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Blasting Houses on the West Bank: Israeli Soldiers as Police and Jurors

January 29, 1989|George P. Fletcher | George P. Fletcher is a professor at the Columbia University Law School

NEW YORK — This month, the 14th of the intifada , the Israeli army began to seal off and blow up the homes of Palestinians whose children had thrown stones at soldiers. A child rock-thrower now risks his or her entire family shelter.

How does the Israeli government justify punishing Arab parents for the unruly and sometimes dangerous behavior of their children? The only relevant question these days seems to be whether these punitive techniques will effectively deter other children or induce other parents to keep their offspring under constant supervision. Since Defense Minister Yitzhak Rabin set the tone by invoking "force, might and beatings" as the means to quell the uprising, neither the Israeli government nor the army has paid much public attention to legal criteria for justifying the use of force.

The government maintains its occupation of the West Bank and Gaza, at least until a settlement is reached among the states of the region. It follows that the Israeli army may use its troops to police the territories, however unwise and impolitic it may be to create a police force that is detested by the vast majority of the local population. But politics and good judgment aside, the troops have a right to be where they are. Now what are soldiers supposed to do when teen-agers and children start throwing stones at them?

The Israeli army is not in a state of war with the occupants of the West Bank; when arrested the Palestinians do not have the status and rights of POWs. As a legal phenomenon, the current uprising is not so different from rioting in Miami. The situation is governed by the ordinary rules of defensive force and maintaining civil order.

The basic rule of all civilized legal systems is that private citizens and police officers may resist personal attacks against them with the minimal force necessary to ensure their safety. The word minimal is critical. If chasing teen-agers or lobbing tear gas at a crowd suffices to quell an attack, then the soldiers cannot legitimately shoot. And if shooting is sometimes necessary, the mode and manner of shooting must be minimal. If rubber bullets can stop an attack in progress, then using more lethal ammunition is prohibited.

Catching and beating suspects--or blowing up their parents' homes--clearly has a different purpose. The aim is not to stop the immediate stone-throwing; catching the suspect does that. The point of Rabin's policy is to punish the child so that neither he nor his cohorts will be inclined to throw stones in the future. There is no evidence that this policy of punitive deterrence is working, any more than punishing crack dealers in the United States is stopping the drug traffic. Worse, it testifies to creeping anarchism in the government's effort to cope with the most committed uprising in recent history.

The question is whether a soldier in the field can legitimately function as a judge, jury and executioner, deciding on the spot that certain individuals should be punished--and then carrying out that punishment. If soldiers are resisting attacks in self-defense, the priority of personal safety legitimates response. But if they have already apprehended a suspect, if they have enough power over him to inflict a beating, minimal respect for the rule of law requires that the suspect be brought to trial. Even if there is discrimination against Arabs in the administration of justice on the West Bank, the formality of a trial is better than an embattled soldier meting out retribution against a teen-ager perceived as a personal threat.

When the principle of trying suspects before neutral magistrates gives way to decisions in the field, decisions reached on the spur of the moment, the idea of centralized legal systems loses its meaning. When every soldier becomes a military judge, the situation comes close to the anarchist's dream of "law without government."

Significantly, a major source for a form of anarchistic inspiration lies in the Jewish tradition. The ideal of the Talmud is that every Jew, at least every male Jew, must be literate and capable of studying, in detail, the law governing every step of his private, commercial and religious life. The impulse for exhaustive discussion in the Mishna and the Gemara stems from the need for a person to appreciate individual rights and duties without turning, at every point of indecision, to a human authority. The book determines the way--the Halakha--and so far as Jews are people of the book (the Talmud as well as the Bible), they testify to a yearning for a self-administering legal system.

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