Courting Conflict: The Israeli Military Court System in the West Bank and Gaza

2. Legal Discourses and the Conflict in Israel/Palestine

The Israeli state has made prodigious use of law to maintain and legitimize its rule over Palestinians in the West Bank and Gaza and to punish and thwart resistance. Three bodies of law have been particularly important : international humanitarian law (especially the Fourth Geneva Convention), the British Defense (Emergency) Regulations of 1945, and original Israeli military laws. Israeli domestic law also Wgures into an analysis of Israeli rule in the West Bank and Gaza because it was extended to annexed and appropriated areas and to citizens who have settled there. Opponents and critics of Israel’s occupation also have used law to contest and resist Israeli policies deleterious to Palestinians and to frame Palestinian aspirations and interests as rights claims. Indeed, it was Israel’s enthusiasm for law and the ornate legalism of oYcial discourse that catalyzed and propelled the development of a local human rights movement, which served as the harbinger of legalistic resistance. Because of the importance the Israeli state attaches to law and to its own image as law abiding, legal challenges and critiques could not be ignored; rather, they C h a p t e r 2 Legal Discourses and the ConXict in Israel/Palestine Law works in the world not just by the imposition of rules and punishments but also by its capacity to construct authoritative images of social relationships and actions, images [that] are symbolically powerful. Sally Engle Merry, Getting Justice and Getting Even1 49 50 LAW AND CONFLICT IN ISRAEL/PALESTINE provoked or necessitated reWnements, reforms, and defensive justiWcations for the state’s positions and policies. In this chapter, I present a social history of legal discourses and conXict in Israel/Palestine. I begin with the history of the military administration instituted by Israel in the West Bank and Gaza and the legal doctrines formulated to support state policies in these areas. I situate these developments within the broader context of the conXict to show how Jewish historical claims and Israeli political ambitions and national interests, as well as security contingencies, have informed oYcial legal discourse—what Israeli oYcials and supporters of the state could claim as “legal” and why. I then track the subsequent development of a counterdiscourse that criticizes and challenges the state’s interpretations and uses of law and the claims of legality of state policies and practices that harm the interests or infringe on the rights of Palestinians. The Wnal section focuses on the legal debates, policy developments, and litigation relating speciWcally to interrogation and torture. War, Conquest, and Control The 1967 war massively transformed the territorial and demographic maps of the Middle East and the political agendas of the various parties to the Arab-Israeli conXict. While there is no debate that the Israeli military launched the Wrst strikes in 1967, there is disagreement as to whether this was a “defensive” war to preempt an impending attack by Arab states2 or an “oVensive” war waged for the purpose of conquering additional territories. The oYcial Israeli position holds that the neighboring Arab regimes incited hostilities through incessant warmongering and preparations to attack3 and that Israel preempted the risk of a multifront assault by striking Wrst. A consideration of the history of the military administration in the West Bank and Gaza provides an interesting perspective on events and developments leading up to the 1967 war. The Israeli military court system was established on the third day of the Six Day War as one of the Wrst oYcial acts of the military administration.4 This timing is signiWcant because it suggests not only the primacy that Israel attaches to law but also a high degree of preparedness for war and occupation. Israeli preparations for military occupation began in the early 1960s, spurred by political instability in Jordan in 1963. These plans were informed by Israel’s brief experience of occupying Gaza during the 1956 invasion of Egypt by Israel, Britain, and France.5 The most extensive planning for occupation occurred under the direc- LEGAL DISCOURSES AND THE CONFLICT 51 tion of the Military Advocate General (MAG). Meir Shamgar, who served as the MAG from 1961 to 1968, provides an account of his unit’s activities in the years preceding the war.6 According to Shamgar, in the early 1960s he developed courses for oYcers of his unit through which they “carried out skeleton exercises in military government problems.”7 He also prepared a comprehensive Manual for the Military Advocate...