Savage Restraint: Israel, Palestine and the Dialectics of Legal Repression

The article examines the lethal responses by Israeli soldiers and police to Palestinian assailants in the West Bank and East Jerusalem since the start of the "Knife Intifada" in October 2015. It places these responses in the broader context of state violence against Palestinians, arguing that Israeli security personnel often address individual attacks, rioting, and even protest, as "combat" situations (or "hostilities" under International Humanitarian Law), rather than as law enforcement scenarios, and thereby wrongfully justify employing excessive force against Palestinians. The article suggests that Israeli soldiers and police often abandon or abuse the rules of engagement when it comes to policing Palestinians -- in ways that are unfathomable with regard to violent acts by the Jewish settler population in the same areas. What is more, the article asserts that despite the recent conviction of IDF Sergeant Elor Azaria for killing a previously incapacitated Palestinian assailant, such prosecutions are the rare exception to the rule. The resulting culture of virtual impunity enables the continued use of excessive force by Israeli law enforcement against Palestinians and the systematic violation of Israel's basic duty to protect the Palestinian population under occupation. On the eve of the 50th anniversary of the Israeli occupation of the Palestinian territories, the article asks whether any protracted occupation is bound to lead to a situation in which the occupying population’s security is prioritized over that of the occupied population, even within clear international legal norms.

The article analyzes the Israeli Military Justice system in the West Bank. It commences from its sources, in which legislative, executive and judiciary prerogatives are entrusted to the military. From this, the examination proceeds to investigate the substantive law of the system, emphasising its disparity in comparison with Israeli domestic law, and its draconian impact on the human rights of the Palestinian population. The analysis reveals radical incompatibilities not only with international legal standards, but – more profoundly – with the fundamental principles shaping liberal-democratic models of justice governed by the rule of law.

The Equilibrium, 2018

A sixteen-year-old boy was tried for throwing a Molotov cocktail in a military courtroom in the city of Ofer, Palestine. Throughout the trial, the boy sat in chains looking confused and out of place. As the trial progressed, he sat looking pleadingly at his mother who he has not seen in months. When asked how he pleaded, the boy's lawyers advised him to plead guilty. In a matter of minutes, the court condemned the boy to six months in an Israeli prison (Meekings, 2012). This scene has played out thousands of times in Israeli military courts like the one at Ofer. Palestinians, even as young as eight or nine years old, are prosecuted under martial law codes. Under this process, they are held for up to four days in order to see a military judge, and as many as ninety days before seeing a lawyer. Detainment can last indefinitely, continuing for as long as 188 days before the accused is charged or two years before the accused goes to trial (Meekings, 2012). Criminal court proceedings, normally held under civilian legal codes, are subsumed under the jurisdiction of martial law. As a report by the International Review of the Red Cross states, "There is in fact an invasion of the military legal system over civilian domains" in Israel and Palestine (Weil, 2007). Yet this form of legal application is not uniformly applied in all cases. The jurisdiction of martial law extends only to the Occupied Territories of Palestine, captured and occupied by Israel since 1967. This means that Israeli citizens who commit the same crimes are prosecuted under a completely different system, one that guarantees protected rights, like the right to a speedy trial, not found in martial law. Furthermore, the military courts are inherently biased because of its connection to the military apparatus in charge of keeping control in the Occupied Territories. Within this system there is "less independence and impartiality and [it] does not effectively safeguard the individual rights of accused persons and suspects" (Weil, 2007). It is surely the case that the use of martial law in the treatment of Palestinians is a central point in the Israeli-Palestinian Conflict. The unequal separation of legal systems and their applications create grievances among the Palestinians and compound the already delicate, and volatile balance in the Israeli-Palestinian relationship. Since its inception, the State of Israel faced challenges to its existence during the various wars in 1948, 1956-67, 1967 and 1973. From the Israeli perspective, it is easy to see why security and the need for a strong military presence are important. Yet after securing its survival and long after serious threats had receded, Israel still clings on to fears for its national security.This is evident in its continual use of martial law, which was adopted almost entirely from the British Defense (Emergency) Regulations of 1945. From 1948 to 1966, martial law was officially imposed on the Arab minority in Israel, but continues to be intermittently enforced to this day. The military government, in effect, imposed various restrictions on Palestinians. Palestinians were required to apply for permits to travel from area to area, regardless of destination. Security checkpoints were set up to enforce these permits. Those who disobeyed these regulations were jailed or fined. All petitions or requests for government services were directed to military courts instead of civil courts (Weil, 2007). By the end of 1973, serious threats to Israeli security had ended, since Israel was no longer engaged in defensive wars. Though widespread martial law had ended, the use of martial law was sporadically declared in the Occupied Territories during periods of Palestinian unrest or protest. The fact that the use of martial law continues today shows that martial law has become a tool for Israeli control of Palestinians.

Israel's Failure to Combat settler Violence in the occupied palestinian territory I n s t I t u t I o n a l I s e d

Israel Law Review, 2010

The language of morality and legality infuses every aspect of the Middle East conflict. From repeated assertions by officials that Israel has "the most moral army in the world" to justifications for specific military tactics and operations by reference to self-defense and proportionality, the public rhetoric is one of legal right and moral obligation. Less often heard are the voices of those on the ground whose daily experience is lived within the legal quagmire portrayed by their leaders in such uncompromising terms. This Article explores the opaque normative boundaries surrounding the actions of a specific group within the Israeli military, soldiers returning from duty in Hebron in the Occupied Palestinian Territories. By examining interviews with these soldiers by an Israeli NGO, it identifies different narratives of legality and illegality which inform their conduct, contrasting their failure to adhere to conventional legal discourses with the broader "legalization" of military activities. Seeking an explanation for this disjunction, it explores the ways in which the soldiers' stories nonetheless reflect attempts to negotiate various normative and legal realities. It places these within the legal landscape of the Occupied Palestinian Territories which has been normatively re-imagined by various forces in Israeli society, from the judicially-endorsed discourse of deterrence manifested in the day-today practices of brutality, intimidation and "demonstrating power," to the growing influence of nationalist-religious interpretations of self-defense and the misuse of post-modernist theory by the military establishment to "smooth out" the moral and legal urban architectures of occupation. The Article concludes by considering the hope for change evident in the very act of soldiers telling ethically-oriented stories about their selves, and in the existence of a movement willing to provide the space for such reflections in an attempt to confront Israeli society with the day-to-day experiences of the soldier in the Occupied Palestinian Territories.

Social Science Research Network, 2013

Commonly law is seen as an alternative to violence, although it relies on violence or its threat for enforcement. Through a study of Israel's campaign to transform international humanitarian law (IHL) by systematically violating it, this essay considers the possibility that violence precedes and even creates law. Israel has a long history of ad hoc ''legal entrepreneurialism,'' but its current effort, launched during the second intifada, is institutionalized, persistent, and internally coherent. The essay reviews the specific legal innovations Israel has sought to establish, all of which expand the scope of ''legitimate'' violence and its targets, contrary to IHL's fundamental purposes of limiting violence and protecting non-combatants from it. WHAT IS THE RELATIONSHIP between law and violence? Students of the role of law in society have pondered this question for decades. Prominent Yale legal scholar Robert Cover began a widely-read law review article a number of years ago with the striking introduction: ''Legal interpretation takes place in a field of pain and death.. .. Legal interpretive acts signal and occasion the imposition of violence upon others: A judge articulates her understanding of a text, and as a result, somebody loses his freedom, his property, his children, even his life.'' The article, entitled ''Violence and the Word,'' spurred renewed inquiry into the relationship between law, language, and violence, and underscored law's ultimate, though not always visible, reliance on force. 1 A later volume, inspired by Cover, was entitled ''Law's Violence,'' and expanded on this theme, considering the question of how violence done by and in the name of the law differs from illegal or extralegal violence-or, indeed, if they differ at all. 2 The relationship between law and violence has also figured prominently in anthropological definitions of law. According to E. Adamson Hoebel, an early and influential legal anthropologist, law was defined by the threat or GEORGE E. BISHARAT is a professor at UC Hastings College of the Law. The author would like to thank Rose Mishaan for her highly capable research assistance. Thanks are also due to Laura Nader, Mai Taha, and the Interdisciplinary Group at

Fordham Int'l LJ, 2002

While the focus in transitional justice literature is most often on functional or quasi-functional processes, this Article turns to the rather less explored path of dysfunctional transitions through the lens of the Israeli/Palestinian case. The stop and start nature of the "transition" from a conflict to the post-conflict process has reverted to a situation that the Israeli government has recently described as an 'armed conflict short of war." Against this backdrop, this Article provides insight into the role of law or its absence in transitioning conflict. As there are conflicting Israeli and Palestinian arguments regarding the legitimacy of Israeli occupation (i.e., as a belligerent-occupant or administrator), Part I provides a brief historical overview to clarify and contextualize the current debate. Part II provides an overview of the administrative and legal frameworks that govern the Occupied Territories. I then turn to look specifically at the applicability of international law, with specific reference to the 1949 Geneva Convention IV Relative to the Protection of Civilian Persons in Time of War ("Geneva Convention"), and evaluate some of the Israeli Supreme Court rulings with regard to the Occupied Territories. Part III provides a content analysis of the Oslo Accords and the accompanying agreements. Part IV addresses the question of where we go from here.

The Journal of Legal Pluralism and Unofficial Law , 2017

This article explores the relationship between human rights NGOs and state/military policies in the case of Israeli organisations operating in West Bank and Gaza. The article focuses on a period of fundamental change in Israel’s management of the West Bank and Gaza unfolding alongside the Al-Aqsa Intifada, a transition from a framework of policing to a framework informed by the logic of war. It argues that NGO litigation, in this case, aided broader legal/political shifts that drifted away from a human rights agenda. Based on the Israeli/Palestinian case, the article aims to contribute to scholarship critically reflecting on human rights NGOs’ position vis-à-vis the state and broader geo-political processes of change.

Just Security, 2023

Nathan Thrall's harrowing new book, A Day in the Life of Abed Salama: Anatomy of a Jerusalem Tragedy, illustrates the slow, enduring violence of decades of Israeli occupation through the lens of a singular tragedy. At the heart of the book is a fatal 2012 school bus accident in which Abed Salama's five-year-old son Milad and several other Palestinian children are killed at the outskirts of Jerusalem. As Thrall's telling makes clear, the accident could be labeled accidental in only a literal and immediate sense: no one intended, planned, or desired it. And yet, the conditions that made a rainy day deadly were far from accidental. It was not only weather, or individual decision-making, or bad driving that led to a fatal collision between Milad's school bus and a semitrailer truck. It was also poor infrastructure, undertrained drivers, a lack of regulation, and failed schools; a physical obstacle in the form of the Separation Barrier dictating where children attend school, play, and receive medical care; and that Israeli military and police forces are tasked primarily with protecting Israeli lives while the Palestinian Authority, in many parts of the West Bank, is prohibited from operating. Moreover, Palestinian life has become simultaneously globally less visible and locally more precarious in recent years: Palestinian national aspirations have been marginalized in regional and global politics even as Israeli settlers, supported by extreme right-wing governments, further expand their territorial control over the West Bank while terrorizing Palestinians. The story Thrall tells, with precision and compassion, is one of a normalized regime of state violence that impedes, reroutes, and structures Palestinian life every day. It is a regime comprised, framed, and regulated by and through law, even if Thrall doesn't frame it this way. It might seem inapt or even inappropriate to recall a decade-old tragedy as Israel besieges and bombs Gaza. Yet the story of five-year-old Milad Salama bears telling in this moment because his death was structured by the same mundane, slow violence that conditioned his, his father's, and millions of others' whole lives. It reveals how structural