Vol. 15 No.7 (July 2005), pp.609-611
COURTING CONFLICT: THE ISRAELI MILITARY COURT SYSTEM IN THE WEST BANK AND GAZA, by Lisa Hajjar. Berkeley, CA: University of California Press, 2005. 335pp. Hardback. $60.00/£38.95. ISBN: 0520241932. Paper. $24.95/£15.95. ISBN: 0520241940.
Reviewed by Menachem Hofnung, Department of Political Science, The Hebrew University of Jerusalem. Email: email@example.com .
Contrary to certain traditional dogmas suggested by some military theories which state that law and warfare are a contradiction per se, law – as a component of an armed conflict – is becoming increasingly more important than ever before. Arguments based on humanitarian international law of war are becoming significant constraints on policy decisions, because governments are now judged according to their compliance with international laws during armed conflicts.
Lisa Hajjar, a professor in the Law and Society program at the University of California, Santa Barbara, spent several years during the 1990s conducting her research in both Israel and the occupied territories, on Israel’s military court system. Hajjar describes the military courts as the centerpiece of Israel’s apparatus of control in the West Bank and Gaza since 1967. Her central argument maintains that the Israeli state has made prodigious use of law to maintain and legitimize its rule over Palestinians in the West Bank and Gaza, as well as to punish and thwart resistance (p.49). The military court system has served as the important foundation within the broader range of governing institutions and practices in which Palestinians are controlled by the state of Israel, subjected to restrictive codes of conduct, and physically immobilized through the use of mass arrests, closures, curfews, checkpoints and prisons.
Following the takeover of West Bank and Gaza in the 1967 war, Israel established a unique permanent legal system under the disguise of temporary occupation: by abstaining from officially incorporating the territories into Israel, the state was able to exercise its control over the territories and avoid the possible implications of granting the Palestinian residents full equal rights, thus creating a bi-national, instead of a Jewish, state. This new legal structure was built on four systems of judicial tribunals operating within the Occupied Territories: first, the system of ordinary courts with general jurisdiction and which had existed in the Territories until 1967; second, the system of military courts, established in 1967; third, the system of religious courts; and fourth, that of municipal courts operating under different laws for Jewish settlements and Palestinian municipalities. Adding to this legal entanglement is the fact that administrative acts of the Military Commander are subject to judicial review by the High Court of Justice (Hofnung 1996, at 225; Shamgar 1982). The uniqueness of the military courts, as elaborately described throughout Hajjar’s book, lies in the fact that since the late 1970s, the courts try Palestinians [*610] only. While all official roles are filled by Israeli citizens, the military courts in the Occupied Territories – which differ from military courts in Israel itself – try non-citizens (West Bank and Gaza residents) only.
COURTING CONFLICT is, perhaps, the most detailed book on the Israeli military court system. Despite the existing abundant body of literature concerning the Israeli legal system of occupation, studies usually assess the larger picture and devote much space and attention to high profile litigation before the Israel Supreme Court sitting as High Court of Justice (Dotan 1999; Kretzmer 2002; Shamir 1990). Only a small number of studies analyze – rather than describe – Israel’s controlling machinery in the West Bank and Gaza Strip (Shehadeh 1988). While carrying out her research, Hajjar conducted in-depth interviews with dozens of Israelis and Palestinians about their personal experiences and practices, in her effort to explain the means by which the system functions and the ways by which it has affected the conflict.
Despite its theoretical soundness, however, Hajjar’s book is not an easy read: coming out of an updated and rewritten Ph.D. thesis, it opens with long and detailed theoretical 80-page introductory chapters, only after which the author presents her empirical research and findings, which are her most substantial and important contribution to the growing literature on regimes of occupation and domination of conquered peoples.
Hajjar’s field research proves to be her central point of strength: the long hours spent in attending military court proceedings, interviewing judges, prosecutors, defense lawyers, defendants, court translators, and scholars, proves successful in delivering rich and detailed accounts of the internal workings of the system, and the ways by which it affects the life of Palestinians residents in the Occupied Territories. The two chapters that throw light on issues that have been almost absent from previous research on Israeli military courts—the extensive use of plea bargains, and role played by court translators, mostly Arabic speaking Israeli citizens of Druze origin—are particularly important. The Druze Identity is a distinctive religious/cultural designation. The Druze are a schismatic sect of Shi’i Islam, but in Israel they are regarded as non-Arabs and are drafted into the army. Because Arabic is their first language, they fill the role of translators in courts where defendants speak Arabic but proceedings are held in Hebrew. Hajjar provides a wonderful example of their mixed identity by quoting from her interview with one translator: “When I am in Tel Aviv I am a Jew. When I am in Rame [a mixed town in Northern Israel] I am an Arab. When I am in Julis [a Druze village] I am a Druze” (p.152).
Hajjar goes to great lengths in her attempt to describe the Israeli-Arab conflict as a struggle for human rights generally associated with health, education, speech, association, and movement. This assertion, however, is not supported by Hajjar’s findings. Indeed, since 1967 most Palestinians have placed statehood aspirations above all other goals. As Hajjar herself observes, “tendencies across the region are to interpret the stakes of the conflict in zero-sum terms; Palestinian victory [*611] was envisioned as a thorough defeat of Israel and the creation of a Palestinian state in all of historic Palestine. Israeli political discourse also propounded zero-sum visions” (p.53).
Despite the several flaws one may find in Hajjar’s book, they by no means diminish its value. I found the book to be provocative and have been challenged to rethink the means by which law in general, and a legal system in particular, can be manipulated for political and national purposes. Hajjar portrays the Israeli military courts as a brute system of control that manipulates legal terms and procedure to achieve national goals. Indeed it is a dark and unfavorable picture, yet it faithfully serves as both reminder and a warning as to what can happen to a democratic society that is unable to bring an end to a long occupation of other people.
Dotan Yoav. 1999. “Judicial Rhetoric, Government Lawyers and Human Rights: The Case of the Israeli High Court of Justice during the Intifada.” 33 LAW & SOCIETY REVIEW 319-363.
Hofnung, Menachem. 1996. LAW DEMOCRACY AND NATIONAL SECURITY IN ISRAEL. Aldershot: Dartmouth Publishing Co.
Kretzmer, David. 2002. THE OCCUPATION OF JUSTICE: THE SUPREME COURT OF ISRAEL AND THE OCCUPIED TERRITORIES. Albany, NY: State University of New York Press.
Shamgar, Meir (ed.). 1982. MILITARY GOVERNMENT IN THE TERRITORIES ADMINISTERED BY ISRAEL, 1967-1980: THE LEGAL ASPECTS. Jerusalem: The Faculty of Law, The Harry Sacher Institute for Legislative Research and Comparative Law, The Hebrew University.
Shamir, Ronen. 1990. “Landmark Cases and the Reproduction of Legitimacy: The Case of Israel’s High Court of Justice.” 24 LAW & SOCIETY REVIEW 781-805.
Shehadeh, Raja. 1988. OCCUPIERS’ LAW — ISRAEL AND THE WEST BANK (rev. ed.) Washington D.C.: Institute for Palestinian Studies.
© Copyright 2005 by the author, Menachem Hofnung.