Since He Is a Patriot
Daphna Hacker and Neta Ziv, eds., Does Law Matter? Tel-Aviv University Law Faculty Press (2010) (Hebrew)
7 Pages Posted: 15 Jan 2017
Date Written: 2010
Patriotism was a leitmotif in the trial of Hezbollah combatants, in which I represented the captive defendants, right after the second Israel-Lebanon war in 2006. The trial exemplified different types of patriotism, some of them surprising and unexpected: the Lebanese patriotism of Hezbollah fighters, the blind patriotism of the Israeli prosecution, and the sober Israeli patriotism of my colleague on the defense team, Attorney Itay Hermlin.
Right from the start it was clear to me that a trial conducted by Israel against Hezbollah combatants is a political trial of a state against its enemy forces, still led in the atmosphere of war. The court thus serves as an agent of the state, and lacks the capacity for impartial judgment. It was also quite clear that the trial is of no practical importance. What is then the role of a lawyer in a trial with no practical importance? Is the representation of the defendants also of no importance? Although the trial was practically insignificant, it did have political and symbolical significance. It was important for Israel, and many substantial resources were invested in it. The trial was to be another chapter in Israel's political struggle against Hezbollah. It was important for Israel to present Hezbollah, both internally and internationally, as a terrorist organization, and its fighters as war criminals lacking any legitimacy. The defendants perceived themselves as legitimate combatants, acting not only on behalf of their organization but also on behalf of their country and for its sake, and therefore entitled to prisoner of war status. In addition, they had no trust in the Israeli legal system, and did not even acknowledge its jurisdiction over them. They did not see the trial as having any importance or bearing on their fate. They were convinced, quite justly, that their fate would be determined in a prisoners' exchange in the near or further future.
The trial was not conducted to achieve the usual goals of criminal trials, establishing criminal responsibility and inflicting punishment, and not even in order to keep the defendants locked away, but in order to write another chapter in history and politics. It was a symbolic and political struggle of competing narratives. The main objective of the defendants' representation in this context was to enable them to participate fully in the struggle of narratives. I was about making their voice heard, unfolding their story, presenting their own narrative vis-à-vis that of Israel. As it was obvious we would not win this trial, revealing its underlying politics and shaking its objective image served as a tool to delegitimize the legal process.
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