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Can West Bank Palestinians find justice in court?
By YONAH JEREMY BOB
19/11/2012
A debate about whether justice is possible in military courts went unresolved at an Israel Bar Association conference in Tel Aviv.
 
A debate about whether justice is possible for Palestinians in West Bank military courts went unresolved at an Israel Bar Association conference in Tel Aviv on Thursday.

Former head of the West Bank military appeals courts Shaul Gordon and the current head prosecutor for the West Bank courts said essentially that justice was possible.

Gordon said that the courts had improved significantly over the past.

He added that over time the system had worked through many unexpected and unique issues to legal proceedings involving dealing with people with a different language and, at best, an adversarial relationship.

Overall, Gordon stated that the criticism of the West Bank courts goes overboard and that the system tries hard to treat Palestinians decently and to give them a fair trial.

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The head West Bank prosecutor said that one way that Palestinians are guaranteed a fair trial is the independence of the prosecution.

The prosecutor emphasized that his superior officer is the Magistrate Advocate General, who is effectively outside the regular military chain of command on all professional legal issues.

He added that he believed his job was to act on behalf of the general public who had expectations that most of the same democratic principles and norms would apply in the military justice system to Palestinians as well as Israelis.

Haviv Laviv and Gabi Lasky, both former West Bank court judges who have become leading defense attorneys for Palestinians disagreed.

Lasky said that she views her main job is to prevent injustice, discrimination and infringement of basic rights against her Palestinian clients.

She said that doing real justice is impossible because the Palestinians are a conquered people.

For example, often there is no right for Palestinians to demonstrate, noted Lasky, so even if the courts were fine, they can be trying Palestinians for action, like demonstrating, that should not be crimes in the first place.

Laviv said it takes significant determination to practice in the court system because he believes that Palestinians are treated completely differently.

He added that he was striving for the day when, if a Jew and a Palestinian each threw rocks at each other, they would be treated the same – something which he said is not currently true.

Talia Sasson, former head of the Justice Ministry’s the special issues division, agreed with Laviv and Lasky.

She expressed doubt about the claim that the courts and the prosecutor could be fully insulated from the rest of the army.

Sasson said that at the end of the day, they still took orders and were limited by the military commander of the West Bank, who was not a lawyer.

She also noted that it was impossible for judges and prosecutors not to identify more with “their” side than with the Palestinian side and this caused inherent bias in deciding who to believe when an Israeli soldier and Palestinian defendant contradicted each other.

Current head of the West Bank courts, Ahron Mishnayot, said that too often the debate about fairness for Palestinians was painted in shades of black and white.

He said that he works hard to make sure the courts view difficult challenges in shades of gray.

He complained that sometimes people’s “macro” perspective and biases would overwhelm their ability to look at facts, such as that the courts apply essentially the same rules of evidence and procedure as in the Israeli court system.

Where there are differences, he noted, they are mostly unavoidable due to the unique West Bank security situation or international law requirements that require Israel to have maintained some of the Jordanian laws in effect for the Palestinians prior to 1967.

International law requires that an army legally “occupying” another people [without addressing the political import of being an occupier] must make efforts to apply the law that had been in place prior to its taking control of the area.

Ironically, as the debate was reaching a heated point, it had to be left unresolved as the first Tel Aviv siren in 20 years rang out, and forced the conference to evacuate.
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