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Tuesday, October 6, 2015

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IDF lawyers act with integrity in West Bank

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We’re in the midst of another series of worrying occurrences in the West Bank, at least if you’re concerned about the rule of law in those parts – to paraphrase the title of Ra’anan Alexandrowicz’s award-winning documentary The Law in These Parts, released last summer. It examines the role of IDF judges and legal advisers in the now 45-year-old Israeli occupation of Judea and Samaria.

Having served as the IDF legal adviser to the West Bank and having spent most of my professional career addressing the legalities of myriad issues, large and small, pertaining to the IDF’s military governance of this area, I dispute Alexandrowicz’s underlying premise, expressed when accepting a prize at this year’s Sundance Film Festival. He noted that “what you find out in the film… is that upholding law doesn’t always lead to justice. It can even be used as a tool against certain segments of society. We have to oppose them, and if necessary, we have to break them.”

I argued against these hypotheses as well as the manner in which the film was made when I debated Alexandrowicz after a screening of his film in Tel Aviv several months ago.

IDF lawyers, particularly those serving in the West Bank, often face complex dilemmas. My experience is that they do so with legal, ethical and moral integrity, understanding that the law, international or domestic, governs and not the whims or desires of other players in the field. And there are many players – left and right; Israelis, Palestinians and assorted foreigners; politicians and bureaucrats; military commanders and civilians.

Examples abound of recent West Bank events, loaded with legalities, requiring adroit legal attention from IDF lawyers, not to mention nerves of steel and a very sturdy backbone.

Just before Passover, settlers invaded a house in a Palestinian neighbourhood of Hebron, claiming they had circuitously purchased the property from its original Palestinian owner. Government ministers and assorted politicians flocked to this new Jewish enclave.

IDF lawyers examined the situation and concluded the settlers should be evicted to allow appropriate scrutiny of the conveyance contract, but mostly because they hadn’t received a permit necessary to complete the transaction, requiring prior ministerial approval for such deals to ensure the government – and not settlers – decide if, where and when to expand existing Jewish presence in the West Bank.

IDF lawyers will also be deciding whether to indict Lt.-Col. Shalom Eisner, deputy commander of the Jordan Valley Brigade, who struck a Danish pro-Palestinian supporter in the face with his assault rifle the day after Passover, because the Dane and other Palestinian and foreign activists refused to disperse a protest by cyclists.

The most sensitive matters presently being dealt with by military attorneys serving in Judea and Samaria relate to the fate of several unauthorized and illegal outposts and neighbourhoods in different locales around the West Bank. Tens are scattered all over the territory, but the most overtly illegal are those built on land owned privately by Palestinians.

In the past few years, Palestinian land owners, represented by Israeli lawyers, have petitioned the Supreme Court demanding that the West Bank military government dismantle settler construction erected on their land. In several cases, the state has been ordered to destroy these structures.

The current hotspots are Migron, an illegal outpost housing more than 50 families, and Givat HaUlpana, a neighbourhood of Bet El with thirty families of its own. The Supreme Court set dates by which the buildings in both spots must be dismantled or destroyed, but politicians and military commanders want delays, arguing that destruction will lead to explosive circumstances.

Prime Minister Benjamin Netanyahu’s coalition is threatened by the prospect of demolition, and commanders fear settler violence. Government lawyers asked for long extensions on the court’s orders, but got less. Migron is to be dismantled by Aug. 1, and the government was given only two months to explain how and when it plans to destroy the Ulpana neighbourhood.

Cases such as Migron and Ulpana put legal advisers in uncomfortable positions. Their “clients” don’t like their advice, not understanding the different allegiances government and private lawyers have – one to the law, the other to their clients.

West Bank legal advisers often find themselves being lambasted from the left by people like Alexandrowicz and from the right by settlers and their supporters.

This criticism always made me feel that I was probably doing an effective job.

This column appears in the May 10 print issue of The CJN

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