Judges as Defendants, Directors as Judges

This time, it seems, justice has won: The West Bank settlement outpost of Migron must be demolished. So ruled the Israeli Supreme Court this week.

Migron is the best known of the outposts, small settlements set up across the West Bank since the '90s with the help of Israeli government agencies—but without the government approval required under Israeli law since official approval would drawn too much publicity. The outpost stands entirely on privately owned Palestinian property. The landowners, with the help of Israel's Peace Now movement, went to court in 2006. In this week's decision, the court rejected a government proposal to put off evacuating the settlers for three years until new homes could be built for them elsewhere. The ruling blasts the proposal as "egregiously unreasonable" in light of the "grievous and ongoing harm to the rule of law."

Prima facie, the court upheld the rights of Palestinians over the government's fear of enforcing the law against settlers. The Israeli judiciary reined in the executive; the system worked.

Or did it? Certainly court approval of the government's proposal would have been much worse. Yet perhaps the ruling should be seen as part of a wider picture in which the Israeli courts have permitted greater injustices in the occupied territories. Perhaps an occasional Supreme Court ruling against government actions legitimizes the occupation before the Israeli public by making it seem subject to judicial oversight. Perhaps the word "justice" is hollow in the context of "occupation." Those are questions that one can't help asking after seeing the superbly disturbing new Israeli documentary, The Law In These Parts {link: http://www.thelawfilm.com/eng}, an indictment of the legal system Israel created in the West Bank.

Actually, the film is not just an indictment. It is very deliberately framed as the case for the prosecution against the military justice system, and against Supreme Court review of that system, in the land under Israeli military rule. The Law In These Parts opens with men assembling a desk in a film studio. Former members of the Israeli military's legal corps—including Meir Shamgar, who went on to become chief justice of the Israeli Supreme Court—sit at the desk and answer questions from the unseen narrator-interviewer, Ra'anan Alexandrowicz, who is also the director. The wall behind them is a screen that shows documentary footage.

Alexandrowicz begins by raising the question of whether a documentary objectively portrays reality—a question that he explicitly links throughout the film with the question of whether courts objectively determine truth. The ageing ex-judges, it becomes clear, are now defendants.

The narrator comments in a dry voice that he has not presented all the evidence. If this makes you uncomfortable, you should be all the more uncomfortable that Palestinians in occupied territory can be imprisoned under administrative orders if military authorities believe they endanger public order—and that the judges who review the orders see only the secret evidence presented by Israel's security services. Lawyers for the detainees remain in the dark, on the grounds that revealing the evidence in court would endanger the sources—usually informers. The evidence presented to the judges, like the film we are watching, does not tell the whole story. This is a brilliantly unsettling gambit by the director—and a reminder that the viewer should leave the movie with questions, not verdicts.

It was Shamgar who set the policy that residents of occupied territory could challenge government actions before Israel's Supreme Court. As the narrator notes, this went beyond the requirements of international law. Judicial review of military measures taken outside the country's borders may be unique to Israel. A 1979 decision seemed to demonstrate how enlightened the policy was: The Supreme Court overturned a decision by Menachem Begin's government to requisition private Palestinian property for a new settlement. The whole settlement enterprise appeared stymied for lack of land.

Alexander Ramati, a former military lawyer, describes the next chapter: In a meeting called by Ariel Sharon, then in charge of settlement policy, Ramati proposed exploiting an Ottoman-era law to declare that uncultivated rural land belonged to the state, and then using it for settlement. That led to another suit filed by Palestinian farmers, arguing that an occupying power could not establish settlements on public property in occupied territory. Justice Shamgar wrote the decision rejecting that suit.

On camera, Shamgar does not recall that decision. He does declare that the "Supreme Court is … totally impartial" in ruling on policy in the territory, a claim that appears absurd to the viewer sitting in judgment: However well intentioned Israeli justices may be, they represent the occupying power. Alexandrowicz's off-camera voice reads Shamgar the challenge raised by an Israeli legal scholar in 2002: In almost all cases, the Supreme Court has sanctioned the military's actions. Without the threat of judicial review, the army and government would have acted with less restraint—but it's possible that the occupation would have lost legitimacy more quickly and political pressure to end it would have grown. In the courtroom atmosphere of the film, Shamgar's dismissal of the challenge only makes it more convincing. Yet the scholar himself had no definite answer. Without concern for defending their actions in court, military authorities might have committed much worse violations of rights.

If the interviewees are the defendants, we find that we can't judge them equally. Some see themselves as having simply done their jobs, others make the case for the system even as historical evidence shown on the screen behind them undercuts their testimony. An ex-judge named Jonathan Livny describes the task he had to perform with a furious, unforgiving honesty.

"You know, sometimes I look at the court rulings and I ask myself, when you write a judgment, the purpose is not only to punish but also to correct. But of course you can't correct a population that sees you as an occupier and views its own actions as morally justified. All the philosophy of criminal punishment turns into, 'You did this to me, I'll get you back, I'm going to put you away,'" Livny says.

Near the end of The Law In These Parts, Livny makes his own indictment sharper. "When you're a military judge, you don't just represent justice … As a military judge you represent the authorities of occupation against people who see you as the enemy. You're conducting a trial against your enemy… It's an unnatural situation," he says. "As long as it's only temporary, fine. But when it goes on 40 years? How can the system function? How can it be just?"

So the charges are really being brought against the ongoing occupation. But the occupation is only a condition. It is the offense, not the perpetrator. In Hebrew, the narrator's voice speaks in first person: We did this. This is being done for us. By "us," he means Israeli society, which is actually sitting in the dock, and sitting as well at the judge's bench, and in Alexandrowicz's voice is conducting the prosecution.

When Livny is asked whether he'd accept the job if he had it to do over, he says firmly, "Yes." We don't hear his explanation. I imagine he'd say that if he hadn't served as judge, someone less concerned with justice might have, and that he would therefore have borne responsibility for greater injustice. The system is unjust but pays tribute to justice; it is internally inconsistent. Opting out may make one feel pure, but may not result in doing good.

The Israeli human rights lawyers who represent residents of occupied territory before the Supreme Court face a variation on this dilemma: What if they are legitimizing the system? And yet, how can you not seize an opportunity for change?

Let's return to the Migron ruling. If implemented, it will give people their land back. Perhaps it also creates an illusion that West Bank settlement is restrained by law and fits standards of justice. And yet, the opposite is at least as likely: The long, heavily reported court case and the government's unending efforts to avoid doing the right thing may have made more Israelis ask, "If this goes on 45 years, how can it be just?" The Law in These Parts does not provide an answer to this dilemma, but does a very good job of raising the question.

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