Black flag at a crossroads: The Kafr Qasim political trial (1957-58)

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.