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The Powers of Israeli Courts in the Occupied Palestinian Territories: CrimC (Jer.) 22/07 IDF Commander in the Judea and Samaria Area v. Bareli (Decision of December 12, 2007)
Court Watch | 22/07 | 9.1.2010 | Adv. Yossi Wolfson
The bizarre case of retired judge Shlomo Bareli demonstrates how deeply involved the Israeli court system is in Israel’s annexation project in the West Bank.

The story begins with two dogs that were walking without a leash – so it was alleged – in the settlement of Ma’ale Adumim in July 2006. We do not know what exactly is alleged against Bareli, but let us assume that the dogs were his and that the retiree was going for a leisurely evening walk with his two dogs. In the real world, this may well have been an innocent walk, but in the legal world, it was the beginning of an entanglement.

In the real world, this may well have been an innocent walk, but in the legal world, it was the beginning of an entanglement

Imagine a courtroom. It is the Jerusalem Magistrates’ Court in the heart of West Jerusalem. It is the courtroom of an Israeli judge who permanently sits there. There are also a prosecutor and a defendant in this courtroom. The prosecutor is probably an Israeli attorney and the defendant is also Israeli, in fact, a retired Israeli judge. A person entering the room would imagine the defendant is suspected of breaking the laws of the State of Israel. Illusion. Legally, this is not a court in Jerusalem – the judge is presiding over the case in her capacity as a judge of the Court for Local Affairs in Kiryat Arba [a settlement in the Hebron district]. It is not a court of the State of Israel: it exists pursuant to a military order signed by a military commander, who imbibes his powers from the law of occupation in international law. Formally, the judge’s appointment to the case is not made by a decision of the Judges Election Committee, but through authorization by the military commander. The prosecutor is not representing the attorney general (as is the norm in criminal cases inside Israel), but the commander of the Israeli military forces in the Occupied Palestinian Territories (OPT). The law according to which the trial is conducted, apparently a Ma’ale Adumim municipal bylaw, was not enacted pursuant to powers granted to the municipal government by the Knesset, but rather to powers granted to it by the military commander. In fact, local courts in the OPT, whose judges are Israeli, often judge offences under Jordanian legislation!

How did this innocent dusk walk turn into an episode in which a military commander charges a retired Israeli judge in Jerusalem?

Well, a Ma’ale Adumim municipal inspector reported Mr. Bareli and gave him a fine alternative for two dogs running at large without a leash or a muzzle. Bareli filed an application to cancel the report and the matter was to be decided in the Court for Local Affairs in Ma’ale Adumim. The case looked like every other case which may have come before the Israeli judicial system. The offence under the bylaw is no different than offences under other bylaws in other cities; the mechanism for imposing a fine is identical to any place in Israel, the Ma’ale Adumim local court appears in the list of Israeli courts on the website of the Israeli judicial system. The judges presiding are Israeli judges who were appointed by the Judges Election Committee which operates pursuant to Israeli law. All the actors, with the possible exception of the dogs, are Israeli citizens.

Nevertheless, there is a difference: Ma’ale Adumim is not in Israel. It is a settlement in the West Bank. Israel never wholly applied Israeli law to it. Life under Israeli law in Ma’ale Adumim is carried out using hidden mechanisms, the most important of which, in our case, is the Local Councils Protocol which was enacted under the Order regarding Administration of Local Councils (Judea and Samaria) (No. 892) 5741-1981. This protocol, which is part of the military legislation in the OPT, applies Israeli local law to the settlements using “copy-paste”. The military updates the protocol from time to time in accordance with legislative amendments in Israel. Among other things, this military order establishes the settlement’s local courts and grants the Israeli district courts authority to review appeals against the decisions of these courts. A military officer grants Israeli judges special powers to serve as judges in these locals courts, which, technically, are not Israeli courts at all but courts of the OPT.

The Israeli courts have become accustomed to operating without clear boundaries to their area of jurisdiction. The Green Line is just a technical contrsaint, with various mechanisms created to efface it from Israeli daily life on both sides of the border

Bareli’s case was to be reviewed by this Israeli-non-Israeli court. However, the judge who was to preside over the case recused himself due to his acquaintance with the retired judge. The second judge in the court was also disqualified, being Bareli’s neighbor. The case – a criminal case in the OPT, let's not forget! – was transferred to the president of the Supreme Court of Israel for her to decide which court would review it. The president transferred it to the Magistrates Court in Ramla – in the heart of Israel. The Israeli justice system has become so accustomed to the de facto annexation of the settlements to Israel that the president of the Supreme Court did not think twice about transferring the case from one side of the Green Line border to the other. However, the Ramla court judge did notice the difficulty and disqualified himself since he lacked authorization by the military commander in the OPT. After all, the source of the authority for trying the case is the law in the OPT, not Israeli law! The case was then returned to the president of the Supreme Court who transferred it to the Jerusalem district, a district where, as it is close to the Green Line, there are judges who received an appointment from the military commander in the OPT. One of them is Judge Malka Aviv, who, as well as being a judge of the Jerusalem District Court is also a judge of the Kiryat Arba Court for Local Affairs. However, the secretariat of the Jerusalem Magistrates Court, which was also insufficiently sensitive to the forgotten distinctions between the territory of the State of Israel and the occupied territory, registered the case as a Jerusalem Magistrates Court case. But the Israeli Magistrates Court has no power to review unleashed dogs running around in the West Bank… Add to that the restricted number of days allotted to Judge Aviv in Kiryat Araba: could she review this OPT case while presiding inside Israel? Can a court whose source of authority is OPT legislation sit inside Israel? And what about Basic Law: The Judiciary which stipulates that judicial powers are given in Israel only to courts established through Israeli legislation?

Judge Aviv took the bull by its horns and ordered to change the registration of the case such that it is registered as a Kiryat Arba Court for Local Affairs case. She rejected all preliminary arguments out of hand. She ordered the hearing take place in her courtroom in Jerusalem with her presiding in her capacity as judge of the Kiryat Arba Court for Local Affairs. It is difficult to say she erred on any substantive aspect: the dogs’ free excursion did not justify the legal saga of passing the case from one judge to the next ad infinitum.[1]

And still, the affair leaves a bizarre aftertaste. It illustrates just how much the borders between the OPT and Israel have become blurred, and just how much the Israeli courts have become accustomed to operating without clear boundaries to their area of jurisdiction. The Green Line is just a technical constraint, which various mechanisms were created to efface from Israeli daily life on both sides of the border. In rare cases, such as Bareli’s, a flaw is discovered in the operation of these mechanisms, but this flaw too is corrected by a judge unwilling to give in to pedantic formalism. The reality is one in which Israeli law is applied to Israeli settlers and settlements in the OPT in a wholesale manner. The status of the OPT as occupied territory under military rule, in this context, turns into complete fiction which begins and ends with the title of the prosecutor (the military commander rather than the State of Israel) and the double publication of Israeli legislation in both Israel's and the OPT's official gazettes. The Israeli courts and their administrative offices operate in the settlements as if these were a veritable part of Israel and they are entirely complicit in the OPT annexation enterprise (inasmuch as it applies to settlements and settlers), while the Palestinian population remains under military rule.

Adv. Yossi Wolfson
The author is a lawyer and an activist for human and other animals' rights. Formerly on staff at HaMoked: Center for the Defence of the Individual.

The progression of the case is delineated in Judge Aviv’s decision; see CrimC (Jer.) 22/07 IDF Commander in the Judea and Samaria Area v. Bareli, decision of December 19, 2007. (02) 627 1698   (02) 627 6317

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