ONE Magazine

The official publication of
Catholic Near East Welfare Association

Celebrating 50 years | God • World • Human Family • Church

Legal Protection for Palestinians

A firsthand account of an Israeli lawyer’s fight for the rights of the Palestinians in the Israeli-occupied territories.

In December 1987, a Palestinian wounded and killed an Israeli in the Gaza Strip. This was not extraordinary; since Israelis began to move to the Occupied Territories, a number had been killed. In revenge, an Israeli drove his truck against a wall, crushing four Palestinians. The response was electric. Rioting began; the Israeli army lost control. In a show of defiance, Ariel Sharon, the former Israeli minister of defense, took up residence in the Muslim Quarter of the Old City of Jerusalem. These events sparked the intifada, the Palestinian uprising against twenty years of Israeli occupation.

At the time, I was a lawyer in private practice in West, or Jewish, Jerusalem. I dealt mainly in civil and divorce law; it was enjoyable and the practice, fairly successful. I looked forward to establishing myself within the Israeli legal community.

However, two things changed my direction. First, for reasons known and unknown, I found myself exploring Christianity and attending Mass daily. This began to shake my secure social framework, and yet I could not draw back. I had not yet decided to be baptized, nor did I consider the consequences if I did. I simply followed an intense schedule of readings knowing that I would rest in the truth as I understood it.

The second event was the intifada. Instinctively I knew that with Ariel Sharon’s defiance of the status quo a religious balance held for nearly 500 years was irrevocably destroyed. Palestinians went on strike; the Israelis tried to break the strikes. Riots ensued and violence was used to quell them. Before we knew it, there was a full-scale uprising.

Then, for the first time, I read a book in Hebrew. It explained the legal practices and implications of the Israeli presence in the West Bank and Gaza – Palestine. I was shocked and horrified. I now understood what we Israelis were doing to the Palestinians.

The first year of the intifada was a gruesome battle between civilians and soldiers. Palestinians of all ages were beaten, shot and often killed. Many were wounded and maimed. I felt completely helpless; my only response was to scream and shout at anyone who would listen. The intifada was an uprising for freedom, a peoples’ innate desire to throw off the yoke of oppression. The world saw this as well and used the analogy of David and Goliath. This time David was Palestinian; Goliath, the Israelis.

In early 1990, I offered my services to B’Tselem, the Israeli human rights documentation center. After a few exploratory trips to the Occupied Territories, I concluded that while it was necessary to document all human rights violations, a legal organization was needed to alleviate the pain and losses suffered by individuals.

On 11 May 1990 (a year and a half after my baptism as a Catholic), I left Mass to prepare for my Jewish family the traditional Friday night meal. I stood outside the Pontifical Biblical Institute and in sheer frustration I turned to the Jesuit who said Mass and said, “Father, what is the Catholic Church doing for the poor and oppressed in Palestine? Why don’t we have legal aid services for Palestinians under occupation?” We looked at each other and realized we had probably hit on something important.

As the idea of a legal clinic developed, I traveled to South Africa, where I met representatives of human rights organizations through the auspices of the Justice and Peace Office of the South African Catholic Bishops’ Conference. I met Rev. Albert Nolan, O.P., who has written several theological works on apartheid, as well as those lawyers who had been pivotal in the fight against apartheid. Their advice was to establish a legal resource center, which would concentrate on “test cases” in the attempt to make the legal system more responsive to the needs of the Palestinians under occupation.

With their advice I returned to Jerusalem, to Archbishop Michel Sabbah, the Latin Patriarch of Jerusalem, who set up a committee to help work out the logistics of such an organization.

On 1 January 1991, the patriarch erected the Society of St. Yves, an autonomous canonical foundation to provide legal assistance for the poor and oppressed. St. Yvo, a 14th century lawyer from Brittany, was chosen as our protector.

The first case taken by the new society was at the beginning of the Gulf War. Gas masks were distributed to the Israeli population and to the Jewish settlers in the Occupied Territories. They were not given to the Palestinians who were at equal risk. The Israel Association for Civil Rights refused to petition for the gas masks, claiming that there was no law obliging the Israelis to care for the Palestinians under their control. Hence our first case.

We petitioned the Israeli high court on the grounds that Palestinians are also human beings and therefore also needed the masks. The decision of the court came down in our favor; the decision, however, was never implemented – this did not concern the court.

Only 172,000 masks were available for the nearly one million Palestinians in the territories. None of these masks were for children or infants. Subsequent information revealed these masks to be defective; the masks had expired more than 10 years earlier. These defective masks were sold to the Germans for 60 cents per unit then bought back for $17.50 each, specifically to show the court of their existence.

This experience was very revealing. We have never won another case outright. Nevertheless we have been able to stop certain confiscation and attempts to deny Palestinians the use of their land.

The high court sees the army as the equivalent of a public administration, with soldiers acting as civil servants. Thus the army is granted certain presumptions in law that pertain to a civilian bureaucracy, specifically, that it always acts reasonably and in good faith. This imposes the burden of disproving these presumptions on the Palestinians.

Another great barrier to review is the ouster clause of “security.” The high court refuses to examine a petition on an issue if the state, representing the army, claims security considerations dictate the army’s actions. It has also refused to review the legitimacy and legality of the military orders that have suspended the legal system of the Occupied Territories. The court claims that it lacks the professional expertise to undertake review of security issues. Judicial review has therefore been confined to procedural issues.

The court has invented another argument to protect the army and its actions. This they call “relevancy.” It was demonstrated when we argued the illegality of a two-week curfew imposed on the Ramallah area in late 1992. In this case the round-the-clock curfew was a form of collective punishment, forbidden in the laws of war. The court refused to say whether the regulation permitting the imposition of curfews was legitimate, since the day before, the curfew had been lifted. Now that the curfew was over, they said, it was not “relevant” to consider its legality. I asked the justices whether this reasoning would apply to a person on trial for murder. Could it not be argued that since the victim was dead, it was not “relevant” whether his death had been caused legally or not? There was no response.

The combination of the above arguments has resulted in the rejection of nearly all petitions.

Another revelation concerning the high court is the lack of any written record, or “protocol” of the hearings. The method used in the courtroom is oral argument. In a petition against deportation, I argued for six hours. There was no reference to the arguments in the court’s final decision; naturally, no one can remember long oral arguments. They only remarked that “The court has dealt with the question of international law in other cases.” When told of the court’s refusal to record the proceedings (or even to allow them to be recorded at our expense), a Belgian jurist remarked that a protocol would obviously be a waste if the decision were known ahead of time. No deportation, house demolition, land confiscation, nor any other Palestinian issue in conflict with Israeli policies, has ever been overturned by the court.

Perhaps the greatest obstacle in arguing test cases is Israel’s rejection of the applicability of international instruments (such as the Geneva Convention and all customary law) that should guarantee the protection and promotion of human dignity. The analysis of international law and its underlying purposes has been included in the petitions wherever appropriate. We have shown how the Defense (Emergency) Regulations passed by the British when they were the mandatory power in Palestine before the declaration of the State of Israel (1948) cannot be valid for use by an invader against the very population such measures are supposed to protect. We argued that punishment is not protection. International humanitarian law protecting civilians under occupation, which forbids housing destruction, deportations and family separations, cannot be superseded by emergency regulations. The high court refused to relate to these arguments.

Our analysis of the oppressive legal system applied in the Occupied Territories led us to basic questions about truth and morality. With the Israeli rejection of international law as the guiding standard, we turned to values more easily understood both by Israelis and the world. We turned to moral theology to examine the nature of Israeli practices, to formulate a Christian response.

The task of the Society of St. Yves is to confront the reality of an oppressive legal system. Catholic social teaching provides us with guiding principles of justice, morality, and peace. The daily reality of Palestinian life provides the continual challenge: husbands and wives separated by immigration policies, elderly women denied welfare benefits, farmers losing their land to Jewish settlements, and young men shot dead on sight by Israeli army units disguised as Arabs. The kind of events that sparked the intifada in 1987 are now commonplace.

There is a note of tragedy in our assessment of the situation. While Christianity tends to look upon the world in terms of the love of God, and looks disparagingly upon “law” as being narrow, confining and morally inferior compared with the message of Jesus, it is only legitimate law that can preserve our societies and allow them to flourish.

Our conclusion, that the Israeli legal system is being used in a discriminatory manner to further the illegitimate territorial aims of the state, means that Israel is not functioning as a state based on the rule of law.

Ms. Brayer lives and writes in Jerusalem.

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