The military court in Nablus. An ugly, dirty, dark building. As soon as I was inside I felt a need to contract, make myself small, to keep from touching other objects; the windows are broken and filthy. Through the spiderwebs one can make out the silhouette of barren Mt. Ibal, the mountain of the curses. Outside, storms frequently cut off the electricity, and in the dark it is sometimes hard to see the justice being done here. I enter the courtroom in the middle of a trial. The accused—a skinny boy with a scarred face—is charged with membership in an enemy organization. The defense attorney summarizes his arguments. He recalls that the boy merely expressed interest in joining the Fatah, and did not actually become a member, and furthermore, he is sick, his knees jut forward, from birth, your honor, stand up for a minute so they can see, here, and his father is over there, your honor, he would like to say something, he promises to be responsible for the behavior of the boy in the future, there’s no time, your honor? So if the father can only stand up, so you can see what kind of person he is.
From among the public benches the father rises. A man of about fifty, short, with a wrinkle-lined face. He crumples his hat in his hands. Takes a hesitant step forward, and slowly, slowly, raises his eyes to the judge, as if laying out before him a complex and delicate exhibit for the trial, and actually, his face is all he has to exhibit in his defense: his son’s guilt is absolutely clear. A stupid and simple boy, the father’s face says, perhaps your honor also has young children and he knows how it is with them, the face murmurs, and I can see that even the judge has been caught up in the fear of that expression.
He may be seated.
He sits down beside his overgrown wife, thick of limb, whose lips mutter unceasingly. The rest of the family look frozen at the judge, hanging on his words. The father’s face calms little by little.
The military judge, Major Yair Rabinowitz (himself once a military prosecutor), sentences the accused to four months in prison, with a one-year suspended sentence in force for three years. The defendant goes to prison, throws a smile of relief at his brothers, not at his parents. He is surprised at the leniency of the punishment. The mother looks at the father in agitation and bites her lips: four months!
Next case.
When lawyer Leah Tsemel arrives at the parking lot opposite the military court in Nablus, her clients pounce on her car, besiege her in fear and supplication, thirsty for the news she brings. In her office in East Jerusalem, in a broken house with a shattered roof, Arabs whose actions have brought them, or members of their families, up against the Israeli judicial system wait for her from the early morning, confused and ignorant of their rights and obligations and what is going to happen to them. The office teems with people, mostly villagers, who sit there for hours, and who greet Tsemel with awe. She is a small woman, always smiling, resolute in her speech, most extreme in her opinions, sympathetic and honest. She conducts several conversations at once with all those massed around her, speaking with them in excellent Arabic with an unmistakable Jewish Ashkenazi accent, chain-smoking, arguing over the telephone with police investigators who are preventing her from seeing a client of hers in jail, curses, forgives, puts on glasses missing one sidepiece, sets out on her way, to Nablus or Ramallah. The high energy she exudes threatens any calmer beings close by with adrenaline poisoning. Something else ought to be noted: in her relations with Arabs there is something you don’t come across very often—straightforwardness and equality, without a trace of sanctimony; she places herself neither above nor below her clients, and there is no soft and self-effacing paternalism. Very rare.
And now—the trial of Jafer Haj Hassan, accused of having made contact with an enemy organization.
He is different from the prisoners shut up in the small, filthy confinement room. He stands tall and has delicate features. His movements are moderate and quiet. The prosecutor explains the charge: a few years ago Hassan asked his father for a sum of money in order to study in Germany. His father applied to a friend of his, a Fatah member in Jordan, and asked for assistance. Jafer Haj Hassan did not receive money but did receive a scholarship to study German in Germany. After half a year’s work, he decided that he did not want to study German and changed his field. His patron in the Fatah told his father that the organization would support him only if he pursued a subject of some benefit to the organization. He refused—and his scholarship was immediately revoked. Hassan remained in Germany several years, with no links to terrorist organizations, married a German woman, and then came home. A week later he was arrested. He has been in the Nablus prison for forty-four days. A security detainee.
Forty-four days. They did not beat him there, he tells me afterwards; the treatment was reasonable. Even so, he says, do you know what forty-four days in jail is? Previously, he had not been involved in politics at all. Did not even know what it meant to be a Palestinian. One may assume that in prison he learned something. Forty-four days. A trimester course in national consciousness.
* * *
The judge listens to the prosecutor’s arguments. He wears a knitted kipah and has a pleasant face. He also has a businessman’s black swivel chair, which may be moved in any direction, and which may be bent backward, rising and falling with ease. The prosecutor, a young officer in the standing army, enumerates the charges. The room is dim. Uniformity is congealed on the faces of the reserve soldiers guarding the courtroom, on the face of the prosecutor, the translator, the woman soldier-stenographer. Only the judge rocks back and forth on the raised platform. For a second, his head disappears entirely behind his desk. The court holds its breath. Then he sweeps up slowly, raising with him an interesting argument: from the charge, it would seem that the suspect never had real, active contact or connection of any sort with a terrorist organization. There was never any direct connection between them. He maintained—so to speak—contact with his father. What is wrong with that, the judge asks. After all, it was his father—who is now in Jordan—who had made the contact, etc.
The prosecutor, lacking a little experience, here makes a mistake and does not accept the hinted advice of the judge. He sticks to his arguments: the accused should have distinguished between those conversations with his father regarding family matters and those regarding terrorist organizations. The translator—a heavyset Druse soldier with no expression resident on his face—had some time ago ceased to translate the proceedings for the accused. He picks his ears with his finger, whispers something to the stenographer, and again sinks into a deep vegetative stupor, accompanied by additional unconscious bodily movements. The relatives of the accused gaze at him in supplication: he is their sole connection with what is being said, but he has become habituated to them and pays no attention. Only an angry admonition from the judge brings him back to life: he resumes translating for several minutes, and then, little by little, is reabsorbed into that addicting oblivion.
Defense attorney Tsemel rises from her seat and protests the use of the term “terrorist organization.” The judge asks to hear the reason for her objection. Tsemel reminds him that British law calls it a “proscribed association.”
The judge: But the term “terrorist organization” has been used here for years!
Tsemel: That’s because of Mehahem Kornwitz, the prosecutor who was from Gush Emunim. He changed the term at his own initiative, and suddenly all the charge sheets were filled with “terrorist organizations.” So, inevitably, every accused person is a “terrorist,” and that, of course, influences the judges in making their decisions.
The prosecutor (slightly mocking): And Madam, of course, has not come to terms with that distortion.
Tsemel: Correct. I have refused on principle to accept charge sheets in which the term “terrorist” is used. Judges have always conceded me the point, but I did not want only consideration.
The judge: So what did Madam do?
Tsemel: I applied to the chief counsel in the territories and asked that he instruct prosecutors not to use the term “terrorists” when drafting charges.
The judge (amused): And what, Madam, was the counsel’s answer?
Tsemel: He said that I am right, but did nothing. For a year and a half I have been sending him requests. Just this week the corrective instruction arrived, and I demand that from now on it be adhered to with care.
The judge: As far as I’m concerned, it can be called a “charitable organization.” The prosecutor will now continue to relate the accused’s connections with the Salvation Army.
The accused understands neither the amused trialogue nor the reading of the charge sheet. No one explains to him what is being said. He is caught in an incomprehensible nightmare and does not know how it will end. His situation is, however, better than that of an ordinary defendant here, because most of them who arrive in the courtroom have already confessed their guilt at an early stage, while being interrogated by the security service. In 95 percent of the cases, the defense attorney is forced to satisfy himself with bargaining over the severity of the sentence, rather than over whether punishment should be imposed on his client in the first place.
Here, however, the charge sheet may be disproven easily. The judge is also aware of this, and he wavers out loud: Is maintaining contact with his father sufficient to convict the defendant?
The prosecution and defense finish their presentations. The judge withdraws to his chambers. The prosecutor, the defense attorney, and the translator wait for him in one of the secretarial offices of the court. The place is humming with young men and women soldiers, who while away their military service here. Several of them are currently sprawled on a pile of mattresses, chatting. The walls are decorated with cutouts from an Israeli teen magazine and with the same pseudo-clever posters which hang in every army office: “The Lazy Man’s Ten Commandments,” “Today Is the First Day of the Rest of Your Life.” To think that they serve three years of life experience and routine here, organize going-away parties (“And from all of us success in civilian life, and don’t forget us”), to think that here they fall in love.
“He has to free him,” Leah Tsemel erupts. “It shouldn’t be open to question. The matter is completely clear!” The prosecutor, young, blond, and bearded, smiles with a sort of strange wisdom, older than his years.
Both he and she know that the decisive majority of trials in the military courts in the area end in conviction. They both know that the defendant—if convicted—will not be able to appeal the judgment, because in the “territories” only a single level of courts functions, hearing every kind of case, without any appeals court above it. There is always tension between the civil jurists and the military people dealing with the law: the army, of course, prefers to see the court as part of the executive arm of the military. The regulations regarding the legal handling of prisoners reflect this: in the “territories,” a suspect may be held prisoner without a court order for eighteen days (in Israel, no more than forty-eight hours); in Israel, the police must allow the defendant to meet his lawyer as soon as possible, within, at the most, forty-eight hours. Under the military government, the court responsible for the prison may delay the meeting between the prisoner and his lawyer for as long as it cares to.
The judge still wavers.
I recall the George Orwell essay “Shooting an Elephant.” Orwell, while serving in the British Army in Burma, is drafted by a Burmese mob to kill a giant elephant in heat. As he strides toward the elephant—pressed by the expectations of the crowd—he first understands that he may not be as free to decide his own actions as he thought beforehand.
* * *
In his chambers, the judge delves into the case of Jafer Haj Hassan. Hundreds of thousands of inhabitants of the West Bank and Gaza have, as defendants or as relatives of defendants, passed through the military courts of Israel. They have waited in the mildewed corridors, have raised frightened and confused glances at the judge determining their fate and the fate of their families; have listened without comprehending to the defense and prosecuting attorneys bargaining in the hall over the severity of the punishment to be inflicted. There is not, it seems, any way to impose security and order in these areas without military courts, but there must be a way to make this massive friction between Israelis and Palestinians more honorable and tolerable, and minimize the hate as much as possible.
The judge still wavers.
Orwell says: “And suddenly I realized that I should have to shoot the elephant after all. The people expected it of me and I had got to do it; I could feel their two thousand wills pressing me forward, irresistibly. And it was at this moment, as I stood there with the rifle in my hands, that I first grasped the hollowness, the futility of the white man’s dominion in the East. Here was I, the white man with his gun, standing in front of the unarmed native crowd—seemingly the leading actor of the piece; but in reality I was only an absurd puppet pushed to and fro by the will of those yellow faces behind.”
The judge’s chambers are still closed.
Because there is a catch.
Catch-44.
Since the defendant, Jafer Haj Hassan, had already spent forty-four days in prison, the judge faced a serious problem. Can a military court of an occupying power admit that the military government of the occupation made a mistake? And how will that influence its authority, esteem, and power in the eyes of the inhabitants?
Everything depends on the answer to this question.
Perhaps it is because of this question that the judge has been wrapped up in himself for two whole hours.
Here. He returns.
All rise!
The judgment: I sentence the defendant to forty-four days in prison. The crime: bringing money into the area in violation of section 2a-1.
The defense attorney does not believe her ears. Even the prosecutor smiles uncomfortably.
This requires a brief explanation. After two hours of uncertainty, the judge has decided to convict the defendant of a new charge not included in the original charge sheet! The law establishes that such a conviction (“a conviction without informing the defense counsel that the defendant is liable to be convicted on this charge, and without giving the defense counsel notice of intent to convict on this section”) is directly contrary to section 23 of the order on security regulations. In a case in which the court revises the list of charges, it must (according to the same order) “allow the defense counsel to postpone the hearing or reexamine the witnesses, before the court may continue with its judgment.”
None of these things was done here.
And note well: the accused did not bring money into the area. He received a scholarship. That is, a benefit. In Germany. And Germany is not in this area.
All rise!
Catch-44 is a combination of two Catch-22s.
One of them says something like this: If his honor the judge acquits the defendant on all charges, the inhabitants of the “territories” may interpret this as weakness. His acquittal is liable to call into question the sensitive system of relations between the inhabitants and the government authority, and riots, demonstrations, and so on may break out. General and personal security will be put in danger, and the defendant himself is liable to find himself in prison in the wake of a general escalation of tension, which may sweep him along with it. So that if he is acquitted, he is liable to be arrested.
The other catch is this: If his honor the judge imposes a punishment of forty-four-day imprisonment on the accused, the inhabitants will understand immediately that the occupying power cannot allow itself to appear in error even in an unimportant case like this one, and this implies a great and dangerous weakness, which may, God forbid, endanger the sensitive system of relations … riots … arrests … and the accused will find himself again behind bars.
In this light, the retroactive sentence of Jafer Haj Hassan to forty-four days in prison should be seen as a preemptive acquittal.
The defendant is freed immediately. The judge disappeared even before that. The black, authoritative chair still rocks up and down in a suspicious way, and I instinctively examine the ceiling.
All rise!
“I perceived in this moment,” Orwell, the colonial officer, says in his essay, “that when the white man turns tyrant it is his own freedom that he destroys. He becomes a sort of hollow, posing dummy, the conventionalized figure of a sahib. For it is the condition of his rule that he shall spend his life in trying to impress the ‘natives’ and so in every crisis he has got to do what the ‘natives’ expect of him. He wears a mask, and his face grows to fit it. I had got to shoot the elephant. I had committed myself to doing it when I sent for the rifle. A sahib has got to act like a sahib; he has got to appear resolute, to know his own mind and do definite things. To come all that way, rifle in hand, with two thousand people marching at my heels, and then to trail feebly away, having done nothing—no, that was impossible. The crowd would laugh at me. And my whole life, every white man’s life in the East, was one long struggle not to be laughed at.”
An Unfortunate Mishap
During the period in which this book was in preparation, there was a hunger strike involving three thousand convicts in a West Bank prison. The strike ended of its own accord, without the use of force by the prison authority. Lawyers for the strikers were not allowed to meet with them. The prisoners’ families were in deadly fear: the methods used for ending hunger strikes in the prisons have acquired a bad reputation.
For example, in 1980 there was a large hunger strike in the Nafha prison. Until that year the prison authority had the practice of giving the prisoners a “subsistence diet”—milk enriched with vitamins, meant to keep them alive. The prisoners themselves agreed to accept this diet, and did not see it as a violation of their strike. In the case of the strike at the Nafha prison, the prison authority decided to physically break the strike: they transferred twenty-one of the strike leaders to the prison in Ramallah, did not give them the subsistence diet, and insisted on pumping the milk directly into the stomachs of the prisoners. The prisoners refused. The medic on duty, an employee of the prison authority named Ruhami (he was later laid off for a morals violation), forced the pipe on some of them, but due to a lack of expertise the pipe entered the lungs of three of the prisoners. The enriched milk filled their lungs and they began to choke.
The lawyer of one of them happened by, and at her insistence her client was taken to the hospital and saved. He died three years later of a heart attack. The other two prisoners suffered all night. Only in the morning were they brought to the local clinic. From there they were sent to the hospital. One died on the way, and the other in the hospital.
A commission set up to investigate “hunger strike practices in the prisons” (the Eitan Commission) examined the circumstances of the deaths of the two prisoners. In their report they “recommended considering their deaths as an unfortunate mishap.”