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

Abstract

This article explores the cooptation of human rights discourse by looking into how Israeli military judges in the Occupied Palestinian Territories use human rights as professional capital. Previous research into human rights arguments legitimizing the Israeli occupation remained confined to a unitary image of the state. Here, I dissect the separate professional project of military judges. Optimizing a self-congratulatory argument, judges portray themselves as human rights heroes of Palestinians. But while independent judicial activism would criticize human rights violations by the state, military judges use human rights as synonymous with legal professionalism, while avoiding criticism and sidestepping human rights’ challenge to state power. Using a multimethod approach including analysis of judicial decisions, academic articles by military judges, and in-depth interviews, I argue that between 2000 and 2010, Israeli military judges were responding to a professional legitimacy crisis by what I call mimetic convergence. Relying on new institutionalism and postcolonial theory, mimetic convergence produces belonging and mobility for a professional subgroup that experiences alienation in the “colony” through convergence with the specific characteristics of the legal community of the “metropole.” Mimicking the state instead of criticizing it permits the two projects— promoting military judges professionally and legitimizing the state’s colonial occupation—to coalesce.

Enemy parole

“…Therefore, possibly, the legal discourse of presumption/burden and the heavy use of judicial decisions serve to legitimatise parole denial through appealing to the law's impartiality, objectivity and procedural legitimacy and serves to ‘establish[] the exception as being lawful’ (Krasmann 2007: 305). This narrative is integrated with other contexts of shaping and justifying OPT-related policies through legal arguments (see Ben-Natan 2021a; Viterbo 2018).…”

“…According to the IPS regulations, the ‘security classification’ serves ‘prison management, preserving order, discipline and security’ (IPS 2020b: s. 1(a)) because these prisoners ‘hold substantial risk for State security, generally, and risk for the order and discipline of prison, particularly’ (IPS 2020a: s.1(b)). Security prisoners are governed by special IPS regulations that apply both to the residents of the OPT, sentenced in military courts, and the residents of Israel, sentenced in Israeli courts (Ben-Natan 2021a). A ‘security’ classification is usually based on the assessment of the Israeli Security Agency, more known by its former name: ‘Shin-Bet’ (IPS 2020b).…”

“… 1. This number includes administrative detainees, imprisoned without a criminal charge, based on privileged evidence and ordered by military authorities (Ben-Natan 2021a). …”

The dual penal empire: Emergency powers and military courts in Palestine/Israel and beyond

“…It is thus more important than ever not to buy into the formal "rule by law" of emergency powers. Facing growing criticism over noncompliance with human rights standards, the sincerity of Israeli military lawyers has been replaced by a discourse of self-proclaimed commitment to human rights and new types of denial (Ben-Natan, 2021a, 2021b. In the imperial US-led "war on terror," President Bush established the military commissions in Guantánamo Bay by executive order, but the US Supreme Court overruled this use of executive power.…”

Territoriality and Status in Human Rights Litigation: The Case of Israel/Palestine

“…Moreover, the territorial status of the territories under Israeli control did not always align with the status of their residents (a situation that continues to this day). One example is the annexation of parts of these territories into the state's jurisdiction—a process in which their Palestinian residents were not incorporated as citizens; another example is the granting of full citizenship rights to Israeli settlers living in territories that are officially under occupation (Panepinto 2017; Ziv 2018; Ben-Natan 2021; Viterbo 2018; Weizman 2016).…”