Courts And Nonviolence

Jonathan Kuttab     Al-Hayat     2003/07/23

The issue of appealing to Israeli courts has been a controversial one in Palestinian circles since the beginning of the Israeli occupation in 1967. Some saw it as giving legitimacy to such courts, which were clearly Zionist in their orientation and decisions. Others saw in such appeals a futile exercise in placing ourselves at the mercy of our oppressors. The local proverb was "If your opponent is your judge, to whom you can bring your complaint?"

This point of view had great merit, particularly in light of the fact that Israeli jurisprudence followed the positivist theory, which was built on following the literal text of the laws, in a country where there was no overarching constitution allowing someone to challenge the constitutionality of a law or military order under superior notions of justice. The Israeli occupation had taken full advantage of this by making sure that all of its actions were covered by military orders, over 1000 in number, which contained broad language that gave military commanders wide authority, and which the courts did nothing to restrict.

For this and other reasons that we cannot discuss at length here, Israeli courts obtained a bad reputation among Palestinians, particularly the Supreme Court, although a number of Israeli lawyers (both Arab and Jew) managed to extract some important decisions from that court. A number of peace and nonviolence activists managed to develop a strategy based, in part, on threats of appealing to the Supreme Court, and even going to it, to restrain some of the worst excesses of the occupation, to gain time until political pressure could be brought, or to embarrass the Israeli rulers and the Israeli legal system itself through bringing carefully prepared challenges before the courts.

In addition, with the creation of an International Criminal Court (ICC), the importance of appealing to the Israeli courts increased since the ICC requires that the applicant exhaust local remedies before it looks into war crimes and crimes against humanity.

Palestinian use of the courts has, therefore, become a practical model for illustrating one of the fundamental principles of nonviolent resistance, which is based on challenging the opponent morally on the basis of principles and ethical modes that the opponent himself claims to respect. Thus, the principles the opponent (Israel) boasts of, and which he uses to garner sympathy and international support and legitimacy, are turned into restraints and obstacles to the unfettered and excessive use of superior military force against the hapless Palestinians.

One example of the use of this strategy is the case of torture against Palestinian detainees. Israeli and Palestinian human rights organizations like BTselem, and Al Haq waged a long struggle documenting and revealing the methods of torture and interrogation used in Israeli jails and detention centers. With increased recognition and international admission that torture does in fact occur, there was an increase in pressure to end it.

The official denial that such torture occurs created an embarrassment for the Israeli authorities that needed to justify before its own courts the conviction of Palestinians when the main or even sole evidence against them was confessions extracted under torture.

At first, Israeli interrogators systematically lied under oath concerning their methods of interrogation, but as such testimony began to lose credibility, and such lies could no longer be sustained, the Landau Commission, set up to deal with this issue, recommended allowing interrogators to use psychological pressure and moderate physical pressure to obtain confessions, without having to lie under oath concerning their interrogation methods and the voluntariness of confessions extracted by them.

The Landau Commission Report had a secret appendix detailing the permissible methods to be used, particularly in dealing with imminent dangers labeled ticking bombs. However, international pressure continued to increase as most observers saw moderate physical pressure as synonymous with torture. This led to a spate of appeals to the Supreme Court concerning specific methods of interrogation requesting that the Supreme Court openly declare whether it considers such forms of torture permissible under Israeli law.

The Supreme Court attempted to evade such petitions, and for years they lay unanswered on the judges desks. Eventually, some activists began to hint openly that such judicial complicity in torture may itself constitute a war crime, and that the President (Chief Justice) of the Supreme Court, Mr. Barak, might find himself served with indictments as an accessory to the crime of torture. Following these declarations, the Supreme Court finally issued a landmark decision that torture is indeed illegal under current Israeli law, and that if politicians and members of the Knesset felt it was permissible, they should pass legislation permitting it in certain cases and outlining the criteria and circumstances under which it can be practiced legally by the Secret Services. In this fashion, the Supreme Court avoided being implicated in authorizing torture, and placed the ball back in the court of the Knesset.

What interests us, in this case, is that appealing to the Israeli courts was effective because it came as part of a concerted campaign of political, media, and international action that embarrassed the Israeli authorities before their own courts, in accordance with their own declared ideals (and not necessarily international standards of human rights). It also placed before them the dilemma of either ending torture or publicly legalizing it and facing the consequences of international opprobrium and isolation.

The success of the strategy of appealing to the Israeli courts requires finding the careful balance between our skepticism of such courts (a skepticism well justified by the history and precedents of such courts) and our willingness to understand the legal and mental framework of such courts, and using that understanding to obtain good results in our legitimate struggle for peace and justice.

This is done by dovetailing legal activism with popular and media campaigns that nonviolently challenge the courts as a major component of the racist and oppressive system, which cannot live with the reality and consequences of that oppression. This by itself is a major component of nonviolent struggle, a struggle that opposes oppression, while appealing to the best elements that exist in the heart of every oppressor, without compromising our principles, but with a firm determination and faith in a moral confrontation it hopes will be joined by others, even, if possible, the enemy himself.

* Jonathan Kuttab is a Jerusalem-based Palestinian human rights lawyer and peace activist.

* This article is part of a series of views on nonviolence published in partnership with the Common Ground News Service (CGNews).