Analysis: The IDF and restraining orders against Israelis in the West Bank

Many settlers would not prefer a regime in which many of their legal issues were dealt with in the military justice system.

By YONAH JEREMY BOB
Yitzhar resident Boaz Albert arrest 370 (photo credit: YouTube Screenshot)
Yitzhar resident Boaz Albert arrest 370
(photo credit: YouTube Screenshot)
The emotional issues in the situation of settler Boaz Albert are much more obvious than the answer to the question of how the state and the IDF can best handle such cases.
Until a few months ago, Albert lived as a farmer with his family of six children in the West Bank Yitzhar settlement.
Albert was recently arrested and tasered by police – as documented in a YouTube video that was heavily circulated – for violating an administrative restraining order issued by IDF OC Central Command Maj.- Gen. Nitzan Alon to stay out of the West Bank for six months.
The obvious result of obeying such a restraining order would be Albert being kept from his farm and his family, presuming they did not relocate with him.
Albert chose to violate the order, which was followed by the arrest, tasering and an ongoing criminal proceeding against him.
Many would sympathize with Albert’s underlying question, legal and philosophical, in a recent op-ed he published on multiple media sites: Why should he, an Israeli citizen, be subjected to what he called an arbitrary (or at least opaque) process of the IDF issuing special orders against him without explaining the evidence against him, when in most criminal proceedings the defendant has the benefit of the doubt throughout the trial until conviction? The answers available and the alternatives to the current system unfortunately are not so simple and are as gray as the legal system gets.
According to security sources who spoke under condition of anonymity due to the sensitivity of the issue, the fact of Albert living in the West Bank, even as he remains an Israeli citizen, does change the entire constellation of legal principles that apply to him.
Because Israel is present in the West Bank under the Law of Belligerent Occupation, it means that an assortment of laws – including the law of armed conflict, Israeli administrative law, international law (notably the Hague Regulations), other pre-1967 foreign laws and IDF law (notably Emergency Regulations section 43) – impact the West Bank and those who live there at different times.
Some supporting Albert would say that after decades of Israelis living in parts of the West Bank expected to remain parts of Israel, such a legal framework can no longer apply.
But a security source said that in principle, Israeli citizens who live in the West Bank could be dealt with in the framework of IDF military law even for regular civil and criminal proceedings, just as with the Palestinians.
Despite this, the source said that a policy decision was made decades ago, in the aftermath of the 1967 war when the issue began to arise, that Israeli citizens in the West Bank would still have all regular criminal and civil proceedings dealt with in Israeli civilian courts, not in the military justice system.
Next, the source discussed what he referred to as the inherent differences between a regular criminal proceeding and an administrative proceeding against an Israeli citizen in the West Bank.
The source noted that the end result of a criminal proceeding is to convict a person of a crime and that the conviction often leads to jail time as punishment for that crime, sometimes many years.
In contrast, the order issued against Albert, while emotionally problematic for Albert and his family, does not condemn him for any crime, require prison time or prevent him from seeing his family.
Rather, it is part of the international law obligation to maintain public order, and in the legal abstract, the order merely limits his movement to one area and only for a finite period of time shorter than many prison sentences.
In this version of the situation, since the IDF is leveling much more limited sanctions against Albert and there is no attempt to convict him of a crime, he also does not need to be considered innocent until proven guilty.
Despite all of the above justifications for dealing with Albert in the military justice system, the source noted that Albert could have appealed to the Military Court of Appeals and even to the High Court of Justice, which would have given him a hearing in Israeli civilian courts at the highest level.
The source also noted that the criminal proceedings against Albert for violating the order are in the civilian courts of Petah Tikva.
Although the IDF did say that in the past there had been appeals to the military courts and the High Court and cases where they had intervened to override or modify administrative orders against settlers like Albert, in recent years there have been almost no such appeals.
Albert, his lawyer Adi Kedar and his supporters have made it clear that they do not trust this process and believe it is biased against them.
At the end of the day, what probably makes all of this the messiest and confuses the players involved is the government policy decision to split how it deals with Israeli citizens living in the West Bank between civilian courts for civil and criminal issues and the military justice system for administrative public order issues.
Why was this policy distinction made? The security source implied that such questions were beyond the IDF’s authority and had to be directed to the Knesset and the government.
The implication was that they could decide at any time to either put all legal issues of West Bank settlers, including civil and criminal, in the hands of the military justice system, or to do the opposite and put even administrative issues under the jurisdiction of the civilian courts.
Albert and his supporters would not prefer a regime in which more of their legal issues were dealt with in the military justice system, though that would be one clearer and more consistent result.
At the same time, while much of the anger is directed at the IDF for issuing the order, it appears that the issue could be “corrected” in favor of Albert by the government, even without a Knesset decision, as the decision is a matter of policy and not a prior Knesset law.
One can speculate as to why the current government has not made a change. But whatever its reasons, ultimately, the government has chosen not to change the policy, and until it does, Albert, his family and others will be heavily impacted by this unusual legal anomaly.