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.
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.