Israel's judicial attack on Palestinians cuts both ways

With their blindfolds just removed and 1,000-shekel ($212) "adjustment grants" in hand, Intisar and Kifah Ajouri wandered onto a fig farm and deeper into the controversy surrounding Israel's new weapon against the intifada. Palestinians alleged to have helped their relatives plan attacks on Israel can now be legally banished from the West Bank to the Gaza Strip.

And Thursday, just a day after this sister and brother of a slain militant from the West Bank city of Nablus were taken in Israeli tanks to an undisclosed location in the Gaza Strip and told to live there for two years, Israel started an even more controversial trial against intifada leader Marwan Barghouti.

Mr. Barghouti, a young secretary general in the Fatah movement who is often touted as a potential successor to leader Yasser Arafat, has been charged with 37 counts of orchestrating attacks that killed 26 Israelis and wounded many others. But in a packed Tel Aviv courtroom, a defiant Barghouti declared that he did not recognize the court and that it had no right to try him.

The two proceedings suggest an increased tendency in Israel to turn to unconventional uses of its court system as a way to discourage attacks on its civilian population – and to demonstrate Israel's argument that acts of terrorism have been directly planned by senior Palestinian Authority officials. And while Palestinians and human rights groups have denounced these moves, some critics in Israeli society itself argue that these attempts to give legal teeth to an otherwise exasperating military and political battle could backfire.

Barghouti's is "a show trial in a sense that the main judge here is world opinion," says Moshe Negbi, a prominent legal affairs commentator in the Israeli media. "The evils and wrongs done by the occupier will always look worse than the evils and wrongs done by the occupied," he says. "It's a no-win situation."

Indeed, while Israeli officials may feel they have ample evidence to convict Barghouti, legal experts here say, he could succeed instead in putting the Israeli occupation of Palestinians on trial before the eyes of the international media.

And in the case of the Ajouri siblings, the court action allowing their deportation to Gaza may actually constrain the Israeli army more than free it. The Supreme Court ruled on Tuesday that the army could not hurt innocent people who were not shown individually to be a security threat – evidence was presented to show that the Ajouris were – and this potentially sets a precedent for preventing the army from making mass deportations in the future.

Although it appears at the outset to give the army the right to punish relatives of suicide bombers – something already commonly done by the demolition of a known bomber's house – this week's court decision to transfer the Ajouris actually suggests that collective punishment is not acceptable in Israel courts.

This, for example, could lead to a ruling on a pending case on whether the army is allowed to use human shields, euphemistically dubbed the "neighbor procedure" by the army, in which Israeli soldiers have forced innocent bystanders to accompany them on missions. The tactic is meant to prevent troops from being shot or hurt in booby traps when they raid Palestinian homes.

"Basically, the picture we're looking at is not a legal one. These are political measures used within legal restraints," says Ruth Gavison, a professor of law at the Hebrew University of Jerusalem and a human rights activist with the Association for Civil Rights in Israel.

"As far as the army is concerned, this won't be a one-time tool," Professor Gavison says of the banishment of the Ajouris to Gaza. "What you are seeing here is a war of communication. Israel wants the people who are thinking of committing ... terrorist activities [to] know that the general picture of what army can do [in retaliation] is more complicated."

Although the army and Israel's hard-liners have been fighting with the court system to "untie" the army's hands in terms of the tools it can use to fight the intifada, the deportation sets up a precedent with which virtually no one is happy. Human rights groups such as Amnesty International and the United Nations slammed Israel's move as a war crime. The Geneva Conventions prohibit an occupying power from moving people from one territory to another, but the Israeli court found the West Bank and Gaza were one territory and therefore exempt.

But legal analysts and even some people on the far right in Israel dismissed the punishment as a "two-year vacation in Gaza," and one that will actually make it harder for the Israeli army to continue with various tactics it has relied on in the past. "This was an unjust and stupid thing to do, and there's not much military sense in it," says Mr. Negbi. "When she [Intisar Ajouri] is in Gaza, she can keep sewing many more bomb belts if she wants. This a classic example of how going to the courts can backfire on you," he adds. "The court set down principles that you cannot take away a person's rights just for deterrence. And this rules out mass or quick transfer of Palestinians, because you will have to show evidence in each case."

After this week's ruling, an Israeli leader or army chief would be unable to make such a move without presenting evidence that each individual was a security threat. Barghouti's case comes with additional complications because it is without precedent. Israel has never before tried a major Palestinian political figure. During the first intifada from 1987-93, Israel usually jailed Palestinians or sometimes kept them in an indefinite "administrative detention." Around the world, some legal experts point out, trials of people accused of crimes in the context of war are almost almost always tried when the war is over.

Legal experts here say that the trial of Barghouti could in fact be a trial balloon for putting Mr. Arafat himself on trial. The Palestinian leader is mentioned several times in the indictment. Nebgi says that if the Israeli government determines the outcome of the Barghouti trial to be a success, it may open the door to trying Arafat, primarily, perhaps, as a way to remove him from the political stage and make room for another leader.

At a time when the conflict has strayed so far from resolution, Israel is left with very unclear guidelines on which to base Barghouti's trial – somewhat similar to the difficult legal situation of the US military taking suspected Al Qaeda prisoners from Afghanistan, and declaring them "enemy combatants" so that they wouldn't be entitled to the same rights as "prisoners of war" under the Geneva Convention. Raji Sourani, a lawyer with the Gaza-based Palestinian Center for Human Rights, says he is concerned that after the relative ease of deporting the Ajouris, Israel will start transferring more Palestinians from the West Bank to Gaza. "With the court decision, it will become a more common process, obviously," says Mr. Sourani. He says there are dozens more Palestinians who are a waiting list for similar transfers. "They just dumped two people in Gaza and I see the US and the European Union doing nothing about it."