Cause lawyering in transnational perspective: National conflict and human rights in Israel/Palestine

Law & Society Review, 1997 by Lisa Hajjar

The situation in apartheid South Africa provides a salient contrast. There, cause lawyering exhibited a coherence of cause which included not only organized resistance to the racialized politico-legal order, but also a transcendent vision of a democratic future (Abel 1995; Ellmann 1992). Among lawyers working in the Israeli military courts, there is no such shared vision about the desired course of political change or common aspirations about the future of Israel/Palestine. Analytically and politically, the contrast illustrates the difference between lawyers working for a cause of national proportion or significance, and those working in a transnational context.

In South Africa, the politics of sovereignty provided an organizing framework for resistance because the state was not only a target for change but a goal. Cause lawyering strategies were coordinated with a larger political movement to reform existing governing structures and to remake the sociopolitical order into an inclusive democracy. In a transnational context, resistance can involve reformist strategies to alter existing governing practices, and counterhegemonic forms aiming to reconfigure government entirely. In Israel/Palestine, both are in evidence. There are movements oriented to the goal of a two-state solution, and others adamantly opposed to such an option. There are movements to democratize the Israeli state by transforming its ethnonational character and others that seek to expand the provision of civil liberties under the existing order. Consequently, when it comes to cause lawyering in Israel/Palestine, the relationship between politics and law reflects a political terrain where consensus on anything is hard to find.

B. The Military Court System

The military court system is a rather unique institution in that it is one of the few contexts where Israeli citizens and Palestinian residents of the territories have had regular and sustained contact. The system was established in 1967. Its authority and jurisdiction extends from the Israeli military government in the territories, which is part of the Israel Defense Forces (IDF) (Shamgar 1982a). However, the IDF's authority in the territories derives from the duties inhering in an occupant, as set out in international humanitarian laws (i.e., laws of war).15

The courts are manned by soldiers. Judges and prosecutors, virtually all of whom are Jewish Israelis, include both career soldiers and reservists.16 Translators, most of whom are Druze Israelis, are essential to the functioning of the system, given the language barriers between Hebrew-only and Arabic-only speakers.

The defense lawyers who work in the military courts include Jewish and Arab Israeli citizens as well as Palestinian residents of the territories. In addition to these politico-legal status distinctions, lawyers' legal skills and education vary, in part along lines of identity: most Israeli citizens were educated in Israeli faculties of law, while most Palestinians from the territories were educated somewhere in the Arab world (primarily Egypt and Lebanon).17 These differences are so significant as to make it impossible to regard military court lawyers as a cohesive group. However, they do constitute a category because they perform a common role: they all represent Palestinian clients.