Attorney Lynda Brayer: An "Out-Insider" in Israel's Legal System

By Janet McMahon

To meet Israeli lawyer Lynda Brayer is to encounter a whirlwind of energy and vitality that few individuals would choose to oppose. Accordingly, this determined attorney has chosen as her opponent the arbitrary and capricious misuse of authority made possible by the "emergency laws" with which Israel rules the Palestinian inhabitants of the Israeli-occupied West Bank and Gaza Strip.

At its 1993 convention, the American-Arab Anti-Discrimination Committee (ADC) presented Brayer its Human Rights Award for her work with the Society of St. Yves, a non-profit legal resource center under the auspices of the Latin Patriarch of Jerusalem. As president of the society, Brayer, who converted from Judaism to Catholicism in 1988, challenges abuses of Palestinian human rights that occur under the patchwork legal system administered by the Israeli authorities in the occupied territories. Specifically, she utilizes international law's concept of "belligerent occupation" to challenge the legitimacy of what she terms the "Mad Hatter's teaparty" of Israeli occupation rule.

Belligerent Occupation

The laws of war governing belligerent occupation are the Hague Regulations of 1907 and protection of civilians provided by the Fourth Geneva Convention of 1949. These laws are not treaties between two warring parties, but express customary law and, as such, are "absolutely binding" upon all signatory nations, Brayer explains.

Important principles characterizing belligerent occupation, Brayer continues, are that it is de facto—"the actual taking and establishing of control of a sovereign territory or a part of a territory by an invading army"; it is temporary; annexation of the territory is illegal; and the occupier acquires neither sovereignty nor legal rights by virtue of its occupation.

The question of sovereignty is a crucial one, according to Brayer, for only a sovereign power can issue emergency laws. However, "Israel has chosen to define 'sovereign' as meaning 'the government' of a state," she asserts. "This is not the acceptable or normal meaning of this term. By definition the sovereignty of any territory lies in the native and indigenous population of a territory. A belligerent occupier sets aside temporarily the rule of the legitimate sovereign, but it cannot take away the inherent sovereignty of the people. "

Since Israel is not the legitimate sovereign in the occupied territories, it cannot declare a state of emergency or issue emergency regulations, Brayer maintains. "An invading army is the cause of a national emergency, not the victim," she notes caustically. "A local government issues emergency regulations for the protection of its own population. An occupier cannot implement the same regulations and use them as punitive measures against the local population whom they were meant to protect."

And things do get "curiouser and curiouser" in the case of Israel, which considers itself an "administrative occupier"—a definition which "does not exist in international law," Brayer contends. "This is translated to mean that there is a belligerent occupancy but Israel is not a belligerent occupier. Thus Israel is both subject to, and not subject to, the laws of belligerent occupation. "

This schizophrenia extends to the legal system imposed by Israel on the occupied territories. Brayer is passionate in her insistence that law is based on the principles of Aristotelian logic, and therefore "must presume the possibility of argument. " She likens the basis of the system used in the occupied territories to "twisted Talmudic thinking," whereby "one cannot predict what factors will change" in determining the applicability of the law to a given case.

Anyone, however, can predict the outcome of cases involving Palestinians, Brayer maintains. Such cases have a "99 percent failure rate" in Israel's courts. Despite the odds, Brayer persists in her efforts on behalf of Palestinians and their institutions, challenging such Israeli actions in the occupied territories as land confiscation's, settlement building, the imposition of 24-hour curfews, and unequal water allocation—"A Jew get 6 gallons a day, a Palestinian 2.5 gallons."

One success, argued by Brayer herself, resulted in an order by the High Court that the gas masks being distributed to Jews be made available to Palestinians as well prior to and during the Gulf war. Not surprisingly, Israeli authorities were able to circumvent the ruling through bureaucratic measures, so the victory remained a theoretical one. Fortunately, none of the Scud missiles fired by Iraq into Israel had chemical warheads

Another issue about which this mother of three feels particularly adamant is the enforced separation of Palestinian families, either through the denial of residence permits to spouses of Palestinian Arabs, or the expulsion of Palestinian Muslims as occurred in December 1992, and many times previously. Brayer considers this policy a breach of the religious commandment, shared by Islam and Judaism, to "go forth and multiply," and of the importance both faiths place on marriage and the family. Only a government which views Palestinians as "not full human beings" could so betray its principles, Brayer maintains. Not surprisingly, she has been actively fighting in court Israel's expulsions of Palestinians from the occupied territories.

Lynda Brayer would agree that her commitment to justice for Palestinians is not the expected outcome of her upbringing. Her grandmother was born in Palestine in 1900 and, in 1922, emigrated to South Africa, then also part of the British Empire. Brayer was born in Johannesburg in 1945. The future attorney, who describes herself as "a total academic failure until late in life," moved to Israel in 1969 and subsequently received a B.A. in English literature and art history cum laude from Hebrew University.

When she then progressed to the study of law, however, she quickly discovered that, much as she had come to enjoy academic life, she "hated" the laws about which she was learning for the first time. By the third week of her constitutional law class, Brayer says, she "realized exactly the kind of law they must have had in Germany in 1935. My work, " she adds, "has proved exactly how right I was."

Brayer's conversion to Catholicism, which she calls her "religious experience, " started in the mid-'80s. Interested in Christianity since she was a child, Brayer studied the religion at Hebrew University and "went to church once or twice," before she began reading independently. (A self-described "voracious reader, " she cites her interests as "religion, philosophy, theology, spiritual writers and intellectual and general history. ") At the Jesuit chapel she attended, she found that "the iconography of Mass is all Jewish," and hence was familiar. She describes Christianity's " huge concern for others, embracing all Palestinians" as one of its most important appeals for her. Indeed, the motto of the Society of St. Yves is "I am my brother's keeper."

While her religious conversion brought her closer to Palestinians, Brayer says, she continued to be bothered "by the idea of Israel being a totalitarian state. " She cites the centralized economy, where "the government budget is a huge percentage of the GNP," as an example. The burden on the individual citizen is not so obvious, she says, "but if you put one foot wrong, " the tyranny of discretionary power reveals itself.

The political and personal evolution that turned Brayer into, in her words, "an out-insider in Israel and an in-outsider with Palestinians, " took place over a number of years. When she first came to Israel, she says, "I believed Zionist propaganda. My God, I'm ashamed. "By now, however, she has concluded that Zionism is "the ultimate apostasy" because, as Israelis, "we have made ourselves the ultimate good."