Orbach, Danny. “Black Flag at a Crossroads: The Kafr Qasim Political Trial (1957–58).” International Journal of Middle East Studies 45.3 (2013): 491-511.
A political trial, according to Steven E. Barkan, is a trial revolving
around highly publicized legal controversies. In some cases, such a
trial may determine fundamental political questions, exceeding the legal
realm, which are in debate inside a given polity. The 1957–58 trial
related to the 1956 massacre in Kafr Qasim, Israel certainly belongs to
this category. The trial established the doctrine of a “manifestly
unlawful order” in Israeli military law, contributed considerably to the
reshaping of civil–military relations, and influenced the civic status
of the Arab minority in Israel. In this article, using hitherto
underexamined primary sources, I argue that the most important
contribution of the trial, the doctrine of a “manifestly unlawful
order,” was not only a creation of the bench but also a result of a
complicated interaction between the actors present in the courtroom: the
defendants, their defense lawyers, the prosecutors, and the judges.
Above all, the article shows how the bitter struggle between the two
main attorneys helped shape the doctrine of a “manifestly unlawful
order,” that is, an order that is illegal for a soldier to obey.