Personality: Attorney Lynda Brayer; An "Out-Insider" in Israel's Legal System
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.
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."
"Law must presume the possibility of argument."
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. …