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

Law & Society Review, 1997 by Lisa Hajjar

Dealing is an individualizing process where the contents of a single case (evidence, history of past convictions, etc.) largely determine defense-prosecution negotiations over the outcome. The practice of plea bargaining, which constitutes the vast majority of lawyers' legal work in this system, undermines lawyers' abilities to use the legal process itself for political ends (e.g., presenting arguments challenging the state's authority in general or some aspect thereof). But the legal process narrowly defined neither encompasses nor explains how many defense lawyers perceive their work. While most lawyers do not believe that political change would or could come from within the legal system-in large part because the prevalence of dealing-they do see their roles and activities in political terms. Most ascribe their motivation for working in the military courts to the desire to be politicized legal practitioners.

The military court system has always functioned as an institutional intersection in the conflict. During the period of the Palestinian uprising against the occupation, which began in December 1987 and lasted through the early 1990s, Israeli-Palestinian relations reached new levels of violence and repression. Tens of thousands of Palestinians were drawn into confrontations of various kinds with the Israeli military, many for the first time. Israeli measures to contain and stop the resistance included a vastly expanded use of the military courts.

The uprising had a transformative effect on cause lawyering. In addition to the chaos caused by the flood of cases, countless people with no previous experience or preexisting knowledge of the legal system were being arrested, interrogated, and charged. Many lawyers with long-time experience made sharp negative comparisons between their "uprising clients" and the types of people they had represented in the past, who were more politically seasoned, aware of the legal costs of resistance, and willing to pay the price for their activism. Whereas prior to the uprising, defendants were often organized along the factional lines of the Palestine Liberation Organization (PLO) and certain lawyers regularly represented people from one faction or another, when the uprising started, these lines became blurred (see Hiltermann 1991; Nassar & Heacock 1991). And by the end of the 1980s, Islamist activists affiliated with Hamas and Islamic Jihad (which are not part of the PLO) were being arrested in increasing numbers. Since Islamist militancy gained prominence only during the uprising, there were virtually no prestanding arrangements for legal representation. Lawyers stepped in to meet the demand, but secular/sectarian political differences added a new potential for tensions in lawyer-client relations. Nevertheless, for all intents and purposes Islamists shared at least the short-term political goal of secular activists: ending the occupation.

The legal terrain was also affected by the uprising. The escalating demand for legal services drew some 200 additional Palestinian lawyers into military court work, many for the first time. While plea bargaining remained the strategy of choice and necessity, the variations in skills, experience, and political views were sources of tension among lawyers and between lawyers and other categories of participants.