land, the smell of tear gas and the smoke coming from burnt houses.
If released by the judge, will I be convinced thereby that justice still prevails in your courts?