Filmmaking Decisions: Why Make a Documentary About the Law?
The Law in These Parts is an unprecedented exploration of the evolving and little-known legal framework that Israel has employed to administer its 40-year military occupation of the West Bank and, until 2006, Gaza.
The story is told through the words of the very military judges, prosecutors, and legal advisors who helped create the system and who agreed to take the cinematic witness chair to explain their choices. Weaving together these interviews with archival footage, often in the same frame, Israeli filmmaker Ra'anan Alexandrowicz has produced a comprehensive and evocative portrait of a key facet of one of the world's most stubborn and enduring conflicts. The Law in These Parts reveals not only the legal architecture of military occupation, but also its human impact on both Palestinians and Israelis. The film asks a question as troubling as it is unavoidable: Can a modern democracy impose a prolonged military occupation on another people while retaining its core democratic values?
Since Israel conquered the territories of the West Bank and Gaza Strip in the 1967 Six-Day War, the military has issued thousands of orders and laws that impact resident Palestinians. Early on in the film, Alexandrowicz explains his motives when he calls this ad hoc system of Israeli military rule "a unique system [that] very few people understand in depth." The men, retired now, who sit down with the filmmaker to provide that depth are judges, prosecutors and other legal professionals. They are also high-ranking military officers. In the film, they are exceptionally candid about their actions and largely unapologetic, even as they admit inconsistencies and contradictions in the system they built.
Alexandrowicz writes, "I see The Law in These Parts as a film with three 'layers.' Primarily, it is a film that explores a system--that system's genesis, its history and the effect it has on the society that created it. On the second level, it is a film that stares into the eyes of people who developed and operate the system--people who are no different from me or my audience. The film tries to understand how these people see their work. On the third level, The Law in These Parts exposes the hidden seams of the very documentation of a politically charged, complicated subject. Through the film's storytelling, I hope the viewer is made aware of the parallels between the cinematic structure and the legal one."
Sources:
» Kretzmer, David. The Occupation of Justice. Albany: State University of New York Press, 2002.
» POV Press Release.
The Law of Occupation: What Led to the Formation of the Current Legal System in the West Bank?
There has never been a modern, autonomous Palestinian state. Since the 16th century, Palestinians have been subject to Ottoman and then to British rule. After the establishment of the state of Israel and the 1948 war, the Palestinians in the West Bank and Gaza Strip remained under Jordanian and Egyptian rule, respectively. In the 1967 Six-Day War, Israel conquered the territories of the West Bank and Gaza, more than tripling the area it controlled, from 8,000 square miles to 26,000 square miles. Overnight, about one million Palestinians, previously under the control of Egypt or the Kingdom of Jordan, became subject to a new legal system. This was not the legal system of the state of Israel, but a temporary system of military courts created within the requirements of the international law of occupation.
The international law of occupation says that an occupying army is responsible for the order and welfare of the residents of an occupied area. The duties of an occupying power are detailed in the cornerstones of international humanitarian law: the 1907 Hague Regulations (articles 42-56), as well as the Fourth Geneva Convention and the provisions of Additional Protocol I. Within their interpretation of these laws, the Israeli military has since issued thousands of orders to Palestinians living under occupation and tried hundreds of thousands of them in military courts. Although the law of occupation does not require it, Palestinians wishing to challenge such military orders, judgments of the military court system or any other action taken by the occupying forces have been given the right to petition the Israeli Supreme Court.
The legality of military occupation by any nation is regulated by the United Nations charter and the law known as jus ad bellum, "the law of war." International law states that "occupation is only a temporary situation" (as in the Allied occupation of Germany and Japan following World War II.) This temporary status of occupation (as opposed to annexation, in which an area is absorbed into another state) exempted Israel from the requirement to grant Palestinian residents of the West Bank and Gaza citizenship. Israel's long-term occupation of the West Bank is without precedent in international law, and opinions vary as to whether it is legal or sustainable. Indeed, the official position of the Israeli government is that the West Bank is, from the perspective of international law, not occupied. Legally speaking, a territory can only be occupied if it was previously under the sovereignty of another state, whereas the international community never recognized Jordan's prior hold over the territories. Therefore, Israel argues, it is a legal administrator of a territory whose status has not been determined. Critics of the Israeli occupation, however, dispute this interpretation of the law, arguing that the territories are indeed occupied and that the continued Israeli administration of the West Bank has undermined the internationally accepted definition of "occupation" and has created a generation of Palestinians who are not regarded as citizens of any state.
Sources:
» Benvenisti, Eyal. The International Law of Occupation. Princeton: Princeton University Press, 2004.
» Hajjar, Lisa. Courting Conflict: The Military Court System in the West Bank and Gaza. Berkeley: University of California Press, 2005.
» International Committee of the Red Cross. "Annex to the Convention."
» International Committee of the Red Cross. "Occupation and International Humanitarian Law: Questions and Answers."
» Kretzmer, David. The Occupation of Justice. Albany: State University of New York Press, 2002.
» United Nations. "United Nations International Meeting on the Question of Palestine."
» Woolf, Alex. The Arab-Israeli Conflict. Milwaukee: World Almanac Library, 2005.
Defining Lawful and Unlawful Resistance
While the local Palestinian population was trying to understand the reality of the new occupation, Palestinian political and military organizations in the neighboring Arab countries launched a campaign of massive infiltration of the Occupied Territories by militant activists who would try to set up an infrastructure of local resistance to the new Israeli rule. The infiltrators and local cells carried out a number of successful operations, killing Israeli civilians in major Israeli cities as well as engaging with Israeli soldiers on the border.
International law draws a fundamental line, known as "the principle of distinction," between combatants and civilians. The purpose of this principle is to spare civilians from the effects of war and to create boundaries for the participation of fighters in hostilities. Civilians are not authorized to take a direct part in hostilities and are protected against the effects of military operations and individual acts of hostility; legal attacks cannot be directed against civilians, only against those engaging in direct hostilities. Any person who participates directly in hostilities in armed conflict can be deemed an "enemy combatant" and therefore considered a legitimate target for attack. Combatants must be given prisoner of war (P.O.W.) status when captured by the enemy.
Omar Mahmud Kassem Case
In the case of Military Prosecutor v. Omar Mahmud Kassem (1969), a group of Palestinians associated with the Popular Front for the Liberation of Palestine (P.F.L.P.), a faction of the Palestine Liberation Organization (P.L.O.) were captured during a firefight after surreptitiously crossing the Jordanian border. They were carrying weapons and explosives intended for bombing Israeli targets.
The Kassem judgment was one of the first legal texts to contend with the legitimacy of Palestinian struggle against Israel. It set the terms by which thousands of Palestinians would be tried and defined the way the military law saw acts of resistance to the occupation.
Kassem testified before the court that he was a Jerusalemite who left the country after the war. In Jordan, he joined the P.F.L.P. and he was then sent to infiltrate occupied areas and help spark an armed uprising in the region. He also claimed that as a soldier who fought against soldiers, he should not be regarded as a felon but as a P.O.W., a term only applicable to those recognized as lawful combatants.
In a precedent-setting decision, the judge in the case ruled that because Kassem's organization, the P.F.L.P., had planned and carried out attacks against civilian targets in other operations, Kassem was not eligible for lawful combatant status. The judge wrote, "Members of such an organization have no right to claim the status of 'lawful combatant.' International law was not written in order to protect terrorists and criminals."
Kassem and his co-defendants received life sentences for armed infiltration, possession of firearms and membership in an illegal organization.
Arifa Ibrahim Case
The circle of people who were brought to trial for crimes against order and security later widened beyond militants and political organizers. In the case Military Prosecutor v. Arifa Ibrahim (1976), a widow and mother of five stood trial for giving food and water to a suspected combatant. For two weeks, Ibrahim brought food to four men who were hiding out in vineyards of her village.
Ibrahim's defense attorney claimed that she should not be punished for feeding a person in need--even if he was an infiltrator wanted by authorities--and that her act could be considered a legal act of generosity. Justice Theodore Orr did not accept the defense, ruling that "human values" do not apply to suspected combatants or terrorists. Ibrahim spent a year and a half in prison.
Adnan Jaber Case
Adnan Jaber was a young resident of Hebron who left the country in the late 1970s to join the P.L.O. He trained in Lebanon and was recognized as a promising young officer and ordered to infiltrate the West Bank and reorganize the resistance in Hebron.
Jaber managed to infiltrate, but for a long period he and his cell had to remain hidden due to the increasing presence of the Israeli armed forces. In the spring of 1980, following the assassination of a P.L.O. leader in Cyprus, the cell received an order to carry out a retaliatory operation.
Jaber targeted the settlement in Hebron. On a Friday evening, he and three other militants ambushed a group of settlers (some armed) who were walking home after the evening prayer. Jaber's group attacked the settlers with submachine guns and grenades, killing six and wounding 13. After escaping and hiding for a few months, the attackers were captured while crossing the river on their way back to Jordan. All members of Jaber's cell confessed under interrogation and were put on trial for what became known as "the murder of the six," and is formally known as Military Prosecutor v. Adnan Jaber et al.
The court did not acknowledge that the defendants were lawful combatants and refused to view their actions in the context of the Israeli-Palestinian conflict, and the military judge did not view the settlers (some of whom had been armed by the army) as members of the armed forces. The court issued a sentence of life imprisonment. At the time, there was public pressure to use the death penalty to prevent Jaber from being released in the future, but Israel does not practice the death penalty. (Jaber was released after five years.)
In late 1985, four years after the trial, Adnan Jaber and his men were freed in a deal in exchange for Israeli soldiers captured in Lebanon by a Palestinian militant organization. Today, Jaber is an official with the Palestinian National Authority.
Sources:
» Asser Institute. "Combatant/Prisoner of War Status."
» International Committee of the Red Cross. "Annex to the Convention."
» International Committee of the Red Cross. "Occupation and International Humanitarian Law: Questions and Answers."
» Kretzmer, David. The Occupation of Justice. Albany: State University of New York Press, 2002.
» Levinson, Chaim. "IDF Expected to Seek Death Penalty for Killers of Fogel Family." Haaretz, May 20 2011.
The Disputed Legality of Israeli Settlements Within the Occupied Territories
While establishing the military judicial system, then Israeli attorney general Meir Shamgar decided that Palestinian residents in the Occupied Territories under Israeli military jurisdiction should have the right to appeal to the civilian Israeli Supreme Court. This became known as "judicial oversight," and it has been both praised and criticized. Although it created complications for military administrators on the ground, it also legitimized their actions with the approval of a respected, non-military authority.
The 1979 Supreme Court ruling on the Israeli settlement of Elon Moreh highlights the court's controversial role in the occupation. In the first decade of the occupation, some Israeli civilian groups began to build settlements within the Occupied Territories for various political and religious reasons. Usually, the military commander declared that the land on which these settlements were to be built was needed for the area to be secure. The land was then seized by the army. In the case of Elon Moreh, and in many previous cases, the Israeli Supreme Court first accepted the military's position and authorized the seizure of the land.
Residents of the Palestinian village of Rujeib objected to the military's appropriation of their lands to build the new Elon Moreh settlement. The Palestinian villagers appealed to the Israeli Supreme Court, arguing that the Israelis' claim that they needed the land for security reasons was merely justification for an illegal land grab. The Palestinians also cited the Hague Regulations that prohibit an occupying power from undertaking permanent changes in the occupied area unless they are undertaken for the benefit of the local population or due to military necessity.
This time, the Supreme Court was convinced that the security imperative was not the main reason for the appropriation and deemed the state's practice of seizing Palestinian land to establish settlements illegal and ordered removal of the settlement. The ruling tied the hands of Israeli government officials. To accommodate the desire to settle the land with the Supreme Court's ruling, these officials, including then minister of agriculture Ariel Sharon, began to search for legal solutions.
Legal advisors invoked a concept from Ottoman land law that dealt with mawat, or "dead land." Even though the Ottoman Empire had declined after World War I, this law had remained in effect under the British Mandate for Palestine and under Jordanian sovereignty over the West Bank. As such, international law recognized Ottoman land-law as presiding in the Occupied Territories. Under the Ottoman law, the ownership of "dead land" that was not cultivated for a period of at least three years reverted back to the empire. The Israeli legal advisors interpreted this to mean that "the empire," in this case, was the occupying power--the Israeli military.
This interpretation of the law provided politicians with a tool to claim land in the occupied territories, despite the ruling of the Supreme Court. In the years following the Elon Moreh case, Israeli authorities claimed over one million dunams (a measure of land from Ottoman law that equals 100 square meters) as state land. Approximately 38 percent of this land is today within the jurisdiction of the regional councils of the settlements. The settlements themselves cover between1 and 2 percent of the land area.
Sources:
» B'Tselem. "Land Expropriation and Settlements in the International Law."
» Forman, Jeremy and Alexandre Kedar."Colonialism, Colonization and Land Law in Mandate Palestine: The Zor al-Zarqa and Barrat Qisarya Land Disputes in Historical Perspective." Theoretical Inquiries in Law, Vol. 4, No. 2 (July 2003).
» Hajjar, Lisa. Courting Conflict: The Military Court System in the West Bank and Gaza. Berkeley: University of California Press, 2005.
» Helmreich, Jeffrey. "Diplomatic and Legal Aspects of the Settlement Issue."Jerusalem Center for Public Affairs, Vol. 2, No. 16 (January 19, 2003).
» Kretzmer, David. The Occupation of Justice. Albany: State University of New York Press, 2002.
» Levinson, Chaim. "Just 0.7% of State Land in the West Bank Has Been Allocated to Palestinians, Israel Admits."Haaretz, March 23, 2012.
» Rosen-Zvi, Issachar. Taking Space Seriously: Law, Space and Society in Contemporary Israel. London: Ashgate, 2004.
» Taub, Gadi. The Settlers and the Struggle Over the Meaning of Zionism. New Haven: Yale University Press, 2010.
» The World Bank Social and Economic Development Group Finance and Private Sector Development Middle East and North Africa Region. "The Economic Effects of Restricted Access to Land in the West Bank."
Establishing Rule of Law: Is an Independent Judiciary Possible Within an Occupation?
Israeli military courts are based on the rules of the Geneva Convention. Each court has three judges who are Israeli military officers who have studied law. (For the first three decades of the occupation, only one of the judges was required to have studied law). The prosecutor can be anyone appointed by the military commander, and the defendant may be represented by an attorney of his or her choice. The proceedings take place in Hebrew, but a soldier who can translate the proceedings into Arabic must be present.
The orders for establishing the court include this sentence: "A military court may order the use of procedures that are not designated in this order but are deemed to be the best procedures to achieve justice."
The first Palestinian defendants in the military courts were brought in for offenses such as looting, breaking curfew, possession of arms and defying military orders. But as the occupation continued, the courts began to rule on an expanding set of crimes, ranging from resisting the occupation by political, popular or armed means to defying nature preservation rules or committing traffic violations.
Hundreds of thousands of Palestinians in the Occupied Territories have been prosecuted in the military courts since 1967. According to the United Nations Human Rights Council, more than 150,000 Palestinians were prosecuted between 1990 and 2006.
As mentioned above, the Israeli Supreme Court has heard petitions from Palestinians wishing to appeal the judgments of the military courts. Apart from the issue of land seizures and appropriations, the Supreme Court has also heard arguments regarding many of the military orders issued in the Occupied Territories. Among the issues it has considered are the punitive demolition of homes of Palestinians suspected of harming Israelis, the forced deportations of suspected resistance leaders, the restrictions on Palestinians' freedom of movement within the territories and the practice of "targeted killings"--the summary execution of suspected militants.
In practice, the Israeli Supreme Court has rarely opposed or struck down actions taken by military in the occupied area. Even when the court has opposed the actions of the military occupation, it has often issued narrow rulings, or simply urged restraint. As a result, some consider the court to be unfairly biased toward the priorities of the occupying forces over the rights of the Palestinian residents of the Occupied Territories. It is widely accepted, however, that in those instances when the court has chosen to intervene, it has curbed the powers of the occupation.
In the film, filmmaker Ra'anan Alexandrowicz reads Meir Shamgar an assertion from an Israeli legal scholar at Hebrew University that states that the court's judicial review of the occupation authorities gave the occupation itself a measure of legitimacy in the eyes of the Israeli public that it might not otherwise have enjoyed--a characterization that Shamgar rejects.
Sources:
» International Committee of the Red Cross. "Annex to the Convention."
» International Committee of the Red Cross. "Occupation and International Humanitarian Law: Questions and Answers."
» Kretzmer, David. The Occupation of Justice. Albany: State University of New York Press, 2002.
» United Nations. "Report of the Special Rapporteur on Independence of Judges and Lawyers."
» Weill, Sharon. "The Judicial Arm of the Occupation: the Israeli Military Courts in the Occupied Territories." International Review of the Red Cross, ol. 89, No. 866 (June 2007).
» Yesh Din. "Military Courts."
Judging Your Enemy: Professional Dilemmas of Military Jurists
The legal system put in place by the Israeli occupying forces after 1967 was a stopgap program intended to avoid a breakdown of the rule of law following the occupation, but it has endured in the long term and become a system of laws that govern every aspect of life in the Occupied Territories. This has required a great deal of modification, improvisation and compromise on the part of the individual judges and legal advisors who are charged with presiding in court and administering the law. Ultimately, Israel asks these judges to reconcile the different priorities of national security , settling an occupied area and upholding the rule of law.
Two subjects that demonstrate the dilemmas that military jurists face are administrative detention--imprisonment without trial--and the alleged use of torture by Israel's General Security Service in interrogations that led to indictment of defendants in military courts.
6.1 Administrative Detention
Administrative detention, as a legal concept, was introduced to the Occupied Territories through the security orders of the Post-World War I British authorities in Palestine and was subsequently adopted by the Israeli military justice system. Administrative warrants allowed the Israeli army and Israel's General Security Service--the country's internal intelligence agency, also known as Shin Bet--to arrest and hold people for long periods of time without trial.
The number of administrative detainees in Israeli prisons changes according to the level of Palestinian resistance to the occupation. In 1999, when it seemed that a political agreement was within reach, there were only a few administrative detainees in holding. Two years later, in the midst of the second Palestinian uprising (Intifada), thousands were held under administrative arrest. At the end of June 2013, there were approximately 140 Palestinian residents of the Occupied Palestinian Territories held under administrative detention.
During the first Intifada in 1987, open air prison compounds were established to hold large numbers of arrested Palestinians. Some of the people held in these compounds were tried, but many were held under administrative warrants and did not know how long they would stay incarcerated.
A prisoner who is under administrative detention has the right to appeal to a military judge. The administrative arrest order and judicial supervision proceeds in this manner: the General Security Service shows classified material in the form of a written testimonial to the judge. The defendant is brought before the judge and has the right to be represented by an attorney. The army and General Security Service are represented by a prosecutor. The judge then has to decide whether to uphold the arrest order, cancel it or shorten the defendant's period of detention.
The process allows evidence used against defendants to be withheld from them. The General Security Service justifies this practice with the claim that releasing classified (secret) evidence would expose intelligence sources and harm the security of the area. Since the defendants in this situation do not know the grounds for keeping them under arrest, they can only speak in general terms to the court. For his part, the judge is not allowed to question the defendant regarding the alleged accusations and must make a decision based only on his impression of the material he sees. The defendant is physically present in the courtroom, but his or her presence has little or no effect on the decision.
The judges who reviewed administrative arrests at the time of the first Intifada rarely cancelled administrative arrest warrants. They did sometimes shorten arrest warrants by a month or two. But a new release date was not a guarantee that a new warrant would not be issued for the defendant prior to his or her release.
Military judges faced a professional dilemma in administrative detention cases, which highlighted the tension between their roles as judges (i.e., impartial administrators of the law) and their concurrent roles as soldiers whose army was engaged in an armed conflict with Palestinian residents from the Occupied Territories and who are, at least nominally, therefore on the same "side" as the army and the General Security Service.
6.2 Torture
The use of torture during interrogations posed another dilemma for military jurists. In most trials in the military courts, defendants arrived in court having confessed to the charges during interrogation--interrogation during which the General Security Service and the Israeli Army often secretly used torture to extract confessions.
In 1987, an Arab-Israeli army officer who had been found guilty of treason appealed to the Israeli Supreme Court. As a result of this case, for the first time the public was made aware of the methods of interrogation used by the General Security Service, which had interrogated the officer. A governmental commission was appointed to determine the procedure actually used in interrogations conducted by the General Security Service, and the commission's findings, known as the "Landau Commission Report," shook the Israeli public.
Part of the report was classified, but the unclassified portion confirmed that the General Security Service had used torture widely in its interrogations. In its conclusions, the courts accepted the General Security Service's position that torture in interrogations was necessary if the security of the country was to be maintained. But the commission was harsh about the fact that General Security Service agents had apparently perjured themselves in court for 20 years when questioned under oath about their means of obtaining confessions.
The commission wrote:
The interrogator, when taking the stand, saw a jeopardy in telling the truth. For one, the danger of exposing the techniques of the interrogation (to the enemy). Secondly, the disqualification of the confession and the acquittal of the defendant.... The solution the interrogators found was the easy one. They preferred secrecy to the duty of [telling the] truth in a courtroom. On the stand they boldly denied applying any physical pressures and thus committed a criminal felony of perjury.
The Landau Commission Report triggered public debate that led to the 1999 Israeli Supreme Court decision in Public Committee Against Torture v. State of Israel that banned the use of torture in interrogations. Interrogators are not prohibited, however, from "asserting the defense of necessity" under circumstances where torture is seen as immediately necessary to save human lives.
In the film, judges who heard the false testimony from General Security Service representatives are asked whether they were aware of the illegal use of torture by the General Security Service. Their answers vary, but all reflect the extreme pressure on these judges to enforce the law of occupation while upholding the principles of justice.
Sources:
» +972. "Fact Sheet: 25th Anniversary of the First Intifada."
» Addameer.
» Blum, Stephanie. "Preventive Detention in the War on Terror: A Comparison of How the United States, Britain and Israel Detain and Incapacitate Terrorist Suspects." Homeland Security Affairs, Vol. IV, No. 3 (October 2008).
» B'Tselem. "Administrative Detention."
» B'Tselem. "Torture & Abuse Under Interrogation."
» Casebriefs. "Public Committee Against Torture v. State of Israel."
» The Israel Democracy Institute. "Is Administrative Detention the Right Tool for Fighting Terrorism?"
» Khoury, Jack. "Amnesty Calls for Release of Palestinian Writer in Israeli Detention." Haaretz, April 26 2013.
» Kretzmer, David. The Occupation of Justice. Albany: State University of New York Press, 2002.
» Mann, Itamar and Omer Shatz. "The Necessity Procedure: Laws of Torture in Israel and Beyond, 1987-2009." Yale Law School Legal Scholarship Repository.
» U.S. State Department. "Country Reports on Human Rights Practices for 2011: Israel."
The Future: What's Next?
The film closes with a statement by defendant Bassem Tamimi, excerpted below:
Your honor, I was born in the same year as the occupation, and ever since, I've been living under its inherent inhumanity, inequality, racism and lack of freedom. I have been imprisoned nine times for a sum total of almost three years, though I was never convicted of any felony. During one of my detentions, I was paralyzed as a result of torture. My wife was detained, my children wounded, my land stolen by settlers and now my house is slated for demolition. International law recognizes that occupied people have the right to resist. Because of my belief in this right, I organize popular demonstrations against the theft of more than half of my village's land, against settler attacks, against the occupation. You, who claim to be the only democracy in the Middle East, are trying me under laws written by authorities I have not elected, and which do not represent me. For me, these laws do not exist; they are meaningless. The military prosecutor accuses me of inciting protesters to throw stones at the soldiers. What actually incited them was the occupation's bulldozers on our land, the guns, the smell of tear-gas. And if the military judge releases me, will I be convinced there is justice in your courts?
What is your reaction to this statement? How would you respond to his suggestion that demonstration organizers are not the ones who incite stone throwers and that instead the incitement comes from Israeli actions?
Tamimi closes by questioning the capacity of the judge to deliver justice, no matter what the verdict. What does this suggest about the limits of military courts in the context of an occupation? What would justice look like for Tamimi? What would constitute justice for Israel's military courts? Can you envision what justice would look like if it satisfied all of the stakeholders in this conflict?
The filmmaker ends the film with the observation that the audience can now go back to "everyday reality" and he will likely "move on to document another subject." But those living in the limbo of occupation wait. Why do you think he ends the film with this sentence?