Military Lawyers Making Law: Israel’s Governance of the West Bank and Gaza

Abstract

This Article examines Israeli military lawyers’ practice of international humanitarian law (IHL) revolving around the West Bank and Gaza. Based on interviews with legal officers serving in the army between 1967–2009 and archival materials, it interrogates these lawyers’ work—the stories that they tell about law, their legal interpretations and their interactions with military decision makers. This interrogation is set in the context of broader structural, historical, and political shifts. Anchored around lawyers’ stories about law, their narration of law’s relationship with politics, and its position in relation to violence, this account sets out to contribute to discussions on lawyers’—and by extension law’s—past and present positions in states’ military affairs.

Self-Proclaimed Human Rights Heroes: The Professional Project of Israeli Military Judges

“…Interviewees were identified based on their judicial decisions, public biographies identifying them as civilian judges, reference by professionals, personal knowledge, and the "snowball" method. None of the interviewees were active military or civilian judges and prosecutors, as access to those was impossible, a fact also noted by other researchers (Hajjar 2005;Viterbo 2018e;Geva 2019) and that limited the number of interviewees. However, it became a conscious choice to interview retired state officials who were no longer formally committed to their official role and thus could speak more freely (Krebs 2012).…”

“…Previous analyses of Israel's efforts to legally legitimize the occupation have remained largely confined to a unitary image of the state (Shamir 1990;Bisharat 1994;Kretzmer 2002;Hajjar 2005, 49-75;Gross 2007;Gordon and Perugini 2015). Even those studying specific legal actors within the state have focused their analysis on actors' strategies on behalf of the state and on their positions in relation to the conflict over rights between the state and individual claimants (Dotan 1999;Hajjar 2005;Krebs 2012;Geva 2019). However, there has not been sufficient discussion on the diverse strategies of using the human rights discourse by legal actors with regard to their own professional field.…”

“…Much of the literature on the legal strategies of the Israeli occupation forces in the last two decades makes a seemingly opposite claim: that Israel's military strategies since 2000 have become more lethal and detrimental to Palestinians' lives, while military lawyers deploy the law as a weapon of war ("lawfare"), abandoning the "benevolent occupier" position (Weizman 2010;Craig 2013;Viterbo 2018b, 243-50;Geva 2019). In fact, however, my argument does not deal with war-like strategies and their legal justifications.…”

“…In fact, however, my argument does not deal with war-like strategies and their legal justifications. Military judges in the OPT occupy a particular position within the military: unlike advising military lawyers, they are not engaged with normative and practical decisions on military activity (Kennedy 2006;Luban 2013;Geva 2019). While legitimately imprisoning large numbers of the Palestinian population is crucial in the overall effort to maintain Israeli control, that effort is mainly conducted by detaining and interrogating authorities, and the important judicial decisions are the ones regarding administrative and pretrial detention.…”

Occupations in context – The cultural logics of occupation, settler violence, and resistance

“…Occupation language also provides a framework for Israel's denial of the fact of occupation (Shafir, 2017) and focuses attention on legal questions associated with Israel's responsibilities towards occupied populations, such as proportionality of force, rather than focusing attention on the legality of the occupation policy itself (see also Kauanui, 2018 on Hawaii). Judicial institutions operating under conditions of occupation, including both military and civilian court systems, contribute to the maintenance of state power by providing venues for individuals to seek redress for state harms while ultimately ensuring the operationalization of impunity for state perpetrators, the criminalization of dissent, and the legalization of the state's apparatus of control (Duschinski and Ghosh, 2017;Duschinski and Hoffman, 2011;Geva, 2017Geva, , 2019Hajjar, 2005). As Feldman summarizes, "Cases such as this reveal the limits of the law as a mechanism for effecting a serious change in occupation policy, let alone as a means to bring an end to an occupation" (2018: 1609).…”