The Application of Israeli Law in Military Courts in the Occupied Territories

The occupied Palestinian territories were never formally annexed to Israel, but there has been a growing trend in recent years toward applying Israeli law in the military legal system in the territories. Advocates of this policy argue that because Israeli law incorporates advanced standards of human rights, adopting it protects the human rights of Palestinian defendants. The analysis in this article suggests that the human rights argument masks a larger and far more complicated process. The application of Israeli law violates the rights of Palestinian defendants to a fair trial as much as it allegedly promotes them. Because Israeli law is totally inaccessible to the defendants and to most of their defense lawyers, they are unable to use it to their own benefit, as the Israeli military prosecutors do, and are thus even less able to conduct an effective defense. Palestinian defendants and their lawyers are therefore completely excluded from the lively and enlightened discourse of the military judges, who seek legitimacy in the Israeli civil legal community. Although they are sent to judge another people, the military judges continue to seek acceptance among their own people through their judicial policies and their writing.

The application of Israeli law is part of a wider dynamic that signifies the abandoning of the notion of the occupation as a temporary situation. The article traces the evolution of this trend, first as a response to the first intifada, and then as an expression of disillusion with the Oslo Accords. This dynamic is leading toward de facto annexation and the creation of a single legal system under Israeli control. The partial and informal application of Israeli law in the military courts is part of the unique and colonial-like relations between the Israeli civil and military legal systems, in which the military system is excluded as different from and external to Israeli law but at the same time is included within it.