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.
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
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.
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
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.
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
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
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
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.
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