A fascinating legal lens on the Israeli-Palestinian conflict

Defense lawyers face difficult decisions related to the scope of their representation. One of them declined to represent the 16-year-old man accused of murdering five family members.

By DAPHNÉ RICHEMOND-BARAK
Ahed Tamimi (second right) celebrates with friends at her family home in Nabi Saleh in July 2018 after her release from prison. (photo credit: RANEEN SAWAFTA/ REUTERS)
Ahed Tamimi (second right) celebrates with friends at her family home in Nabi Saleh in July 2018 after her release from prison.
(photo credit: RANEEN SAWAFTA/ REUTERS)
Yonah Jeremy Bob’s groundbreaking book, Justice in the West Bank? The Israeli-Palestinian Conflict Goes to Court, is serious writing that addresses a highly controversial and politically sensitive matter, and yet it reads like a screenplay.
Early in the book, Bob, The Jerusalem Post’s intelligence, terrorism and legal analyst, introduces us to the cast: former IDF chief West Bank prosecutor Maurice Hirsch, who immigrated to Israel from South Africa at the age of 23; Merav Khoury, Gaby Lasky and Nery Ramati, who work as defense attorneys for Palestinians; and former West Bank courts chief justice Aharon Mishnayot, who served from 2007 to 2013. Via their experience and interpersonal relationships, Bob tells the previously untold story of how these unique courts came about, and brings them to life for the reader in all their complexity. As a lawyer (who served in the IDF legal division) and a journalist, Bob brings first-hand knowledge and a balanced perspective to this timely study of the courts.
Israel established the courts following its takeover of the West Bank from Jordan during the Six Day War, in order to maintain public order and administer justice in the area. The military judicial system has been in place since 1967 – a record for such courts – and consists of two main courthouses located in Ofer and Salem. The courts generally attract public attention when they put Palestinian terrorists on trial, but they also handle stoning attacks, civil unrest, unlawful entry into Israel, and property offenses. Palestinians can appeal decisions of the West Bank courts to the Israeli High Court of Justice, though the latter does not form part of the military system.
The West Bank courts have sentenced the mastermind behind the kidnapping and murder of three Israeli teenage boys in 2014, the murderer of Ezra Schwartz in 2017, and poster-child Ahed Tamimi in 2018. It is before these courts that the case of Palestinian Khalil Yusef Ali Jabarin is currently pending for the killing of Ari Fuld in 2018.
Each high-profile trial brings with it a plethora of dilemmas for the protagonists, which Bob vividly exposes in the book.
Defense lawyers face difficult decisions related to the scope of their representation. One of them declined to represent the 16-year-old man accused of murdering five members of the Fogel family in Itamar. Dilemmas also repeatedly arise concerning the treatment of children who commit deadly acts of terrorism.
In one of a series of exclusive interviews, IDF chief West Bank Prosecutor Lt. Col. Maurice Hirsch told Bob, “It is impossible to be immune to the human feeling that in some instances these kids simply don’t understand what they are doing.” Bob devotes significant attention to this important issue, particularly to the recent creation of a juvenile military court to try Palestinians under the age of 18.
Bob tackles another major point of contention in the administration of justice in the West Bank: the withholding of classified evidence from defense lawyers in administrative detention proceedings. Administrative detention refers to the Israeli practice of holding Palestinians in custody prior to their indictment. Israel typically holds individuals in administrative detention as a preventive measure when it believes they pose a risk to security.
As part of this process, the prosecution shares information about the accused with the judge behind closed doors, how the detainee’s counsel is not present and therefore unable to verify the evidence brought by the prosecution. The judge becomes the de facto advocate of the accused, blurring the roles and potentially compromising judicial impartiality. Bob succeeds in conveying the feeling of frustration that the withholding of evidence elicits among Palestinians, and the security concerns Israel raises to justify it. The courts, he writes, symbolize “order and security for the Israeli side and occupation and oppression for the Palestinian side.”
The screenplay then takes a turn for the worst, fully immersing the reader in what Bob calls the “gray zone.” The courts embody a microcosm of coexistence between individuals with strong and often radically different beliefs, who work together and yet unavoidably clash with each other. They clash over whether to rearrest convicted terrorists released as part of the Gilad Shalit deal, or award punitive damages in cases of terrorism. In a landmark case, the West Bank courts awarded monetary damages for the first time in 2014 to the family of the victims of a lethal rock attack.
Bob’s insightful account of the tensions inherent in the administration of justice in the West Bank is a must-read for anyone interested in understanding the reality of the Israeli-Palestinian conflict. Protagonists at the court live the conflict day in and day out, and Bob takes the reader through the deep, personal and intimate dilemmas they face in their search for justice. Human and legal aspects strikingly come together in this in-depth and multi-faceted exploration of the courts.
The writer is assistant professor at the Lauder School of Government, Diplomacy and Strategy at the IDC Herzliya, and senior researcher at the International Institute for Counterterrorism.