Morality and Justice Indivisible for Israeli Lawyer Lynda Brayer

By Brother Patrick White

At nine o'clock on an October morning last year, we filed into the Israeli High Court in Jerusalem. To the court officials we must have been a strange sight. Dressed in our religious habits, with white rabatos and black robes, we padded like three lost penguins behind an Israeli woman lawyer, Lynda Brayer, in her British barrister's black. We stood as the three judges entered the courtroom. Lynda whispered, "It's the president of the Supreme Court, M. Shamgar! " The two equally solemn black-robed, gray haired gentlemen on either side of him were judges D. Levin and A. Goldberg.

The court is located in the Old Russian Compound. The entire building was once a Russian monastery, until the British Mandate converted part of the building into law courts and the accompanying prison. The dark varnished paneling, the high-backed leather padded chairs on the raised bench and the witness stand were, I presumed, vestiges of the British presence in Palestine. The fluorescent lighting, the Israeli flag, the seven-branched menorah insignia over the bench, and the whispered activity of the officials in white shirts and black ties, were now clearly Israeli.

Why were three members of the De La Salle Brothers Community from the Israeli occupied West Bank attending the Israeli High Court in Jerusalem? Because one of us had returned from New York with a gift to the community of a computer for use in our work in Bethlehem.

A Confiscated Gift

The gift was confiscated by the Israeli authorities, under Military Order 1252, part of a punitive package introduced in May 1988, six months after the intifada began. Military Order 1252 forbids any electrical or pharmaceutical goods from abroad being brought into the West Bank and the Gaza Strip by any resident, except the Jewish settlers, who are exempt from the 1,500 Military Orders imposed on the Palestinians and who flourish under another separate legal system in the same territory. The presence of two young Israeli soldier lawyers in military uniform in the High Court was a reminder to us that the authorities from Beit Eil, the Israeli Civil and Military Administration headquarters for the West Bank, were particularly interested in our case. Before the court convened, an American Brother from New York had discovered that one of the prosecutors also had been born in New York, near Howard Beach.

The purpose of our petition to the Israeli High Court was to challenge the validity of Military Order 1252. Prior to making the petition the Military Authorities, on the quiet, countered their previous decision and were prepared to give a permit for the computer. They did not want the validity of Military Order 1252 to be discussed in court.

We appreciated the need to consider the security risk to the Israelis of electronic goods. We were aware, however, that for a Palestinian, bringing an electric kettle or pharmaceutical goods into the West Bank is a crime punishable with up to five years in prison. In contrast to such Draconian laws applied to Muslims and Christians, but not to the Jewish population in the occupied territories, in Israel itself the punishment for theft of any amount of goods or money cannot exceed three years' imprisonment.

How was it, we asked ourselves, that a Jewish settler, Rabbi Moshe Levinger, who shot and killed a Palestinian and who repeatedly perjured himself in the police courts, was sentenced to only five months in prison, later reduced to three months, for "negligent manslaughter of an Arab"? How is it that young Palestinians are imprisoned for nine years for holding empty bottles under the suspicion that they may have been throwing Molotov cocktails? And, more immediate to my own experience, what is the moral basis of the arrest under administrative detention—a Military Order spuriously based on British Mandate Defense Emergency Regulations that were rescinded when the British left in 1948—of the president of the student senate of Bethlehem University, who can be held for one whole year without trial? To my knowledge, Ali had worked incessantly on the campus to keep the student body from any form of protest and disturbance during the 12-week winter semester, held in what were most stressful and tense circumstances.

Clearly, had we been Palestinians instead of expatriate religious, the chances of the Israeli prosecution giving us a permit were close to nil. We and Israeli lawyer Lynda Brayer regarded morality and justice as indivisible: there could not be two systems.

Lynda Brayer considered our case a challenge to a much larger and deeper injustice. She saw the case of the computer as an opportunity to expose on legal grounds the invalidity with regard to international law of the Military Orders on the West Bank, which provide the basis of the mistreatment of the Palestinians in the occupied territories.

An Appalling Premise

What in fact appalls this Israeli lawyer is the very premise on which the 1,500 Military Orders, applied as a constant collective punishment to the Palestinians on the West Bank and Gaza, are based. Electronics and pharmaceuticals are merely the tip of a forbidding iceberg. The basis of Turkish, British Mandate and Jordanian law is purely a facade. Collective punishment really means nobody can receive anything.

One simple example related to the identification card a Palestinian has to carry will illustrate the situation. For Palestinians, an identification card is essential to exist! It is not just a permit to say who they are, it is a pass to allow them to walk around, receive gifts, be mobile, to go to work, to live at home, to attempt to do all those things that are needed to make life normal. A Military Order instructs Palestinians to carry their passes at all times. At the same time, another Military Order permits the authorities to confiscate the identification cards.

Recently, a further list of 30 administrative offenses makes such confiscation of the cards much easier. If an identification card is slightly worn it is confiscated, an arbitrary decision often made without explanation. As a result, people live in a total fog of uncertainty and fear. The identification card is, therefore, the basis for total control of the Palestinian population. From this control flows a further multitude of permits and licenses that oppress every facet of a person's life in the military-occupied territory of Gaza and the West Bank.

The Palestinians have little defense or appeal against such treatment. For this reason, Lynda Brayer, an Israeli mother with Zionist roots who converted from Judaism to Catholicism and left her legal practice, has started, with the help of various Christians in Jerusalem, The Society of Saint Ives, under the guidance of a board set up by the Latin Patriarch of Jerusalem, to combat these injustices. The Society will have a Catholic board, but will be nondenominational in its staff and clientele.

Short-range goals of The Society of Saint Ives will be limited to obtaining permits for building houses for the Palestinians, where a multiplicity of regulations prevent them from building. The Society will also fight the demolition of Palestinian homes, deal with the reunification of families, and argue for the obtaining of specialized medical care that has been withdrawn from Palestinians over the past three years.

Just a few days before the outbreak of the Gulf war, Brayer won a case in the Israeli High Court to force the Military Government to issue gas masks to Palestinians who had not received them on the West Bank and in Gaza. The Jewish settlers in the same geographical areas, along with the whole Israeli population, had received gas masks free of charge. Israeli Justice Aharon Barak ruled that this was blatant discrimination and ordered the Israeli Military Occupation Authorities to distribute gas masks to the Palestinian population. Of this breakthrough for the oppressed Palestinians, Allan Shapiro says in the Jerusalem Post that it "must be one of the finest passages in the judicial literature of Israel."

Legal Positivism

By bringing legal action to the High Courts, Brayer hopes not only to provide legal assistance to poor Palestinians, but also to bring to the attention of all fair-minded people the basic injustices implicit not only in the military laws that control the West Bank, but also within the Israeli legal system itself. She maintains that Israeli law is based on legal positivism. By this she means that much of Israeli law is separated from moral considerations. Legal positivism presupposes that law is right in itself and that moral arguments cannot be brought to bear in legal argument.

She points out that this was the case in the Germany of the 1930s, whereas in the United States the Constitution enables morality to enter the legal system by setting limits on the legal system.

In the West Bank and Gaza, there is no constitution, no Bill of Rights, and therefore no restraint as to what is morally legal or illegal. Furthermore, while Israel is a signatory to the Fourth Geneva Convention on the protection of civilians in occupied territory, it spuriously attempts to avoid its strictures by claiming that it is not in "occupation" of the territories. As a result, human values are given lip service, but the Palestinian population is completely unprotected by law. This, for Brayer, was the heart of the matter.

She goes further. She maintains that the Israeli judiciary is mirrored in the South African model, and that the situation in the occupied territories parallels South Africa's apartheid. She also raises the question as to the independence of the Israeli judiciary from the political executive in Israel. To date, legal challenges to Israel's occupation actions have a 98 percent failure rate in the High Court. This demonstrates that the High Court has no intention of acting as a check on military abuses of power.

Lynda Brayer, born in South Africa, grounded in a Zionist background, educated in Jewish schools, trained in law at the Hebrew University in Jerusalem, and now a courageous Israeli lawyer working on behalf of the oppressed, says her goal is the restoration in Israel of a proper legal system.

There have been many attempts to challenge Israeli legal decisions in the past, but they have failed because they have not recognized that the heart of the problem is the legal system itself. It is not enough, therefore, to assume that simple legal documentation of the facts will suffice. Brayer, in the name of the Catholic Church, intends to confront the courts with a mass of litigation in order to bring better times to both Palestinian and Israeli societies.

I half smiled to myself as we left the High Court later that morning. The two young Israeli military lawyers had attentively written down the president of the Supreme Court's ruling—an amendment to Military Order 1252—as he read it out from the bench.

Lynda had apparently made one inroad into the suffocating injustice of the Military Orders. With prior notice given to the authorities, permits would be issued for electronic goods being brought into the West Bank. The expatriate religious community received its computer. This had been the small start that paved the way for the later success of the principles involved in the more significant question of the gas masks.

I wondered at the complexities of the history of this land as we walked down the corridors of the Russian Compound. I looked across one of the courtyards and discovered to my surprise that part of the building still belonged to Russian Orthodox nuns. Their washing hung on lines across the gray verandas in the pale October sunshine. And I wondered too about Lynda Brayer, who had left her lucrative practice to help the oppressed Palestinians. Why? I asked. The answer to this puzzle must wait for another time.

Brother Patrick White, a member of the Catholic International Teaching Institute called the De La Salle Brothers, teaches at the Vatican-sponsored Bethlehem University in the West Bank.