נטל כבד מנשוא: מינוי עורכי דין מיוחדים לשם התמודדות עם ראיות חסויות

Each year Israel detains on average over one hundred Palestinians from the West Bank,the Gaza Strip, and East Jerusalem and Arab-Palestinian citizens within the "green line"in administrative detention: security detention without charge, based on evidence that are not disclosed to detainees and their lawyers. The detention is subject to judicial review that proved largely ineffective in limiting arbitrary detention.Few Jewish citizens of Israel, mostly settlers, are occasionally subject to administrative detention or administrative movement restrictions due to security concerns. These limitations on Jews have brought legislators, including from the far right-wing, to propose a bill that would provide for “special advocates”: security cleared lawyers who access the secret evidence and argue on behalf of the detainee. Unsurprisingly, the bill was proposed as an Israeli law, effective only inside Israel and (often) over its settlers in the West Bank, while keeping the mass detention of Palestinians outside its purview.We theorize this situation in the framework of a dual legal system: one for citizens and residents of Israel and one for the occupied Palestinians; one based mainly on criminal procedure, the other too often on security detention based on secrete evidence.However, the duality is disrupted once security detention is applied to Jews. We see it as an opportunity to further disrupt this dual legal system by using “peripheral radiation” which would extend the protection of the “special advocates” bill to Palestinian detainees.In this article we make several suggestions to address the burden of challenging secret evidence in the particular circumstances of the Israeli occupation, including to engage qualified translators and Israeli military defense lawyers as special advocates in defense of Palestinian detainees; and we discuss the arrangements that are needed to make it fairer and more effective.