Over a month ago now, we published Peter Strauss' commentary on the Military Justice system of the West Bank. This article by Rebecca Lewis is a formal reply.
As a pluralist youth movement, FZY rightly embraces a diverse range of opinions and perspectives. In this context, I believe it was very important for Peter Strauss’ article on Israel’s military courts to have been published by the Young Zionist. However, it is exactly because FZY embraces such diversity that it is equally important for an alternative perspective to be heard.
The image of blind lady justice sternly instituting justice in the West Bank is a truly admirable vision: but it is an unrealistic vision which purposefully ignores crucial realities.
The most important thing to immediately understand is why certain actions committed by Palestinians in the West Bank are tried in a military court. The answer lies in the nature of Israel’s presence in the West Bank; a belligerent occupation, governed under international law in accordance with Article 43 of the Hague IV Regulations. Under this article, an occupying power must ‘take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.’ To this effect, Israel in the course of its long occupation of the West Bank, has instituted a system of military orders that attempts to keep the peace.
Were Israel to apply its own system of laws to the occupied territory, this would constitute a de facto annexation of the territory, contrary to international law, and in particular, the Fourth Geneva Convention. Specifically, Article 64 of the Fourth Geneva Convention outlines that ‘the penal laws of the occupied territory shall remain in force, with the exception that they may be repealed or suspended by the Occupying Power in cases where they constitute a threat to its security or an obstacle to the application of the present Convention.’ For the most part, Israel has abided by this article, upholding and amending the previous Jordanian regime of laws, except in certain matters mainly relating to security.
Herein lies the central problem with the original article. In it, Peter ralies against the perceived injustice of Israel’s military court system in the West Bank, against the ‘two-tier legal system’, essentially concluding that justice can only be served if Israel unilaterally applies its laws to the entire territory between the river Jordan and the Mediterranean Sea. But not only would such an act be contrary to international law, such de facto annexation would also totally derail the peace process, wrecking any chances of a future Palestinian State.
In sum, with respect to the conclusions of his heartfelt article, we must recognise that Israel faces a choice: does Israel keep the military court regime in accordance with the international conventions which govern its occupation of the West Bank, or does Israel unilaterally apply Israeli law to the territory, and violate international law (and end the peace process) in doing so?
Aside from misunderstanding the legal context of Israel’s military courts, Peter’s article makes no mention at all of the Oslo Accords. This pivotal agreement has, since 1993, granted the Palestinian Authority full civil autonomy over areas in the West Bank. Such civil autonomy includes independent civil and criminal courts. The vast majority of Palestinians are subject to the authority of these courts, and in a criminal context, sentenced by them.
Contrary to the picture depicted in the initial article, Israeli military courts do not control every aspect of the lives of ordinary Palestinians, and they do not arbitrarily sentence Palestinians for all manner of reasons. If a Palestinian commits bank fraud, for example, or steals from a grocery, or commits any petty crime of this sort, they are subject to the jurisdiction of the Palestinian court. In contrast, when Israel’s system of military orders is engaged – for instance, if a Molotov cocktail is thrown at an Israeli soldier – and Israel’s role as the occupying power keeping the peace is at risk, then, and only then, are Israel’s military courts involved.
Are military courts an institution to be celebrated? Such a question need not be answered, and anyone with a shred of humanity will feel uncomfortable and perturbed by the idea of a court dictated by martial law. And yet, despite all the feelings we may have, we have to understand the realities we face, and the reasons for those realities. So long as Israel remains in the territories, it will have to continue to abide by its obligations as an occupying power under international law, which includes upholding the current legal regime in the West Bank, no matter how uncomfortable it is for us.
It is in this situation that we need to ask a related, and fundamental question: how is it that Israel still remains in the West Bank, over fifty years since 1967? Despite repeated offers of statehood to the Palestinian leadership, Israel’s attempts to materialise a two-state solution have been consistently and undeniably rebuffed by rejectionist Palestinian nationalism.
On a final note there is a great irony in the metaphor of blind justice. Far from being blind, modern justice systems are open and transparent, scrutinised and visible to members of the public. This includes Israel’s military court system, which Peter himself acknowledged in his article.
Set against this background, we absolutely should strive for improvement, and we should identify flaws in the current system in the West Bank. But equally, we should not degrade the system in place to the point that we compare it to systems which are not democratic in nature, and do not adhere to the rule of law. One could look at Iran where members of the LGBT community are hung, North Korea where people are sentenced to slave labour, or even the Palestinian Authority where a man was recently beaten and tortured for converting to Judaism; if we are to decry any systems of justice, surely we should start with those.