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Courting Justice? Legitimation in Lawyering under Israeli Occupation

Published online by Cambridge University Press:  27 December 2018

George E. Bisharat
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Abstract

Israel has since 1967 administered the West Bank and Gaza Strip through highly legalistic and strongly repressive military governments. Has advocacy in Israeli courts on behalf of Palestinian residents of the West Bank and Gaza Ship has legitimated, and thus helped to perpetuate, ongoing Israeli military occupation of those regions? By examining legitimation in lawyering under lsraeli occupation, insight can be gained into the factors and their relative weights that lawyers facing harsh or repressive regimes must consider in balancing the costs and benefits of litigation to serve a social or political opposition movement. The author concludes that the benefits outweigh the legitimating effects of lawyers' work and that, on balance, Palestinians' election to seek representation in Israeli courts, and lawyers' choice to assist them, has been justified.

Type
Symposium: Lawyering in Repressive States
Information
Law & Social Inquiry , Volume 20 , Issue 2 , Spring 1995 , pp. 349 - 405
Copyright
Copyright © American Bar Foundation, 1995 

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References

1 “Legitimation” involves “the attempt by those engaged in some realm of social activity to offer a normative justification for their actions.” Abel, “Why Does the ABA Promulgate Ethical Rules?” 59 Tex. L. Rev. 639, 686 (1981). Legitimation does not come about merely from an attempt to provide normative justification for some actions, of course, but only from some relevant audience's acceptance of that justification. While the identity of such audiences varies with circumstances, I have argued that, as a general matter, law in its legitimating function may be effective primarily among those near the centers of social and political power and that law's legitimating power diminishes steadily within increasingly marginal groups or classes in society. See George E. Bisharat, “Land, Law, and Legitimacy in Israel and the Occupied Territories,” 43 Am. U.L. Rev. 467 (1994), where I posited that the legal regime implemented to acquire Palestinian land in Israel and the Occupied Territories finessed the contradiction between the Zionist movement's foundational need to gain land for Jewish settlement and Israel's democratic ideology. The current article is, in a sense, a sequel to the first, inasmuch as it explores the manner in which Israel, by use of laws and legal institutions, rationalized and legitimated its suppression of native Palestinians' ensuing resistance to their loss of land and struggle to achieve sovereignty.Google Scholar

2 I use “legitimation effects” to mean the intended or unintended tendencies of a practice to legitimate something for an audience, and “legitimation costs” as the negative impact of these effects viewed from a particular party's perspective.Google Scholar

3 Hereinafter Bisharat, Palestinian Lawyers. The concern of that work was to explain the West Bank legal profession's decline and marginalization during the Israeli occupation, under conditions that would seem to have afforded it significant opportunities for advance. The study was based primarily on 14 months of field research in the mid-1980s, during which 1 conducted about 200 interviews of some 70 West Bank working and striking lawyers. I also interviewed 15 Israeli lawyers (both Jewish and Arab), judges, human rights workers, mayors, and a variety of other community leaders and others (including clients and defendants), and observed lawyers in various work environments, including civil, military, and religious court proceedings. I also interviewed a number of Gaza-based lawyers and community leaders.Google Scholar

4 The agreement, negotiated in Oslo, Norway, and signed in Washington, D.C., 13 Sept. 1993, is the “Declaration of Principles on Interim Self-Government Arrangements”; I refer to it variously as the “Declaration of Principles” or the “Oslo accords.”Google Scholar

5 In urging this conclusion I imply no criticism of lawyers either in the Occupied Territories or elsewhere in analogous situations who abstain hm legal practice or steer their caseloads away from political or “cause lawyering.” Politically oriented law practice in the Occupied Territories can be, among other things, personally agonizing, professionally stultifying, unremunerative, and even dangerous. Some Palestinian lawyers have been subjected to prosecution, administrative detention (imprisonment without charges or trial), or deportation. See Bisharat, Palestinian Lawyers 145–46; Michael Posner, An Examination of the Detention of Human Rights Workers and Lawyers from the West Bank and Gaza and Conditions of Detention at Ketziot (Lawyers Committee for Human Rights, 1988) (“Posner, Examination of Detention”). Eg., Raji Sourani, an attorney in the Gaza Strip, was arrested in 1985 and charged with membership in the Popular Front for the Liberation of Palestine (PFLP). Part of the evidence the military prosecutor apparently relied on in bringing charges was that Sourani had defended numerous PFLP members in the military courts. The charges were eventually dropped, but Sourani was nonetheless detained administratively for a further six months. Posner, Examination of Detention 59.Google Scholar

6 Hamas (“zeal” in Arabic but also the acronym for harakat al-muqawima al-islamiya, or “Movement for Islamic Resistance”) was founded prior to the Intifada, and Islamic Jihad during it. They both seek the establishment of an Islamic state in Palestine and oppose the existence of Israel. Both groups have substantial followings in the Occupied Territories, especially in the Gaza Strip. See Ziad Abu Amr, Islamic Fundamentalism in the West Bank and Gaza (1994).Google Scholar

7 The military government has undergone several formal transformations over the years, most notably with the resort in 1981 to what was termed “civil administration,” which amounted to little more than “an internal restructuring of the division of labor and powers within the Military Government.” D. Yahav, ed., Israel, the “Intifada and the Rule of Law 24 (1993) (“Yahav, Israel”). For more on these structural changes and their political context, see Bisharat, Palestinian Lawyers 50–56; see also id., “Attorneys for the People, Attorneys for the Land: Interests and Ideology among Palestinian Lawyers in the Israeli-Occupied Territories” (presented at Law & Society Association Annual Meeting, Chicago, May 1993) (“Bisharat, ‘Attorneys for the People’”); and J. Kuttab & R. Shehadeh, Civilian Administration in the Occupied West Bank (1980) (“Kuttab & Shehadeh, Civilian Administration”).Google Scholar

8 The Israeli government rejects the use of the term “Occupied Territories” in reference to the West Bank and the Gaza Strip, preferring instead the appellation “administered areas,” and has declared them to be no longer considered “enemy territories.” Still, its formal legal treatment of them—with the exception of Jerusalem, which it annexed and put under the jurisdiction of Israeli civilian law and courts—is as occupied territories under international law. See M. Shamgar, ed., Military Government in the Territories Administered by Israel 1967–1980: The Legal Aspects (1982) (“Shamgar, Military Government”). Israel also prefers the names “Judea and Samaria” to refer to the West Bank, as that term is claimed to grant legitimacy to the area's annexation in 1950 by Jordan (the “East Bank”).Google Scholar

9 There is, of course, an entirely different face to Israeli military government, the one experienced consistently by the Palestinians. From their perspective, the military government is, as I wrote in Palestinian Lawyers (at 47), “intrusive, omnipotent, capricious, and unpredictable except in its unrelenting hostility to Palestinian interests,” and its law merely another in the array of weapons wielded against the Palestinian national movement.Google Scholar

10 While lawyers and human rights workers in the Israeli Occupied Territories have suffered occasional repression, primarily in the form of administrative detention (see Posner, Examination of Detention), they have never been assassinated or imprisoned en masse as have lawyers in Haiti, Sri Lanka, and many other states. Palestinian human rights organizations, the first of which was established in the West Bank in 1979, have, by and large, been permitted to operate, publish, and distribute their works with relative freedom.Google Scholar

11 Proclamation No. 2: Proclamation on Law and Administration, Art. 3(a), 7 June 1967; English trans. in Shamgar, Military Government 450–51. This order pertains to the West Bank; an equivalent order was issued for the Gaza Strip.Google Scholar

12 These powers are authorized under a set of Defense Emergency Regulations enacted during the British Mandate, which Israel claims were never repealed. See Yahav, Israel 45–47. This claim is refuted by Martha Moffet, Perpetual Emergency: A Legal Analysis of Israel's Use of the British Defense (Emergency) Regulations, 1945, in rhe Occupied Territories (1989).Google Scholar

13 In the West Bank, Proclamation No. 3 (the Security Provisions Order, issued within days of the conquest of the region) outlined the military courts' constitution and laws of procedure and evidence and detailed substantive security offenses. An identical, though unnumbered, order was simultaneously issued for the Gaza Strip. In 1980, amendments to the original order were consolidated in Miiitary Order No. 378, excerpts of which are published in English in Shamgar, Mihay Government 476–88 (“Military Order No. 378”). This order, in turn, has been amended at least 50 times. See Amnesty International, The Militmy Justice System in the Occupied Territories: Detention, Interrogation, and Trial Procedures (July 1991, A1 Index: MDE 15/34/91) (“Amnesty, Military Justice System”); P. Hunt, Justice? The Military Court System in the Israeli-occupied Territories (1989) (“Hunt, Justice!”); Hadar, “The Military Courts,” in Shamgar, Military Government 171–216.Google Scholar

14 According to Israeli military sources, for 1988-93 alone, 83,321 Palestinians were tried in the military courts. Human Rights Watch/Middle East, Israel's lnterrogntion of Palestinians fim the Occupied Territories 2 (1994) (“Human Rights Watch”). In the first two and a half years of the uprising, 9,000 administrative detention orders were issued. D. Golan, “The Military Judicial System in the West Bank,”B'Tselem, Nov. 1989, at 6 (“Golan, ‘Military Judicial System’”). Over 2,000 homes have been demolished or sealed in the Occupied Territories, affecting perhaps 10 times that number of occupants. Lynn Welchman, A Thousand and One Homes: Israel's Demolition and Sealing of Houses in the Occupied Palestinian Territories (1993) (“Welchman, Thousand Homes”).Google Scholar

15 The Palestine Human Rights Information Center claimed that at least 74 Palestinians were killed by undercover Israeli units in the years 1988–91 (27 were alleged for 1992; 45 for 1993). See E. Zureik & A. Vitullo, Extrajudicial Killings: Israel's Latest War on the Intifada (1992). Israel admits to having undercover units in the Occupied Territories but claims that they operate within standard rules of engagement that bar shootings of nonresisting arrestees. U.S. Department of State, 1993 Human Rights Report: Occupied Territories Human Rights Practices (1994) (“U.S. Dep't of State, 1993 Human Rights Report”). In the aftermath of the Tel Aviv bus bombing causing 22 Israeli deaths in October 1994, the Israeli government announced a crackdown on the Islamic groups who claimed responsibility, in the process admitting that undercover units had long operated with “kill on sight” instructions for some activists. “Rabin OKs Killing of Hamas Chiefs,”Chicago Tribune, 24 Oct. 1994.Google Scholar

16 E.g., Yahav, Israel 16 (cited in note 7), states: “[T]he case in question involves a hostile population involved in a violent uprising against the Israeli military government and not a democratic state at peace. This being the case, if certain measures are considered ‘bad law’ when compared to legislation made during peacetime by civilian authorities it seems unlikely that any better law could have been found for the ‘hard case’ at issue.” See also Y. Singer, The Rule of Law in the Areas Administered by Israel (1981) (“Singer, Rule of Law”).Google Scholar

17 Whether the justifications for Israel's conduct in the Occupied Territories are valid goes well beyond the scope of this article.Google Scholar

18 I describe the smothering regulation of Palestinian life in the Occupied Territories as “overcontrol” in Palestinian Lawyers (cited in note 3).Google Scholar

19 A few lawyers practicing in the Occupied Territories represent Palestinian clients out of purely pecuniary interests. I have examined the social organization of cause lawyering within the Palestinian community in the Occupied Territories in greater depth in “Attorneys for the People” (cited in note 7). Moreover, some groups doing legal work in the Occupied Territories, such as the Association for Civil Rights in Israel, are committed to the preservation of personal liberties, not to support for Palestinian nationalism or any overtly political ideology.Google Scholar

20 From 1969–70 to 1986 the annual number of petitions increased from about 6 to 110. The total number for 1969–86 was 556. Ronen Shamir, “‘Landmark Cases’ and the Reproduction of Legitimacy: The Case of Israel's High Court of Justice,” 24 Law & Soc'y Rev. 781, 802. The extension of High Court jurisdiction to controversies arising in the Occupied Territories is discussed infra. Google Scholar

I do not treat advocacy on behalf of Palestinian interests in the local civil and religious court systems that predated Israeli occupation and still function intermittently and in considerably diminished form. On the civil and religious court systems in the West Bank and their problems since 1967, see my Palestinian Lawyers; J. Kuttab & R. Shehadeh, The West Bank and the RuIe of Law (1980) (“Kuttab & Shehadeh, West Bank”); International Commission of Jurists, The Civilian Judicial System in the West Bank and Gma: Present and Future (1994), and Hunt, P., “Some Aspects of Law and Practice in the Occupied Territories,” 2 J. Refugee Stud. 152 (1989). On recent use of Israeli civil courts to vindicate claims of Palestinians in the Occupied Territories, see infra note 199 and accompanying text.CrossRefGoogle Scholar

21 The Declaration of Principles (cited in note 4) provides for a Palestinian Interim Self-Government Authority to assume limited jurisdiction over the West Bank and Gaza Strip for a five-year transitional period, during which negotiations will occur on the regions' permanent status. Among the issues specifically excepted from the jurisdiction of the Palestinian authority are “Jerusalem, settlements, military locations, and Israelis.” The agreement between Israel and the PLO signed on 4 May 1994 on the Gaza Strip and Jericho area codifies even more clearly the limitations on the powers of the Palestinian Authority, e.g., clarifying for the first time that Palestinian courts-to-be will have no jurisdiction over any Israelis. While by its terms the 4 May agreement applies only to the named areas, its length (186 pages) and content suggests that it will be the template for the broader Interim Agreement that will define the powers exercised by the Palestinian Authority in the other areas from which the Israeli military withdraws. R. Shehadeh, “Questions of Jurisdiction: A Legal Analysis of the Gaza-Jericho Agreement,” 92 J. Palestine Stud. 18 (Summer 1994). Israeli and Palestinian human rights and legal workers foresee a continued need for their work both in the “autonomous” areas and elsewhere, despite uncertainties over the extent and character of the Israeli courts' jurisdiction there. See Peter Ford, “Rights Groups Explore New Roles in Palestinian Autonomy Areas,”Christian Sci. Monitor, 21 June 1994.Google Scholar

22 “Israelis Kill 2 Palestinian Militants during Manhunt,”Los Angeles Times, 3 Oct. 1993, at A7; “Israel to Continue Hunt for Violent Activists,”Fin. Times, 4 Oct. 1993, at 5; Peter Ford, “Israeli Army Stays on War Footing, Despite the Talks,”Christian Sci. Monitor, 1 April 1994. See also note 15.Google Scholar

23 Lawyers Committee for Human Rights, “Fou'ad Rashad Mahmoud Shnewra and Mohammed Faraj al Ghoul—Israeli Occupied Territories,”Lawyer to Lawyer Network, March 1994.Google Scholar

24 Human Rights Watch (cited in note 14). According to James Ron (personal comm., 7 Oct. 1994), consultant for Human Rights Watch and primary researcher for the recent report, about 400–600 Palestinians per month were interrogated September 1993-May 1994; thereafter the numbers dropped to about 200 per month. See also B'Tselem, Press Release: “One Year after the Signing of the Declaration of Principles” (13 Sept. 1994).Google Scholar

25 The Jerusalem-based Land and Water Establishment for Studies and Legal Services reported that between the signing of the Declaration of Principles and August 1994, Israel had confiscated or sealed off 20,000 acres in the West Bank and Gaza. Eyal Press, “Land or Peace,”Nation, 22/29 Aug. 1994, at 185.Google Scholar

26 See Shehadeh, 92 J. Palestine Stud. at 19.Google Scholar

27 It is evident, however, that while the Israeli military administration's tactics are little changed from the pre-Oslo accords period, the focus of Israeli repression has shifted away from secular nationalists to Oslo accords opponents, chiefly supporters of militant Islamic organizations that have expressed their rejection of the peace plan through indiscriminate, mass violence, killing 30 Israelis, mostly civilians, in one bloody week in October 1994. Other recent Israeli measures not directly related to political repression or security, such as land seizures, are not so focused, however. See generally Tami Bash & Shirly Eran, One Year after the Declaration of Principles: Bureacratic and Other Types of Harassment in the West Bank (Sept. 1994).Google Scholar

28 See, e.g., S. Scheingold, The Politics of Rights (1974).Google Scholar

29 S. Olson, Clients and Lawyers (1984); Bell, , “Serving Two Masters: Integration Ideals and Client Interests in School Desegregation Litigation,” 85 Yale L.J. 470 (1976); J. Handler, Social Movements and the Legal System (1978).CrossRefGoogle Scholar

30 G. Rosenberg, The Hollow Hope (1991).Google Scholar

31 Id. at 31; M. McCann, Taking Reform Seriously (1986).Google Scholar

32 The strike was initially declared to protest the annexation of Jerusalem, other changes in the local legal structure instituted by the occupation authorities, and the perceived illegality of Israeli occupation as a whole. The strike extended to the military courts and the local civil court system, leaving the local religious courts as the only potential sites for legal practice. The strike eventually received the official endorsement and financial backing of the Jordanian Lawyers' Union, of which West Bank practitioners had been members. For more on the strike, see Bisharat, Palestinian Lawyers 145–61 (cited at note 3).Google Scholar

33 Perhaps not all the concerns about litigation in the US. are well grounded empirically. One study of U.S. lawyers working for animal rights and for gender-based pay equity found that rather than succumbing to the “myth of rights,” they “deployed litigation and legal discourse resourcefully within the context of broad based movement campaigns”; McCann & Silverstein, “The ‘Lure of Litigation’ and Other Myths about Movement Lawyers in the United States” 45 (delivered at Law & Society Association annual meeting, Chicago, May 1993).Google Scholar

34 Do not assume that Iirigation in the courts of oppressive states is fruitless; an interesting point emerging from this symposium is the significantly variable records of the courts in South Africa (Ellmann), Argentina, and Brazil (Osiel). Nor is it necessarily the case that harsh regimes do not enjoy broad legitimacy. I speak only of tendencies and probabilities.Google Scholar

35 Narrow popularity may often have compelled a regime to use intimidation and force as basic to its rule. Of course, dependence on foreign support is not always a function of a government's narrow domestic political legitimacy. Indeed, Israel is highly dependent on foreign assistance (see infra note 159) but enjoys broad legitimacy among its Jewish Israeli citizens.Google Scholar

36 The extent of lawyers' participation in politics outside their profession is difficult to assess, as for most of the period of occupation, Palestinian political organizations have been forced underground. In the early years of occupation, a number of lawyers were prominent in organizing and heading community opposition to the Israeli presence, sometimes leading to deportation from the Occupied Territories. See Bisharat, Palestinian Lawyers 145. There is some evidence that lawyers participated in popular tribunals or committees established during the Intifada to try violators of the edicts of the Intifada organizers. Wing, , “Legal Decision Making during the Palestinian Intifada: Embryonic Self-Rule,” 18 Yale J. Int'l L. 95 (1993). Israeli authorities have certainly suspected some lawyers of being members of Palestinian resistance organizations. E.g., Fou'ad Shnewra and Mohammed El Ghoul, lawyers detained administratively in March 1994 and held until July, were suspected of being active in Islamic organizations. See supra note 23. Mohammed Abu Shabaan, a lawyer in Gaza, emerged after the Oslo accords as the leader of Yasser Arafat's Fatah faction in the region, before his assassination just days after the agreement was signed. Michael Parks, “Gunmen Assassinate Leader of Major Palestinian Faction in Gaza Strip,”Los Angeles Times, 22 Sept. 1993, at A8.Google Scholar

37 Of course, all litigation has tangible costs—money and human resources. On these costs in the Occupied Territories, see infra note 103 and accompanying text.Google Scholar

38 A superb effort in this vein is Stephen Ellmann's study of South Africa, In a Time of Trouble (1992) (“Ellmann, Time of Trouble”). There is a voluminous literature on the role law may play in legitimating the authority of the state or political system. For a useful review of this literature and an incisive critique of Weberian models of legitimation, see Alan Hyde, “The Concept of Legitimation in the Sociology of Law,” 1983 Wis. L. Rev. 379. But the writings in this area, beyond alerting us to the existence of the phenomenon of legitimation and its relations to law and legal institutions, tend to theorize so generally that they offer little guidance for the calculus 1 attempt here.Google Scholar

39 On these points, again, see Bisharat, Palestinian Lawyers 145–61.Google Scholar

40 “A Judicial System Where Even Kafka Would Be Lost: An Interview with Felicia Langer,” 77 J. Palestine Stud. 24, 24–25, 27 (1990).Google Scholar

41 E.g., a Gaza-based group established during the Intifada, Palestinian Lawyers for Human Rights, apparently began by providing legal services to Palestinian defendants in the military courts but, out of despair at achieving just results in Israeli courts, switched its focus to monitoring allegations of human rights abuses. Personal communication, Human Rights Watch consultant James Ron, 4 Oct. 1994. The Palestine Human Rights Information Center (PHRIC), founded in 1986, elected from the outset to engage only in monitoring activity and abstain from any form of intervention with Israeli authorities, including litigation. In part, this grew from the group's unwillingness to recognize that Israel was in any sense a legitimate authority in the Occupied Territories. Personal communication, Peter Lems, Director, PHRIC-International, 4 Oct. 1994.Google Scholar

42 E.g., a number of Palestinians facing deportation from the Occupied Territories declined to pursue remedies before the Israeli High Court, or ordered their petitions withdrawn, on learning that evidence would be kept secret (see infra, text accompanying note 95). One later stated in an interview that “they [Israelis] will say afterwards that the decision was made acording to the law. And I don't want to give them this chance.” Quoted in Telhami, , “The Palestinian Perception of the Human Rights Issue,” 13 Syracuse J. Int'l L. B Commerce 475 (1987).Google Scholar

43 B'Tselem, Violations of Human Rights in the Occupied Territories 1990–1991, at 7 (“B'Tselem, ‘Violations’”). For the first 20 years of occupation, the maximum punishment meted out by single-judge courts was five years. Military Order No. 378, Art. 50(c)(3), at 482 (cited in note 13). The increase to 10 years was one of many alterations to the structure and functions of the military courts adopted in response to the Intifada.Google Scholar

44 The courts were authorized to sit anywhere in the Occupied Territories. For most of the occupation, there have been two regularly sitting courts in each of the Gaza Strip (Gaza City and Khan Younis) and the West Bank (Ramallah and Nablus). During the Intifada, additional courts were activated in Hebron, Jenin, and Tulh in the West Bank. Golan, “Military Judicial System” (cited in note 14). Since the Oslo accords, a single Israeli military court has been sitting in the Gaza Strip, at the Erea checkpoint on the border with Israel.Google Scholar

45 Defendants were permitted to apply to the area commander to vacate a conviction or reduce a sentence. Art. 43, Military Order 378, Art. 43 (cited in note 13). In addition, while the Israeli High Court does not function as an appellate court for the military courts of the Occupied Territories, it may issue writs of certiorari against the judgments of those courts should they err grossly or exceed their powers. Yahav, Israel 98 (cited in note 7).Google Scholar

46 The court, which sits in Ramallah, in the West Bank, and until recently, for one day a week in Gaza, hears appeals of right from decisions of three-judge courts; defendants convicted in one-judge courts must petition for review. Amnesty, Military Justice System 16–17 (cited in note 13).Google Scholar

47 Some are Israeli civilian lawyers serving reserve duty with the Military Advocate General. However, only those sitting singly or as presidents of three-judge courts must be formally trained in law. The court of appeals sits in panels of either three or five, in which event two and three, respectively, must be legally trained. id. at 16.Google Scholar

48 Id. at 17. There is more than simple institutional proximity between military judges and prosecutors, as one such judge stated: “In the military courts, … the relations between the judge and the prosecutor are close, and sometimes only a thin wall divides the prosecutor's room from the judge's room…. Since the separation of powers is a basic principle of every legal system, its absence constitutes one of the essential reasons that the legal element in the territories is impure.” B'Tselem, “Violations” at 90.Google Scholar

49 See Military Order No. 172, Objections Committees Order, in Shamgar, Military Government 469–72 (cited in note 8); and Military Order No. 271, Claims Order, id. at 472–76.Google Scholar

50 A list of matters falling within the purview of the objections committees is given in R. Shehadeh, Occupier's Law 88–89 (Zd ed. 1988), and includes such matters as income or value-added tax assessments, pension rights of civil servants, customs duties, driving and busines licenses, and others. On the legal methods for Israel's acquisition of land in the Occupied Territories, see Bisharat, 43 Am. U.L. Rev. (cited in note 2), and infra, text accompanying note 62.Google Scholar

51 The requirement of review by a military judge of administrative detentions was instituted in the Occupied Territories in 1980, generally tracking changes in Israeli legislation applicable to administrative detention within Israel itself. Among other things, the 1980 military order required that a judge review detentions within 96 hours of arrest. In March 1988 the military government abrogated that requirement and directed appeals against detention orders to an advisory board of military officers and authorized only to make recommendations to the military government. In apparent response to public criticism, this order was quickly rescinded. In August 1989 another order lengthened the maximum period of detention from 6 to 12 months; in December of that year, the maximum was again fixed at 6 months. Detention orders may be renewed without limit. D. Golan, Detained without Trial, B'Tselem, at 10–11 (1992) (“Golan, Detained”).Google Scholar

52 Simon, D., “The Demolition of Homes in the Israeli Occupied Territories,” 19 Yale J. Int'l L. 1 (1994). These requirements were imposed by the Israeli High Court in a case brought by the Association of Civil Rights in Israel, the Israeli counterpart to the American Civil Liberties Union. Sealings of houses were permitted without notice in particularly urgent cases. Id. at 62. Another Israeli army home demolition practice has emerged only since 1992: the destruction of dwellings with heavy weaponry in operations to apprehend or kill wanted persons, a practice apparently adopted in response to the shooting deaths of several Israeli officers who were attempting to arrest Palestinian suspects. Needless to say, little notice is given in such cases. See B'Tselem, House Demolitions during Operations against Wanted Persons (1993).Google Scholar

53 However, a defendant is only entitled to court-appointed counsel in a trial for a “serious offense.” Military Order 400: Defence in Military Courts Order § 5, in Shamgar, Military Government 492–95 (cited in note 8). In practice, Palestinian defendants distrust appointed counsel and retain lawyers if they are to be represented at all, in part due to the fear that heavier fines will be imposed at sentencing to recoup the expense to the court of appointed counsel. Dugard, “Quaker East Jerusalem Legal Aid Center Program Evaluation” at 28–29 (Memorandum, 1992). The timing of the attachment of the right to counsel and actual access to imprisoned defendants are discussed infra. Google Scholar

54 Military legal proceedings are conducted primarily in Hebrew, although defendants are entitled to interpreters. The majority of lawyers from the Occupied Territories do not speak Hebrew and present their arguments to the court through translators. See Human Rights Watch at 252 (cited in note 14).Google Scholar

55 Lawyers I queried in Gaza on the topic said that it simply never occurred to them to strike like their West Bank counterparts. These responses undoubtedly had much to do with the fact that annexation of East Jerusalem, the administrative and judicial center of the West Bank under Jordanian rule, entailed significant structural transformations in the local civil court system, whereas in Gaza, no such changes were imposed. The civil courts of first instance in Jerusalem were replaced by Israeli courts, and the Court of Appeals was transferred to Ramallah, in the West Bank. See my Palestinian Lawyers 56–60 (cited in note 3). Lawyers in the West Bank were faced with the prospect of acquiescing with their feet, as it were, in the annexation of Jerusalem, had they appeared in the newly established Israeli courts or in the relocated Court of Appeals. Gaza lawyers faced no comparable quandary.Google Scholar

In both the Gaza Strip and the West Bank, lawyers working in the military courts have periodically resorted to short-term strikes of from one day to several months, especially in the Intifada's early years. See, e.g., Declaration of West Bank lawyers of refusal to handle cases related to the uprising, 8 Jan. 1988, 17 J. Palestine Stud. 180–81 (Spring 1988); Sherry, “Background Memorandum: Boycott of the Military Courts by West Bank and Israeli Lawyers” (Lawyers Committee for Human Rights, July 1989) (“Sherry, ‘Background Memorandum’”); International Commission of Jurists, Swedish Section, The Military Legal System in the Gaza Strip and the West Bank (1993) (“ICJ Swedish Section, Military Legal System”); and Rishmawi, , “The Lawyers Strike in Gaza,” 21 Centre for the Independence of ludges & Lawyers Bull. 23–25 (1988).Google Scholar

56 A civil court magistrate in Hebron held this order invalid in 1967 and refused to permit the appearance of an Israeli lawyer. His decision was reversed by the civil Court of Appeals, which broadly upheld the legislative authority of the military Area Commander. See Institute for Legislative Research & Comparative Law, Law and Courts in the Israel-held Areas (1970). It is in large part due to this decision that the civil court system in the West Bank never became a bastion for legal struggle against the occupation.Google Scholar

57 Nathan, “The Power of Supervision of the High Court of Justice over Military Government,” in Shamgar, Military Government 109–70 (cited in note 8) ('Nathan ‘Power of Supervision’“). The theory that the High Court exercises what is in effect personal jurisdiction over its government officials operating in the Occupied Territories is admittedly tenuous but, as a matter of policy, has never been challenged by state attorneys. For the moral and pragmatic reasons for this policy, see Negbi, “The Israeli Supreme Court and the Occupied Territories,” 27 Jerusalem Q. 33 (1983).Google Scholar

58 See Martin Edelman, Courts, Politics, and Culture in Israel (1994) (“Edelman, Courts”); and Daniel Elazar, ed., Constitutionalism: the Israeli and American Experiences (1990). However, quasi-constitutional adjudication has developed through the Knesset's piecemeal enactment of a series of Basic Laws that have the status of “primary legislation”—superior, in still to be adequately defined ways, to standard Knesset legislation. Edelman, Courts. Google Scholar

59 Edelman, Courts. The courts in Israel are second only to the military among state institutions in gaining the public's trust; in polls taken in 1987, 73% of Jewish Israelis had “a great deal of confidence” in the military, while 52% expressed the same trust in the courts. Only 4.9% gave this assessment of the government, and the highest percentage achieved by any single political party (Labor) was 12.6%. Palestinians living in Israel as citizens shared this view of courts, although to a lesser degree (39.6%). Simon, Landis, & Amir, , “Jewish and Arab Perceptions of Civil Rights in Israel,” 10 Stud. L., Politics, & Soc'y 245 (1990). These distributions were similar to other polls conducted at the same time and earler and are corroborated more recently by Zureik, Moughrabi, & Sacco, , “Perception of Legal Inequality in Deeply Divided Societies: The Case of Israel,” 25 Int'l J. Middle East Stud. 423 (1993).Google Scholar

60 Yahav, Israel 64–74 (cited in note 7), provides several examples in which Israeli administrative law has imposed tighter restrictions on the military government than those called for by international law.Google Scholar

61 This holding was reached in a celebrated dispute over the military government's requisitioning of land in the West Bank in 1978 for purposes of Israeli civilian settlement, the Beit El-Toubas case. See Bisharat, 43 Am U.L. Rev. (cited in note 1).Google Scholar

62 Unofficial English Translation of HCJ 606/78 and 610/78 (the Beit EL-Toubas case).Google Scholar

63 Cohen, “Justice for Occupied Territory? The Israeli High Court of Justice Paradigm,” 24 Colum. J. Transnat'l L. 471, 480–81 (1986).Google Scholar

64 Palestinian lawyers who reside in the annexed portions of Jerusalem are entitled to membership in the Israeli bar. Only in the past several years have a handful exercised this right. The lawyers' long reticence reflected their concern that joining the Israeli bar would acknowledge the permanency, if not the legitimacy, of the annexation of Jerusalem. See Bisharat, Palestinian lawyers 74.Google Scholar

65 Quoted in Sherry, “Background Memorandum” at 17 (cited in note 55). I recorded similar sentiments repeatedly during my field work in the region. Bisharat, Palestinian Lawyers 138–43 (cited in note 3).Google Scholar

66 Military Order No. 378, Art. 78(a), at 483 (cited in note 13).Google Scholar

67 The laws of procedure of the military courts do not explicitly provide for writs of habeas corpus, although a provision for “miscellaneous applications” allows in principle for release of a prisoner on the grounds that the arrest was illegal or unnecessary. However, such requests “appear to be invariably treated by the military courts as requests for release on bail. In practice, therefore, there is no habeas corpus remedy available to detainees in the Occupied Territories.” Amnesty, Military justice System 27 (cited in note 13). Soldiers are also empowered to perform searches of homes and institutions without a warrant, although authorization by an officer of the rank of lieutenant colonel is required prior to entry. Country Reports on Human Rights Practices for 1991, “Israel and the Occupied Territories”, U.S. Department of State, in 21 J. Palestine Stud. 114, 118 (1992) (“Country Reports”). Challenges to such searches and to any evidence they may uncover are almost nonexistent.CrossRefGoogle Scholar

68 Under pre-1992 law, suspects could be detained initially without warrant for 4 days, after a warrant from a police officer for a further 7 days, and after a second wamant from a police officer of higher rank for a final 7-day period. Military Order No. 378, Art. 78(c), (d), and (e), at 483. Many continue to be held for the full 18 day period. Human Rights Watch at 103 (cited in note 14).Google Scholar

69 Military Order No. 378, Art. 78(f). Human Rights Watch (at 104) describes the extension hearing as “a perfunctory affair, in which the judge almost always approves the interrogators' request for extending the detention, despite the absence of formal charges.”Google Scholar

70 Military Order No. 378, Art. 78(g).Google Scholar

71 The right to bail is assured in Military Order No. 378, Art. 79(a), at 484. Meaningful statistics on bail in the military mum are hard to come by, but attorneys assert that pretrial release is almost never granted. See, e.g., Sherry, “Background memorandum” at 26–28. According to B'Tselem monitors: “During our observations in court, it became clear that detention is perceived by all parties in the legal system as a means of punishment and that denial of release on bail is an accepted norm in the territories.” Golan, “Military Judicial System” at 33 (cited in note 14). The probability of release on bail was even further slimmed by procedures adopted temporarily during the Intifada that required only in camera review of written motions, with neither defendant nor defense attorney present. Id. Google Scholar

72 Sherry, “Background Memorandum” at 28–29.Google Scholar

73 Excerpts from the order, Military Order No. 1220 in the West Bank, appear as an appendix to Sherry, id. at 32–35, and form the basis for my discussion here. The requirement of notice to the attorney and next of kin was a response to lawyers' recurrent inability to locate clients among the various prisons and detention facilities maintained by Israel. This problem became particularly acute during the Intifada but existed at least by the mid-1980s, if not before.Google Scholar

74 Army directives issued in the wake of Military Order No. 1220 stipulated that detainees fill out postcards upon incarceration that would be sent to their families and that lists of detainees be posted in publicly accessible areas and updated daily. Sherry, “Background Memorandum” at 4–5.Google Scholar

75 Hicks, “A Continuing Cause for Concern: The Military Justice System of the Israeli-occupied Territories” 3–4 (Lawyers Committee for Human Rights, Feb. 1993) (“Hicks, ‘Continuing Cause’”).Google Scholar

76 According to a B'Tselem study, practitioners estimate that confessions are obtained in 80% or more of cases in the military courts. B'Tselem, “Violations” at 93 (cited in note 43). Reports I gathered in the field suggested that this estimate is conservative. In the words of the former chief military prosecutor in Gaza: “As someone who is very familiar with both sides of the story, as a prosecutor and a lawyer, I have difficulty remembering one person accused of terrorist actitivity who was acquitted. There are almost no such instances. Every person who is accused is found guilty. Sometimes on the basis of criteria which no Israeli court of law would accept. In 99% of the cases the accused come to court with a signed confession of guilt. That's suspicious.” Quoted in Sherry, “Background Memorandum” at 7.Google Scholar

77 The General Security Service, sometimes referred to by its Hebrew initials “Shin Beit,” is Israel's main domestic intelligence and security agency.Google Scholar

78 Amnesty International issued its first report on ill treatment of Palestinian detainees in Israeli prisons in 1970 and repeated its concerns about such allegations in its Annual Reports through the 1970s. In the late 1970s, a number of nongovernmental organizations, including the Swiss League for Human Rights, Pax Romana (an international association of Catholic jurists), and the American National Lawyers' Guild, publicized allegations of torture in the Occupied Territories. The London Sunday Times also published a widely read series on the controversy in 1977. See Amnesty International, Report and Recommendations of an Amnesty international Mission to the Government of the State of Israel (1979).Google Scholar

79 The move was precipitated by two major embarassments to the government. In the Nafsu case, it came to light that a Circassian officer of the GSS had been convicted of espionage on the bases of a coerced confession and perjured testimony by several of his fellow officers. In the Bus 300 incident, a Palestinian who participated in the hijacking of an Israeli civilian bus on the coastal highway was revealed to have been beaten to death after his apprehension at the direction of the head of the GSS, in the wake of government statements to the press that all the hijackers had perished in a gun battle.Google Scholar

80 The commission noted the difficulty investigators faced in obtaining intelligence and evidence to support convictions for charged offenses from a steadfastly uncooperative Palestinian population. Excerpts of the Landau Commission report were published in English in Jerusalem Post, 1 Nov. 1987.Google Scholar

81 E. Gordon, “Petition against GSS Rejected,”Jerusalem Post, 13 Aug. 1993. The petition was brought by an individual Palestinian, who alleged that he had been tortured in custody, and the Public Committee against Torture in Israel.Google Scholar

82 Human Rights Watch at x (cited in note 14). See also Amnesty International, Israel and the Occupied Territories: Fear of Torture or Ill-Treatment, March 1992; A1 Index: MDE 15/05/92, at 2–3; and U.S. Dep't of State, 1993 Human Rights Report (cited in note 15).Google Scholar

83 See, e.g., Ginbar & Bash, “The Death of Mustafa Barakat in the Interrogation Wing of the Tulkarm Prison,” B'Tselem, Sept. 1992. Another study by the Public Committee against Torture in Israel estimated that in the first three years of the Intifada, of 8,000 Palestinians interrogated by army or GSS agents, at least a quarter were subjected to “intensive methods” and that in 1988–89, 18 Palestinians died in detention, 5 from interrogation. Cohen, “Talking about Torture in Israel,” 6 Tikkun, Nov./Dec. 1991, at 23, 26. While such incidents have on occasion led to criminal prosecutions of responsible parties, punishments are typically light. Iyad Aql, 17, died after a punitive beating by members of the Givati Brigade of the IDF in February 1988. In 1989, one soldier was sentenced to two months' imprisonment and three others received suspended sentences up to five months. Amnesty, Military Justice System 46 (cited in note 13).Google Scholar

84 Human Rights Watch at 55. This trend is more evident in questionings performed by the GSS. Beatings, though less severe than before, are still the prevailing norm in IDF interrogations. Cf. Yuval Ginbar, The “New Procedure” in GSS Interrogations: The Case of ‘Abd A-Nasser ‘Ubeid (Nov. 1993).Google Scholar

85 There is some evidence that Israeli military judges are privy to the otherwise secret GSS guidelines for interrogation. E.g., use of such techniques as prolonged sleep deprivation and body position abuse has been openly admitted in court by GSS interrogators, without prompting the court to suppress the statements so gained. The inquiry of a trial observer into the admissiblity of such statements met with this cryptic response from a military court judge: “Some things are permitted, you know.” Human Rights Watch at 254.Google Scholar

The apparent inability of military court judges over 16 years to detect instances of coercive interrogation documented by the Landau Commission suggests that violations of current interrogation guidelines may also go undetected. Some judges may be simply indifferent to whether Palestinian detainees are physically abused. An Amnesty International observer witnessed a Palestinian youth being brought into the military court in Hebron displaying obvious injuries. The youth began shouting that a soldier seated in court had beaten him during arrest. The presiding judge told the youth that his tale was irrelevant and asked him if he wanted to get his case over with that day. The youth entered his guilty plea and was sentenced with no further ado. Amnesty, Military Justice System 69–70.Google Scholar

86 Id. at 68.Google Scholar

87 Hunt, Justice? 29–30 (cited in note 13). Under a 1979 amendment to the Israeli evidence code (which is followed in the military courts of the Occupied Territories), a conviction may be founded on an out-of-court statement of third parties, whether or not the declarant is brought to court or later recants. Amnesty, Military Justice System 68.Google Scholar

88 Quoted in Hicks, “Lawyers and the Military Justice System of the Israeli Occupied Territories” at 12 (Lawyers Committee for Human Rights, May 1992) (“Hicks, ‘Lawyers’”). Yahav, Israel 93 (cited in note 7), claims that during the Intifada, defendants refused en masse to plead guilty, compelling the military court to ny a far greater number of cases than ever before. This phenomenon was probably localized among detainees awaiting trial in one or two prisons but did not spread or persist beyond a brief period. In fact, it appears that Palestinian political organizations never developed a coordinated strategy or schooled their membership in how to handle decisions in their court cases, leaving them instead to their own devices.Google Scholar

89 It was apparently not unusual for prosecution wimesses to fail to appear for four or five trial settings. Most prosecution witnesses are Israeli soldiers, many of whom are reservists. Upon completion of their service, they return to their homes in Israel and thereafter refuse to travel to the Occupied Territories to testify. Sanctions, such as dismissal, were far less common than the court's offer of an “discounted” plea bargain. Golan, “Military Judicial System” at 31 (cited in note 13).Google Scholar

90 Hicks, “Lawyers” at 12.Google Scholar

91 Human Rights Watch at 2. Figures provided to the Israeli organization BTselem by the Israeli government showed that from the beginning of the uprising to November 1989, some 10,000 persons were convicted of charges of disturbing the peace, while 400 were acquitted of the same charge. B'Tselem, “Violations” at 53 (cited in note 43). Generally speaking, the military government has been less than forthcoming with consistent, reliable statistical data on the functioning the military court system. See Hicks, “Lawyers” at 12, and Hicks, “Continuing Cause” at 3 (cited in note 75).Google Scholar

92 Hicks, “Lawyers” at 14–15.Google Scholar

93 Id. Google Scholar

94 Golan, “Military Justice System” at 42 n. 15.Google Scholar

95 Golan, Detained (cited in note 51); Posner, Examination of Detention 9 (cited in note 5). However, Israeli military authorities claimed that in 1991, some 30% of appeals resulted in reductions or reversals of detention orders. Country Reports at 117 (cited in note 67).Google Scholar

96 E. Benvenisti, Legal Dualism: The Absorption of the Occupied Territories into Israel 45 (1991).Google Scholar

97 On the process of Israeli acquisition of Palestinian lands both in Israel and the Occupied Territories, see Bisharat, 43 Am. U. L. Rev. (cited in note 1).Google Scholar

98 Palestinian attorney Raja Shehadeh recounts a successful claim for negligence against an Israeli miiitary hospital in his review of Yahav's Israel, the “Intifada,” and the Rule of Law, “Apologia for Occupation,” 23 J. Patestine Stud. 104–7 (1994). He points to a different problem, however, relating that, eight years after the claim's grant, his client had yet to receive the award. This recalls repeated complaints I heard that the military government, while orderly and efficient in its deployment of repression, was lethargic at best in service to Palestinian needs. Moreover, there is a major problem of ineffective or nonenforcement of laws and court judgments, including even those of the High Court. Lawyers complain of a parallel failure of the military government to actually implement policies that it claims to have adopted—usually promised reforms. For an example of the latter, see supra notes 74 and 75 and accompanying text. For two examples of the military government's failure to abide by procedures mandated by High Court rulings, see infra notes 110 and 111. Numerous other examples could be cited.Google Scholar

99 For a number of years, Israel has permitted representatives of the International Red Cross to visit and examine detainees in the Occupied Territories after 14 days from their arrest. This access can be denied in exceptional circumstances. The global policy of the ICRC is not to publicize its findings but to report them confidentially to the host government. This policy was broken in 1992, when an ICRC press release revealed that the organization's numerous reports and recommendations to the Israeli government had been routinely ignored. Saul Friedman, “Israel Draws Rare Red Cross Rebuke,”Newsday, 22 May 1992. Complaints to the Israeli government were again made public by the ICRC in 1993. Associated Press, “Red Cross: Israel Denies Basic Rights,” 24 May 1993.Google Scholar

100 Langer, 77 J. Palestine Stud. at 35 (cited in note 40).Google Scholar

101 Hunt, Justice? at 17–18 (cited in note 13). Human Rights Watch at 105 (cited in note 14) reports that in extension of detention hearings (which differ from bail hearings), in practice often conducted in the absence of counsel and in small, nondescript rooms adjacent to interrogation centers, some detainees are unaware that they are not still being interrogated.Google Scholar

102 It is not clear why this is the case, although fear of the defense prevailing cannot be the explanation. It may be the use of time and manpower or reluctance that interrogation techniques be made public that causes military prosecutors' amenability to favorable plea terms at mini-trials. Human Rights Watch at 262–63. It suggests, though, that if there are always tangible costs to litigation for social movements (see note 103), tangible costs are also being imposed on the state, forcing it to recalculate its interests in the case. Lawyers, I submit, know better how to run up the state's meter than the unrepresented. In some, even many, cases this may result in the state's retreat from its original objective and effective protection for the claimant-defendant.Google Scholar

103 Lawyers' fees for representation in the military legal system in the mid-1980s ranged between 150 and 500 Jordanian dinars (about $U.S.450 to $U.S.1,500 at then prevailing exchange rates). These rates must be considered in relation to 1992 per capita incomes of $1,800 in the West Bank and $590 in the Gaza Strip. See CIA World Factbook (1992 ed.). During the late 1970s and early 1980s, families of defendants in the military courts were able to gain reimbursement for legal fees from a joint Jordanian-PLO committee distributing the “Steadfasmess Fund” established by the Arab states. An American Friends Service Committee legal aid office in East Jerusalem subsidized about 500–600 military court cases annually, for many years paying half the attorney's fee. During the Intifada, a number of groups, including the Gaza Bar Association, organized a pro bono service for military court defendants that alleviated expenses for at least some. ICJ Swedish Section, Military Legal System (cited in note 55). However, for most of the period of occupation, those Palestinian defendants who have retained counsel have paid lawyers from their own assets. The most politically active sectors of Palestinian society, and those suffering the most repression (in the form of arrests, administrative detentions, home demolitions and sealings—not to mention deaths and woundings) have tended to be the poorest. See, e.g., Kuttab, , “A Profile of the Stonethrowers,” 17 J. Palestine Stud. 14 (1988); and Zureik, Graff, & Ohan, “Two Years of the Intifada: A Statistical Profile of Palestinian Victims,” 12 Third World Q. 97 (1990–91). Lawyers' complaints over nonpayment were also not uncommon.CrossRefGoogle Scholar

104 Cohen, 24 Colum. J. Transnat'l L. (cited in note 63).Google Scholar

105 Simon, 19 Yale J. Jnt'l L. at 23 (cited in note 52).Google Scholar

106 Such petitions were filed when atypical notice was given, when a family member was accused of a grave offense and demolition seemed a likely sanction, or sometimes when soldiers appeared early to photograph or measure the home in preparation for its demolition. Welchman, Thousand Homes at 65 (cited in note 14).Google Scholar

107 Simon, 19 Yale J. Int'l L. at 31.Google Scholar

108 See id. and text accompanying note 52. However, exceptions were made for situations in which the army had “operational need” to establish security; sealings, as opposed to demolitions, can also be conducted summarily in some “urgent cases.” Welchman, Thousand Homes at 67–68.Google Scholar

109 According to the U.S. Department of State, the High Court has never overturned a deportation order. Country Reports at 116 (cited in note 67). This is at least technically inaccurate. In the one case in which an order was overturned, that of the summary deportations in 1980 of Hebron mayor Fahd Qawasmeh, Hebron religious leader Imam Rashid al-Tamimi, and Halhoul mayor Muhammad Melhem, the military government completely circumvented appeal procedures laid down in prior High Court rulings. Two of the three were allowed to return to the Occupied Territories, present their appeals, and then were again deported, this time permanently. The deportation of Tamimi, who was alleged to oppose the existence of Israel, was upheld under caselaw permitting the High Court to deny otherwise appropriate relief to enemies of the state. Cohen, 24 Colum. J. Transnat'l L. at 502.Google Scholar

110 Note, however, that in a number of instances documented by Gaza attorney Raji Sourani, the military government has simply bypassed the review procedures and demolished homes without notice, as of old. See Welchman, Thousand Homes at 67–68.Google Scholar

111 Id. at 71. Of 94 challenges to home demolitions to reach adjudication before the court by mid-1991, 91 were denied. Another 22 were settled prior to judgment. One was remanded for factual errots in the text of the written order. Another was reversed after a finding that the offender to be punished did not reside in the home to be demolished. In the last, the military government had sought to seal two rooms and the kitchen in a home inhabited by 23 persons; the High Court barred sealing of the kitchen only. Simon, 19 Yale J. Int'l L. at 53.Google Scholar

112 Since the accords, the Palestinian Center for the Study of Non-Violence has mounted a campaign to reopen previously sealed homes in parts of the Occupied Territories not under Palestinian jurisdiction, in defiance of Israeli authorities. Sarah Helm, “No Open Doors on Sealed Homes; Sarah Helm Reports from Ramallah on Israel's Policy of Punishing Palestinians by Denying Them Their Family Homes,”The Independent, 23 June 1994, at 16.Google Scholar

113 These cases, Jerusalem District Electricity Co. v. Minister of Energy (1979), El Asad v. Minister of Interior (1979). and Samara v. Regional Commmander of Judea & Samaria (1979), are discussed in Shamir, 24 Law & Soc'y Rev. (cited in note 20).Google Scholar

114 In Ibrahim sagidia v. Minister of Defense, HCJ 258/88, the petitioners had argued that transferral of prisoners out of the Occupied Territories to Israel violated international law. Posner, Examination of Detention 9 (cited in note 5).Google Scholar

115 In Sofan v. the Military Advocate General, described in Yahav, Israel 80–81 (cited in note 7).Google Scholar

116 Human Rights Watch at 107 (cited in note 14).Google Scholar

117 See supra note 62.Google Scholar

118 Unofficial Translation of Dweikat v. Government of Israel, HCJ 390/79.Google Scholar

119 These developments are examined in detail in Lustick, I., “Israel and the West Bank after Elon Moreh: The Mechanics of De Facto Annexation,” 35 Middle East J. 557 (1981).Google Scholar

120 This would not be so of the relatively small proportion of land purchased in the Occupied Territories by Israeli individuals and organizations. R. Shehadeh, Occupier's Law 39 (2d ed. 1988).Google Scholar

121 As noted above, settlements are among the matters specifically excepted from the jurisdiction of the Palestinian interim self-governing authority contemplated by the Declaration of Principles signed 13 Sept. 1993. See supra note 21.Google Scholar

122 One index of the necessity of litigation to the viability of direct interventions and appeals to public opinion is the virtually complete absence from these fields of activity of the striking lawyers.Google Scholar

123 See, e.g., Yahav, Israel (cited in note 7); Cohen, 24 Colum. J. Transnat'l L. (cited in note 63); and Negbi, , “On Occupation, Intifada, and ConStiNtiOnal Crisis in Israel,” 52 Jerusalem Q. 18 (1989). Yahav cites several examples in which the military government adopted measures favorable to residents of the Occupied Territories in anticipation of High Court litigation. The deterrent influence of the High Court is also acknowledged by Palestinian lawyers. See J. Kuttab, “Avenues Open for Defence of Human Rights in the Israeli Occupied Territories,” in E. Playfair, International Law in the Administration of Occupied Timiitories (1992) (“Kuttab, ‘Avenues’”).Google Scholar

124 The intervention may take the form of letter writing or personal meetings with officials from the military government department responsible for the action which gives rise to the complaint, or with members of the office of the Legal Advisor to the military govemment, or, on occasion, with officeholders in government ministries in Israel.Google Scholar

The rarity of striking lawyers' engagement in this type of lobbying for client's interests may reflect the laaers' unwillingness to entrust claims to attorneys who are unwilling or unable to pursue every possible path to relief, including litigation. Such work would also violate the spirit, if not the letter, of the strike—one rationale for which, it will be recalled, was to protest the overall illegality of Israeli occupation. See supra note 32.Google Scholar

125 All three of these factors were probably at work in the military government's occasional abandonment of plans to demolish homes in the period before that policy gained High Court approval. See supra note 112 and accompanying text, and Simon, 19 Yale J. Int'l L. (cited in note 52), who comments perceptively that exhibition of might is essential to the maintenance of the authority of a belligerent occupant within a hostile population, and argues that this, rather than deterrence, has been the primary force driving the Israeli policy of home demolitions.Google Scholar

126 Jonathan Kuttab, “Avenues” at 501 (cited in note 123), reports, e.g., that interventions of Palestinian human rights organization al-Haq on behalf of aggrieved Palestinians that were copied to international organizations received more prompt and positive results than other cases. Appeals to public media or to politicians, as opposed to administrators, however, bear the risk of foreclosing High Court litigation. In Mohamed Sa'id Burkan v. Minister of Finance, the High Court ruled “a petitioner seeking relief from this court is obliged to keep silent outside the courtroom, lest his recourse to the media be construed as an expression of no confidence in the court,” and further suggested that the petitioner's attorney be investigated for a violation of professional ethics due to his contacts with news media over the case. Quoted in Kenneth Kahn, “Israel Denies Muslim's Right to Live in Jerusalem's ‘Jewish Quarter,’“Washington Report on Middle East Affairs, July/Aug. 1993, at 90.Google Scholar

127 See supra notes 76–84 and accompanying text.Google Scholar

128 Among the local organizations in which lawyers have played seminal or supportive roles are al-Haq in the West Bank and the House of Right and Law and Palestinian Lawyers for Human Rights in Gaza. Virtually all the reports on torture in Israel by international groups have relied extensively on local lawyers for documentation of cases of abuse and for perspective on the handling of such cases in the military court system. For example, Human Rights Watch (cited in note 14) supplemented its own sample of 36 face-to-face interviews of persons alleging abuse during interrogations with five further interviews of then-incarcerated interrogatees conducted by their lawyers for its recent report.Google Scholar

129 See supra notes 83 and 84 and accompanying text.Google Scholar

130 For example, I gathered allegations of similar practices in the mid-1980s; see Bisharat, Palestinian Lawyers 139–40 (cited in note 3). Nor was I given to understand that the practices were new at the time.Google Scholar

131 Though I reemphasize: findings indicate that beatings, sometimes severe, continue to occur with some regularity. See Human Rights Watch at 65 (cited in note 14). The same report also records the emergence of one Palestinian from recent interrogation in an as-yet-irreversible catatonic state. Needless to say, the exact causes of the detainee's condition remain unknown.Google Scholar

132 As the recent Human Rights Watch report attests, the shift has not deflected international detection and criticism of Israeli interrogation practices.Google Scholar

133 Cf. Shamir, 24 Law & Soc'y Rev. at 783 (cited in note 20). In fact, only the first of these three audiences, the Palestinian community under occupation, even approaches homogeneity, at least in its stance vis-à-vis the occupation. One might refer more accurately to numerous subdivisions within the other two. E.g., meaningful distinctions might be drawn between the U.S. and European governments, between the U.S. government and the American public, and various of its constituent elements, such as Jews supportive of Israel, etc. Not all these subdivisions view Israeli policies in the Occupied Territories identically. The Israeli polity is also highly complex, and evolving, and its various political, social class, and ethnic subelements respond to occupation policies differently as well. I will at least point to some of these subaudiences infra. Google Scholar

134 See Hajjar, Lisa, “Zionist Politics and the Law: The Meaning of the Green Line,” 2 Arab Stud. J. 44–50 (1994). As to classes of citizenship in Israel, see also David Kreamer, The Legal Status of the Arabs in Israel (1990).Google Scholar

135 In the early years of occupation, as one administrator wrote, there was hope: “[T]o change the image of Israel in the Arabs' eyes, and we have accomplished quite a lot in this direction during the last four years. The inhabitants of the Territories now know what Israel is, as compared to what official Arab propaganda says. Israel wants to convince these residents that they have a very keen interest of their own in the continuation of coexistence.” Gazit, “Policy in the Administered Territories,” 1 Israel Y.B. Hum. Rts. 278, 281 (1971).Google Scholar

136 See supra note 3. On the other hand, Lisa Hajjar, conducting doctoral research in the Occupied Territories on the military courts in the early 1990s, suggests that some Palestinian defendants see the courts as relatively neutral fields of contest and blame their attorneys, rather than the military legal system as such, for the predictably unsatisfactory dispositions of their cases. Hajjar, personal comm., 21 Oct. 1994.Google Scholar

137 See supra note 44 and accompanying text.Google Scholar

138 The Intifada was a watershed event in the Occupied Territories in many respects, among them, in causing a marked increase in tensions between lawyers and judges in the military courts. One need not search far for the causes: the heightened tensions within the region as a whole were reflected immediately in the tremendous increase in arrests and crush of cases in the military courts. This, in turn, led to Israeli efforts to expedite the processing of cases, typically in ways that lawyers saw as jeopardizing their clients' already minimal rights. As previously mentioned, lawyers in both Gaza and the West Bank responded by declaring strikes against the courts, one, in 1989, persisting for two months. See supra note 55. On the impact of the Intifada on the military court system, see Yahav, Israel 92–99 (cited in note 7).Google Scholar

139 Only the very few practicing West Bank lawyers who harked back to the period of the British Mandate had memory of a more competent local judiciary. Those who had practiced then held fairly condescending views of the judiciary during the Jordanian era. Bisharat, Palestinian lawyers 24–29 (cited in note 3).Google Scholar

140 Of course, as the Israeli military government had assumed power over judicial appointments in the West Bank since 1967, the impoverishment (as it was perceived by local lawyers) of the Palestinian judiciary was itself laid at the doorstep of the Israeli officer in charge of the civil court system. This impoverishment, incidentally, had a literal aspect— judicial salaries were, for many years, so low as to invite corruption, the singlemost serious flaw noted in the local courts. See my Palestinian Lawyers 125–44, and Kuttab & Shehadeh, West Bank (cited in note 20).Google Scholar

141 Cf. Ellmann, Time of Trouble (cited in note 38), who argues that the preservation of the values of judicial independence and the rule of law by South African courts conferred benefits to the society that will be realized in the post-apartheid period.Google Scholar

142 An analogy to public defenders in the United States springs to mind here. See Blumberg, Arthur, “The Practice of Law as a Confidence Game: Organizational Cooptation of a Profession,” 1 Law & Soc'y Rev. 15 (1967).CrossRefGoogle Scholar

143 I am indebted to James Ron for pointing out the potential individualizing influence of lawyers' work in this context.Google Scholar

144 In my four-year practice as a public defender in San Francisco, CA, the fantasy of bringing the hall of justice to a grinding halt by trying every case was bandied about often among defense atorneys (usually the younger among us) as a means to discipline either judges or prosecutors who were behaving “unreasonably.” That intoxicating prospect, somehow, never got translated into action.Google Scholar

145 As to this I may be simply naive. The problem, of course, is that avowal of such coordination could well lead to charges against lawyers, even in the present. See supra note 5. The time may not be distant when this question can be better answered.Google Scholar

146 See supra note 113 and accompanying text; the reversal of the military requisitioning of land for Israeli settlement in the Elon Moreh case was also handed down in 1979. I am not aware of any single factor that explains the series of Palestinian victories in the High court.Google Scholar

147 Ronen Shamir, “Litigation as Consummatory Action: The Instrumental Paradigm Reconsidered,”in A. Sarat & S. Silbey, eds., 2 Studies in Law, Poltics, and Society 53 (1991) (“Shamir, ‘Litigation’“). This is corroborated by Kuttab, “Avenues” (cited in note 123).Google Scholar

148 In theory, the High Court treats the military government's legislation in the Occupied Territories as it does any of its other administrative acts—as subject to judicial review under the international laws of belligerent occupation and Israeli administrative law. See Nathan, “Power of Supervision” (cited in note 57). In practice, however, no legislative ace by the area commanders of the West Bank or Gaza Strip has ever been overturned by the High Court. Raja Shehadeh, “The Legislative Stages of Israeli Military Occupation,” in E. Playfair, ed., lnternational Law and the Administration of Occupied Territores (1992).Google Scholar

149 Shamir, “Litigation.”Google Scholar

150 It is suggestive that home demolitions, though far less frequent a sanction than, say, administrative detentions, have been the most often challenged measures in the High Court for a number of years. See Simon, 19 Yale J. Int'l L. (cited in note 52). In 1986, 22.8% of the petitions brought from the Occupied Territories involved home demolitions or sealings, followed by those against restrictions on personal movement (17.5%). Avishai Ehrlich, “‘Bagatzim’—Petitions to the High Court—a Statistical Portrait,”Israeli Democracy, May 1987.Google Scholar

151 While clearly the ethic of “not going down without a fight” is shared across many societies, Palestinian society (and Arab society generally) is one in which the ethos of honor is pronounced and in which willingness to undergo privation to preserve honor is especially venerated. On honor in Palestinian society see Palestinian Lawyers 37–39 (cited in note 3). A specifically nationalist overlay was given to this sentiment in the Occupied Territories, where sumud, or tenaciousness in remaining on the land against perceived Israeli pressures to leave, became the sacred duty of all Palestinians. Cf. James Scott, Weapons of the Weak: Everyday Forms of Peasant Resistance (1985).Google Scholar

152 Perhaps the willingness of military court judges to hear out Palestinian lawyers should be reevaluated in this light as well. Thomas Friedman records an anecdote involving Palestinian lawyer Raja Shehadeh, who, along with a number of other advocates, had gone to Jneid prison in the West Bank to challenge the administrative detention of their clients:Google Scholar

“The judge sat down,” recalled Shehadah [sic], “leaned back in his chair, and announced, ‘Who would like to speak?’Google Scholar

“I said, ‘What should I speak about? Where are the charges? Where is the evidence?’“He said, ‘It is a free place—speak abut whatever you want.’Google Scholar

“So first one lawyer stood up, then another, and another, and they each spoke about their clients,” Shehadah recalled. “There was no reaction from the judge, no court reporter taking anything down. We were just little children he wanted to please by letting us speak to our heart's content. … So we all spoke to our heart's content, and then the judge asked us to please leave the room. After a while, we were called back. All the prisoners were there … so he [the judge] ordered the fifteen prisoners to stand and then he announced, ‘I confirm the administrative detention order for all of you.’“Thomas Friedman, From Beirut to Jerusalem 352–54 (1989) (“Friedman, Beirut”).Google Scholar

153 See supra note 57 and accompanying text. Meir Shamgar, current President of the High Court, was, in his capacity at the time as Attorney General, the official most responsible for the decision to authorize High Court jurisdiction in the Occupied Territories. Among concerns for upholding the rule of law and protecting human rights, Shamgar saw the Court as “the best outlet for the bitterness of the occupied territories' inhabitants.” Cohen, 24 Colum. J. Transnat'l L. at 473 (cited in note 63). See also Negbi, 27 Jerusalem Q. 33 (cited in note 57). One is tempted to say this symbolic offering was cheap; recall, however, that it involved some fairly high risks and imposed some real limitations on the actions of the military government in the West Bank and Gaza Strip.Google Scholar

154 There were, no doubt, pragmatic calculations underlying the strike as well. At the time the strike was declared, no one in the Occupied Territories foresaw anything but a rapid return to Jordanian administration. Lawyers must have had some qualms about how appearances in Israeli courts would be received by the strongly Arab nationalist Jordanian Lawyers' Union (of which they were members) and by the Jordanian government. Indeed, the JLU and the regional Union of Arab Lawyers later expelled West Bank working lawyers from their ranks, although at the urging of the still-striking contingent. Palestinian Lawyers 145–49.Google Scholar

155 Zureik et al., 25 Int'l J. Middle Eat Stud. (cited in note 59), conclude similarly for Palestinians and the legal system in Israel itself.Google Scholar

156 Weiner, , “Terrorism: Israel's Legal Responses,” 14 Syracuse J. Int'l L. & Commerce 403–33 (1987).Google Scholar

157 See Singer, Rule of Law (cited in note 16). Yoel Singer was a lawyer working for rhe military government. As the preface by former Israeli High Court Justice Haim Cohen indicates, Singer's work is a direct response to an earlier critical volume by Palestinian lawyers Raja Shehadeh and Jonathan Kuttab. Military Government in the Territories Administered by Israel 1967–1980: The Legal Aspects, was edited by current President of the Israeli Supreme Court, Meir Shamgar. In his former capacity as the Military Advocate General, Shamgar was the principal architect of the military legal system in the Occupied Territories. A third work, Israel, the “Intifada” and the Rule of Law, was wriaen mostly in 1990, a period during which Israel's image abroad was suffering considerably due to its attempts to suppress the Intifada. The editor-in-chief, David Yahav, was a colonel in the IDF and a Deputy Military Advocate General.Google Scholar

158 Ball & Ball, The Passionate Attachment 282 (1992). Levels of aid in the years since 1991 have not diminished significantly: 7.8% of Israeli government annual expenditures ($38.6 billion) is covered by U.S. economic and military aid ($3 billion); the U.S. is also the largest holder of the Israeli government's $17 billion foreign debt. See CIA World Factbook (1993).Google Scholar

159 See John Goshko & Helen Dewar, “Israeli Loan Guarantees Appear Doomed; Bush Refuses to Drop Linkage to Freeze on Jewish Settlements,” Washington Post, 18 March 1992, at A1. The Clinton administration announced in October 1993 that it would cut aid to Israel earmarked to resettle immigrants from the Soviet Union by the amount spent by Israel on settlement activity in the Occupied Territories. David Horowitz, “Clinton Aid Cut Shocks Israelis,”Fin. Times, 7 Oct. 1993.Google Scholar

160 This is me not only in Israel's relations with the United States but also in its dealings with trading partners and others. E.g., in the early phase of the Intifada, the European Parliament voted to freeze scientific cooperation between EEC members and Israel as a result of the closure of West Bank universities. David Makovsky, “European Parliament Votes to Punish Israel,” jerusnlem Post, 21 Jan, 1990.Google Scholar

161 U.N. Security Council Resolution 242 of November 1967, contained in H. Cattan, Palestine and International Law (1973). The resolution was further reaffirmed in Oct. 1973, April 1975, May 1975, July 1975, Oct. 1975, May 1976, Nov. 1976, Nov. 1988, and Oct. 1990 (all calling, by unanimous or nearly unanimous decision, for the implementation of Resolution 242 (1967) in all of its parts); not to mention an equally lengthy chain of General Assembly resolutions.Google Scholar

162 F. Snyder, “State of Siege and the Rule of Law in Argentina: The Politics and Rhetoric of Vindication,” 15 Lawyer of the Americas 503, 519 (1984).Google Scholar

163 See, e.g., Shamgar, Military Government (cited in note 8); Yahav, Israel (cited in note 7); Israeli & Ehrenfeld, “Between the Peak and the Pit: Human Rights in Israel,” 13 Syracuse J. Int'l L. & Commerce 403–33 (1987); Weiner, 14 Syracuse J. Int'l L. & Commerce. Google Scholar

164 American public opinion has been fairly stable in its support for Israel since its creation in 1948. The first significant deviation from this pattern occurred with Israel's invasion of Lebanon, in 1982, which cast Israel for the first time among Americans as a clear aggressor. There was similarly a sharp drop in sympathy for Israel during the first years of the Intifada, when pluralities of Americans believed that Israel's response to the uprising was overly harsh. See Benjamin Page & Robert Shapiro, The Rational Public 251–61 (1992).Google Scholar

165 E.g., a mission of the International Commission of Jurists to the Occupied Territories in summer 1989 noted with approval the establishment of the appeals court. Jordan Paust, Gerhard Von Glahn, & Gunter Woratsch, “Report of the ICJ Mission of Inquiry into the Israeli Military Court System in the Occupied West Bank and Gaza,” 14 Hastings Int'l & Comp. L. Rev. 1 (Fall 1990).Google Scholar

166 The ICJ mission mentioned in note 166 visited the Occupied Territories just months after the establishment of the appeals court and thus was limited in its capacity to evaluate the court's impact. The mission, overall, was highly critical of Israel's administration of justice in the West Bank and Gaza Strip.Google Scholar

167 This is not meant to be pejorative; I am certain most Palestinians of the Occupied Territories are equally ignorant of everyday life among Jewish Israelis. The latter fact is simply not relevant here.Google Scholar

To cite an example: It was a revelation for many Israelis to discover that IDF soldiers had orders never to shoot at Jews in the Occupied Territories, a fact which came to light during the inquiry into the Hebron Mosque massacre. See Doug Struck, “Unprecedented Open Hebron Hearings Rivet Israelis,”Baltimore Sun, 10 April 1994. Meanwhile this fact, and many like it, are so much a part of Palestinians' experience as to be utterly unremarkable.Google Scholar

168 Edelman, Courts (cited in note 58).Google Scholar

169 Shamir, 24 Law & Soc'y Rev. at 795 (cited note 20).Google Scholar

170 Simon, 19 Yale J. Int'l L. at 6 (cited in note 52).Google Scholar

171 Id. at 8. According to another observer, preseht Israeli Prime Minister Rabin's standard reply to questions regarding human rights violations in the Occupied Territories is “It is all legal, everything is done according to the law.” Negbi, 52 Jerusalem Q. 18, 19 (cited in note 123).Google Scholar

172 Some of the more florid praise for the court in the Hebrew press following its decision in the Elon Moreh case is reproduced in Shamir, 24 Law & Soc'y Rev. at 795–96. Just one example he presents is Evron Boaz, writing in the Israeli daily Yediot Achronot:“The open-mindedness of the court proves that Israel is a ‘legitimate’ state which is governed according to constitutional principles.” See also Stendel, , “The Arabs of Israel: Between Hammer and Anvil,” 20 Israel Y.B. Hum. Rts. 287 (1991).Google Scholar

173 This same process is observable in a number of the reports delivered by Israeli commissions of inquiry, in which judges have often played leading roles, including the recent one investigating the Hebron Mosque massacre. See Struck, Baltimore Sun (cited in note 167).Google Scholar

174 Just as certainly, at least some decisions of the High Court, or sequence of decisions, had delegitimating effects among diverse groups within Israel. E.g., the Court's reversal of the military acquisition of land for settlement in the Elon Moreh case provoked the ire of the Israeli right, and resulted in calls for Knesset legislation to curtail High Court jurisdiction in the Occupied Territories. See Hajjar, 2 Arab Stud. J. (cited in note 134). Simon, 19 Yale J. Int'l L. (cited in note 52), argues that the morally indefensible jurisprudence of the High Court in the matter of home demolitions and sealings has also delegitimated the Court— obviously within an entirely different segment of the Israeli population.Google Scholar

175 Bisharat, 43 Am. U.L. Rev. (cited in note 2).Google Scholar

176 Simon, 19 Yale J. Int'l L. Cf. Shehadeh, 23 J. Palestine Stud. (cited in note 98).Google Scholar

177 Friedman, Beirut 354 (cited in note 152).Google Scholar

178 This is a slightly different point than I made in reference to the High Court's approval of military government policies. There, substantive measures received the blessings of the justices, arguably infusing occupation administrators with confidence in the moral rectitude, and international legality, of their acts. Military court judges, I am suggesting, were simply spared feelings of personal responsibility for enforcement of laws they may have acknowledged to be harsh, if not unjust. The value in both cases, however, stems from the need of groups exercising power to maintain internal cohesion and a sense of “mission” by providing normative justification for their acts—in other words, legitimating them—for themselves.Google Scholar

179 Friedman, Beirut 354.Google Scholar

180 B'Tselem, it will be recalled, was founded in 1988, several months after the outbreak of the uprising. The Association for Civil Rights in Israel, active within Israel itself, only expanded its mandate to include the Occupied Territories during the Intifada.Google Scholar

181 This is almost certainly true of the Israeli legal profession, which has been, with a few notable exceptions, and in contrast to its South African counterpart, almost entirely mute in the face of the military government's actions in the Occupied Territories. See Stanley Cohen, The Human Rights Movement in Israel and South Africa (1991).Google Scholar

182 This is untrue only of Palestinians appealing administrative sanctions before the military courts or objections committees. They, in theory, could choose to suffer these sanctions without mounting a defense.Google Scholar

183 This was evidently the judgment of at least some practicing lawyers. Recall the first sentences of the remarks by Felicia Langer I quoted in text at note 40 supra. Google Scholar

184 As a practical matter, the happy medium for many Palestinian clients has been the hiring of Israeli Arab lawyers, many of whom combine the desirable professional attributes of their Jewish Israeli counterparts with the cultural outlook and political sentiments of their clientele. Bisharat, Palestinian Lawyers 92–94 (cited in note 3).Google Scholar

185 Do not assume, however, that the same funds would necessarily be available to support other forms of political activity. A wealthy landowner, e.g., might spend liberally to contest a land expropriation decree but would not contribute those same funds to a political party or movement. To the extent that such cases became a part of the struggle against occupation, litigation may have drawn social groups and resources into that struggle which would not otherwise have been part of it.Google Scholar

186 I multiplied an estimated average attorney's fee for military court cases by 40,000, somewhat less than half of the 83,321 defendants IDF figures establish to have been tried in this period. I have never seen figures as to the percentage of Palestinian defendants who are unrepresented. My assumption of fewer than half is, I believe, somewhat conservative.Google Scholar

Although High Court litigation can be considerably more costly, the absolute number of High Court cases arising in the Occupied Territories is so much lower than the numbers of military court cases that their costs in aggregate are certainly far lower.Google Scholar

187 A 1992 memorandum to members of an international project for the study of ucause lawyering” by Austin Sam and Stuart Scheingold states: “As we see it, cause lawyering entails a self-conscious choice to give priority to caw rather than to client service, as such. Of course, serving causes and serving clients are not necessarily mutually exclusive although there are well-recognized tensions between them—with both ethical and organizational implications. Indeed, it is largely these tensions that provide the problematic on which the project on cause lawyering rests.”Google Scholar

188 Striking lawyers I interviewed, e.g., had no criticisms of the Jewish or Arab lawyers from Israel who worked in the military courts, thereby helping to keep these institutions running.Google Scholar

189 I cannot reconstruct all the reasons other groups failed to engage in strikes. The most likely is that lawyers had resources, including money and support from a fairly powerful institution outside the Occupied Territories—the Jordanian Lawyers' Union—that other occupational groups lacked.Google Scholar

190 See supra note 32. By no means was the breakdown of working and striking new graduates simply between the capable and the less capable, however. Financial need, family connections with established members of the profession, and a number of other factors were significant in determining individuals' choices.Google Scholar

191 This was not true of all the striking lawyers, a small minority of whom continued to practice in the Islamic and Christian religious courts in the region. These courts, for a variety of reasons, offered but a peripheral arena for the performance of lawyerly work.Google Scholar

192 The striking faction tried to address this problem by staging public defenses of a “thesis”—a new requirement for passage from apprenticeship to “master” lawyer status among the strikers, adopted because “masters” who were not practicing offered little in the way of training to their apprentices. The one I attended in the strikers' headquarters in Beit Hanina had a distinctly wistful air.Google Scholar

193 There was a point at which payment of the stipend, though still funneled through the Jordanian Lawyers' Union, was assumed by the Jordanian-Palestinian Joint Committee distributing the “Steadfasmess Funds.” The amwaal as-sumud were established by the Arab states in 1978 to support the Palestinian communities under occupation. Still later, the number of stipends given to the strikers was fixed, after which point new law graduates queued for their receipt. Bisharat, Palestinian Lawyers 156 (cited in note 3).Google Scholar

194 I review the history of the local profession and the implications of its status as a profession imposed through colonialism in id. at 18–30.Google Scholar

195 This critique is limited to long-term strikes or other kinds of withdrawal from practice by the legal profession. While the numerous short-term strikes called by working lawyers in the Occupied Territories—ranging from one day to, in one instance during the Intifada, two months—have also not, to my knowledge, achieved meaningful reforms in the military court system; they have also had nothing of the ruinous impact of the long-term boycott.Google Scholar

196 Ellman, Time of Trouble (cited in note 38) and this Symposium.Google Scholar

197 See Crystal, Jill, “The Human Rights Movement in the Arab World,” 16 Hum. Rts. Q. 435 (1994).CrossRefGoogle Scholar

198 John Immanuel, “Palestinian Shot by IDF Undercover Unit Awarded NIS 165,000,”Jerusalem Post, 6 Nov. 1992.Google Scholar

199 The suit was initiated by lawyers with the Center for Constitutional Rights in New York. Holly Knaus & Julie Gozan. “Takiig Tear Gas to Trial,”Muldnat'l Monitor, Jan./Feb. 1993. Palestinian lawyers in the Occupied Territories have assisted in locating potential plaintiffs and documenting claims.Google Scholar

200 Peter Ford, “Palestinian Police Probed after Death of Beaten Detainee,”Christian Sci. Monitor, 11 July 1994, at 3; Agence France Presse, “Rights Group Protests Ban on Gaza Meetings,” 29 Sept. 1994, and “Rights Group Protests New Political Restrictions in Gaza,” 6 Oct. 1994.Google Scholar

201 al-Haq, known in English until the mid-1980s as “Law in the Service of Man” (a direct translation of the Arabic al-Qanun min ajl al-Insaan; insaan or “person” in Arabic, has no gender reference), sponsored a four-day conference in Toronto in mid-1994 on “Women, Justice, and Law: Towards the Empowerment of Palestinian Women.”“Palestinian Women Begin to Fight for Rights,”Totonto Star, 29 Oct. 1994.Google Scholar

202 E.g., Raja Shehadeh, perhaps the best-known Palestinian advocate for human rights outside the region, has become affiliated with the independent human rights commission established at the initiative of Dr. Hanan Ashrawi (the Palestinian spokesperson for the Madrid peace talks).Google Scholar