How Israel Stacks the Legal Deck


Palestinian baker and activist Khader Adnan captured headlines recently for a 66-day hunger strike that led him to the brink of death. His ordeal began in the dead of night on Dec. 17, 2011, when Israeli soldiers broke down the door of his West Bank home. Adnan was arrested before his terrified wife and daughters, and was reportedly abused verbally and physically upon detention and later in interrogation.

Adnan was never tried but instead faced administrative detention. Israeli prosecutors presented secret evidence to a military judge, who then ordered a four-month detention. Adnan is widely believed to be a leader in Palestinian Islamic Jihad, which Israel considers a terrorist organization. The government, however, lacked evidence that he was directly involved in terrorist attacks. Adnan’s protest against Israel’s unjust legal practices ended after an agreement between his lawyers and prosecutors to release him April 17 barring substantial new evidence.

Adnan’s case was unique for the extreme sacrifice he offered and the public attention it earned. Yet Israeli military courts, established after Israel’s 1967 seizure of the West Bank, East Jerusalem and the Gaza Strip, have imprisoned hundreds of thousands of Palestinians, including men, women and children, in similarly unfair proceedings, as documented by Lisa Hajjar in her book, “Courting Conflict: the Military Court System in the West Bank and Gaza.”

To Palestinians, Israeli military courts are sites of repression, not houses of justice. Palestinian defendants facing trial in 2010 were found guilty in 99.74% cases, according to Israel Defense Forces documentation. Proceedings are conducted in Hebrew, which few Palestinians speak. Judges and prosecutors answer to higher military authority, denying military tribunals full independence. Courts may renew administrative detentions in six-month increments indefinitely. Some Palestinians have been so detained for years, never having enjoyed the right to confront and cross-examine witnesses nor even to know the evidence against them.

Such evidence is frequently provided by Palestinian informers recruited by Israeli authorities, often through exploitation of the vulnerable. For example, Palestinians seeking advanced medical care that is unavailable in their own less-developed hospitals are sometimes pressured to collaborate in exchange for permits to enter Israel for treatment, according to Physicians for Human Rights-Israel. Credible allegations of torture and physical abuse of detainees gathered by such groups as the Public Committee Against Torture in Israel also continue to dog the military court system, despite a 1999 Israeli High Court of Justice decision barring four forms of torture previously used by interrogators. Evidence derived through informers is notoriously unreliable. Physically coerced statements are no more reliable: Those undergoing torture often say anything to alleviate their pain.

The quip often credited to Georges Clemenceau — “Military justice is to justice as military music is to music” — springs to mind. Yet the injustices of Israel’s legal treatment of Palestinians in the West Bank cannot be so blithely dismissed. The crude procedures of military courts may be tolerable during brief military occupations. Israel’s occupation of the West Bank is anything but brief.

Moreover, Palestinian litigants have fared scarcely better in Israeli civilian courts, including its vaunted High Court. There, suits to defend Palestinian rights routinely fail. Most recently, the High Court denied a petition that would have barred Israeli corporations from exploiting West Bank natural resources such as water, gravel and stone for Israeli use.

In the Jordan Valley, 10,000 Israeli settlers were allocated 18 times the water per capita that native Palestinians were allocated in 2008, according to the Israeli human rights organization B’Tselem. Restricted access to water and other natural resources has doubtless contributed to the dwindling Palestinian population in the Jordan Valley, from as many as 320,000 in 1967 to 56,000 in 2009. In leaving discriminatory allocations of resources undisturbed, the High Court functions as a tool of colonization.

Israel is a colonial power that is still expanding in an era of human rights and mass-media scrutiny. Its methods for clearing land for settlement are necessarily different than those of earlier colonial powers, which sometimes employed genocide and ethnic cleansing. Israel made the most of its opportunities by denying return to hundreds of thousands of Palestinians who fled from their homes or were forcibly expelled by Israeli forces in the wars of 1948 and 1967. Thereafter, its inexorable takeover of Palestinian lands and other resources has assumed primarily bureaucratic form, with its courts providing a veneer of legality. But the end result — the displacement of a native population in favor of settlers — is the same.

Israeli courts may provide justice to Jews living in Israel or the occupied Palestinian territories. But a legal system that is fair to one ethno-religious group while trampling the rights of others deserves to be recognized for what it is: a handmaiden to apartheid.

Our own government, by running diplomatic interference for Israel and providing it billions in military aid, is complicit in the entrenchment of Israel’s variant of ethno-religious discrimination. Why we support practices that subvert our interests and defy our values is a question that every American should ponder.

George Bisharat is a professor at UC Hastings College of the Law in San Francisco and writes frequently about law and politics in the Middle East.

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