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The Israeli occupation of the West Bank and Gaza is the longest military occupation in modern times. According to the oYcial Israeli narrative, the military administration, established in 1967 to govern Palestinians in the occupied territories, has exercised its powers legally and acted reasonably and with relative restraint under the circumstances of enduring conXict (see Chapter 2). Indeed, Israel’s use of law, rather than resorting exclusively to force, is a core component of this narrative of legitimacy and restraint.1 However, the legality of military and emergency laws, the means by which they are enforced through the military court system, and the availability of legal justice are heavily disputed. Even some Israeli oYcers who serve in the military administration do not unanimously concur with or uncritically accept the oYcial narrative. This chapter focuses on military court judges and prosecutors. The central aims are to analyze their legal roles and practices and to explore variations in their perspectives on the functioning of the military court system and the legitimacy of Israeli military rule over Palestinians in the West Bank and Gaza. Few published studies about the military court system analyze the judiciary and the prosecution at all, and those that do tend to discuss them as homologous subsets of actors, conXating them with the state that they C h a p t e r 4 The Face and Arms of Military Justice Judges and Prosecutors Military justice is to justice what military music is to music. A quote attributed to Georges Clemenceau during the Dreyfus trial 96 represent. To some extent such generalizations are valid because the roles that judges and prosecutors fulWll demand a fairly high level of conformity and because they serve in the same military unit of the Israel Defense Forces (IDF; see Appendix). Moreover, the people who fulWll these roles have much in common. Almost all judges and prosecutors are Jewish Israeli lawyers, most are male, and many are Ashkenazi sabras (born in-country of European descent). Most of the judges and prosecutors I interviewed identiWed themselves as “centrists,” “liberals,” or “leftists ” within the ideologico-political spectrum of Jewish Israeli society.2 But the commonalities belie diVerences in the ways individuals understand what they do and why, and their perceptions of the nature and purpose of the military court system. These diVerences illustrate the parameters of consensus and dissent within Jewish Israeli society regarding Israeli control over the West Bank and Gaza and the national interests being served or compromised by its continuation.3 Ethnographic analysis of the roles and practices of state agents provides a means of exploring the gaps between oYcial discourse, what Allen Feldman refers to as “the Archimedean point of the authorizing center,” and the views of those who exercise the state’s authority “in the sites of instantiation.”4 These gaps are not incidental or anomalous; rather, they serve an important purpose, what organizational sociologists refer to as an “organizational decoupling,” which enables institutions (in this case the military court system) “to maintain standardized, legitimating, formal structures while [participants’] activities vary in response to practical considerations .”5 The practical considerations that bear upon the roles and practices of judges and prosecutors encompass changing dynamics of the Israeli-Palestinian conXict and matters speciWc to the courts’ functioning as a legal institution. But judges’ and prosecutors’ personal experiences and political views also bear upon their participation in the court system, and some hold views that deviate from the “oYcial story.” In principle, the role that judges fulWll distinguishes them from prosecutors , police, members of the security services, and all other state agents. Judges are obliged to act impartially and to ensure the fair enforcement of the law.6 They represent, in short, the “legal face” of Israeli rule in the West Bank and Gaza.7 In practice, some judges regard their role as complementary to the role of prosecutors and tend to Wll it accordingly; they emphasize the need for close coordination of military and legal measures to maintain Israeli security, order, and control. Others are motivated by the requirements of judicial independence and demonstrate this by maintaining a degree of distance from the prosecution and THE FACE AND ARMS OF MILITARY JUSTICE 97 (judicial) skepticism toward prosecution evidence. As high-ranking military oYcers, they are no less concerned about security, order, or control than prosecutors, but they see their Wrst duty as judges to be impartial. For prosecutors, a diVerent set of professional norms and standards applies. Their primary concern is conviction...


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