Deliberately or not, it's a military prosecutor who has underscored that a new Israel Defense Forces draft refusal affair is founded upon a substantive, normative debate. Captain Yaron Kostilitz, the military court prosecutor in a trial of six draft resisters, said the following on September 18 in his cross examination of Hagi Matar:
"You and your associates have for hours forwarded foolish claims, and submitted a deceitful, defamatory indictment of IDF activities; the sad thing is that not only has the Supreme Court of Israel never said that activities undertaken each day by the army are illegal, but it has also affirmed that these actions are entirely legal, and adhere to laws of the state and of the international arena."
Kostilitz summed up his understanding of what the Supreme Court has in recent years authorized:
"The Supreme Court examines IDF activities in Judea, Samaria and the Gaza Strip, and rules that they are legal. The Supreme Court has determined that it is permissible to demolish houses in which terrorists lived, that an army commander [in the territories] is obligated to protect the welfare of settlers, that the code of law which applies to Jewish residents in these areas differs from the law of other [Palestinian] residents...The Supreme Court has authorized the use of selective assassinations...and the uprooting and pruning of olive trees in order to prevent terror attacks...The Supreme Court has found that administrative arrests are legal; the Supreme Court has determined that the IDF acts in accordance with international laws which relate to warfare and the occupation of territories."
Most of the items on Kostilitz's list are accurate. One inaccuracy applies to the issue of selective assassinations - in a High Court action on this issue, three judges found that the topic cannot be assessed in the courtroom. The Supreme Court is currently reviewing an appeal of the assassinations policy submitted two years ago by the Public Committee Against Torture in Israel, and by LAW, the Palestinian Society for the Protection of Human Rights and the Environment. The judges have yet to determine whether the assassinations are a legal policy.
Perhaps the fact that the court has never issued a restraining order on the assassinations is construed by Kostilitz as an affirmation of their legality.
One detail on the military prosecutor's list is conspicuously out-of-place. The imposition of one set of laws on settlers, and of another set of laws on Palestinian residents of the same territories which is ruled by one sovereign force (the IDF), is not an issue related to warfare and emergency situations. The issue is as old as the occupation. It translates as civil law for one man, military law for another, development in one place, expropriation in another, construction in one area, demolition in another, civilians here, subjects there.
Asked by Haaretz to clarify which legal ruling Kostilitz referred to in his remarks about separate codes of law in the territories, the IDF Spokesman said:
"Law which applies to the Judea and Samaria region is what was valid when IDF troops entered it [i.e., Jordanian law], along with security rules which IDF commanders in the region have issued over the years ... As a rule, this law applies in all parts of the region, including its Jewish settlements."
"In addition, IDF commanders in the region have issued orders that apply only within the Jewish communities, and that mainly regulate municipal issues (such as election for local councils, the collection of local taxes, etc.)."
"In addition, citizens of Israel who live in the area are also subject to certain articles of Israel legislation which, by the Knesset's designation, apply personally to Israelis who live in the region. Thus, among other things, Israeli criminal law applies to these persons."
Attorneys from the Association for Civil Rights in Israel and B'Tselem investigators are unable to think of a court ruling which stated expressly that such separations between two legal systems in the territories is legally valid. In fact, legal double standards have gone into effect in the territories. And that isn't exactly consonant with international law, which prohibits the settlement of citizens of an occupying country in conquered territory, and which certainly doesn't applaud systematized inequality.
No matter how deviant it appears on Kostilitz's list, the fusion of legal double standards with military measures cited in the quotations above is logical: these, and other, less drastic, military measures are required to guarantee the perpetuation of a two-sided legal system inherent in circumstances of conquest and settlement. On the other hand, Kostilitz's reliance on international law shows that army officers accept that "laws and authorization" need to have universal validity. But can upholding two codes of law, one for Jews, the other for Palestinians, really have such validity - has the existence of two sets of laws, based on principles of ethnic, class or gender division ever enjoyed such validity in other places and times? In South Africa before 1990, in the U.S. before the abolition of slavery, in European states before franchise rights were extended to members of all classes, or in other such cases? If these, too, were systems of law that had substance and validity, how is it that they came to an end?
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