Category Archives: Israel

Stop talking about the “border”

We have a right to defend ourselves” just as any other sovereign nation, proclaims Israel’s leaders as they give the order to use lethal force against peaceful protesters on the other side of the fence with Gaza.

Whether Israel is correct depends on two things:

(1) Does international human rights law apply to these facts or international humanitarian law (rules of war)? The question has been presented to Israel’s High Court of Justice.

Michael Lynk, the special rapporteur on human rights in the occupied Palestinian territory, said the killings on Monday reflected a “blatant excessive use of force by Israel” and likened them to “an eye for an eyelash.”

Mr. Lynk said that protesters appeared to pose no credible threat to Israeli military forces on the Israeli side. Under humanitarian law, he said, the killing of unarmed demonstrators could amount to a war crime, and he added that “impunity for these actions is not an option.”

(2) Is the fence between Gaza and Israel an international border or a fence separating two groups of people who each claim sovereignty over their territory?

You would be excused if you erroneously thought the fence was an international border because much of the mainstream media has adopted Israel’s framing of the issue.  Israel wants us to believe it has a border with Gaza; that since its withdrawal in 2005 the Gaza Strip is no longer occupied territory; and the fence represents an inviolable demarcation between Israel and “those people we prefer to call Arabs, not Palestinians.”

If Israel’s argument was correct, then the right to defend that border might have some merit, leaving aside the important issues of “Right of Return” and method of defense.

However, we succumb to Israel’s narrative at the expense of jettisoning the law of belligerent occupation, international humanitarian law and the facts that led to the establishment of Israel 70 years ago.

israel_palestine_conflict

The current borders of the State of Israel are a result of war and of diplomatic agreements. The borders with Jordan and Egypt have been confirmed by peace treaties. The border with Lebanon resulted from the 1949 Armistice Agreement.  The borders with Syria and the Palestinians in the West Bank and Gaza have never been settled. In fact, Israeli Legislators have been passing laws to unilaterally extend Israel’s sovereignty into the West Bank, and they claim they no longer occupy the Gaza Strip. The U.N. and the international community have not recognized Israel’s unilateral pronouncements.

It’s time the mainstream media got the facts straight. Words matter.

Since the State of Israel does not have an internationally recognized border with the Palestinians in Gaza, the actions of both the Israeli military and the Palestinian protesters take on a significantly different cast.

The Palestinians are not trying to cross an inviolable border but rather exercising their Right of Return enshrined in Resolution 194 adopted by the United Nations on December 11, 1948.

The Israeli military is not protecting its sovereign border but rather killing unarmed protesters that have been caged in the world’s largest open air prison.

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The State of Israel may have superior military weapons, thanks in large measure to American taxpayers, but we should not capitulate to Israel’s false narrative.

There is no internationally recognized border between Israel and Gaza. It’s just a fence; actually two fences.  The New York Times is beginning to set the record straight. (May 16, 2018)

 

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Filed under Gaza, Israel, Israel Defense Forces, Media, People, Uncategorized, United Nations

Prolonged Occupation or Illegal Occupant?

michael_lynk

Special Rapporteur S. Michael Lynk

Professor Michael Lynk’s commentary was first published on May 16, 2018 on EJIL: Talk! …. the Blog of the European Journal of International Law.  He raises a novel argument — that the international legal community should consider whether or not Israel’s prolonged occupation of Palestine has crossed some legal line, resulting in an illegal occupation. Professor Lynk posits a 4-part test to determine the answer. His commentary is reprinted below in full.*

Michael Lynk is an associate professor at the Faculty of Law, Western University, London, Ontario, Canada. He teaches labour law, human rights law and constitutional law. In March 2016, the United Nations Human Rights Council appointed him as Special Rapporteur for the situation of human rights in the Palestinian Territory occupied since 1967

“An unresolved question in international humanitarian law is whether an occupying power – whose authority as occupant may have initially been lawful – can cross a bright red line into illegality because it is acting contrary to the fundamental tenets of international law dealing with the laws of occupation.  This question has become especially relevant in light of several prolonged occupations in the modern world, including the 50-year-old Israeli occupation of the Palestinian territory.

The principal instruments of international humanitarian law, including the 1907 Hague Regulations, the 1949 Fourth Geneva Convention and the 1977 Additional Protocol to the Geneva Conventions, are silent on this question. However, a purposive reading of these instruments, together with the foundational tenets of international humanitarian and human rights law, leads to the conclusion that an occupying power whose intent is to turn occupation into annexation and conquest becomes an illegal occupant.

In my October 2017 report to the United Nations General Assembly as Special Rapporteur on the situation of human rights in the Palestinian territory occupied since 1967, I argue that a four-part test can be derived from general principles of international law, including the laws of occupation, to determine whether the status of an occupying power has become illegal. Violating any one of these four parts of the test could establish the occupying power as an illegal occupant. This builds upon previous studies done by E. BenvenistiO. Ben-Naftali, A. Gross & K. Michaeli; and A. Gross.

Before laying out the four-part test, it is important to note that some international law commentators have advanced the proposition that a lengthy period of occupation – a prolonged occupation – should qualify as a special category under the laws of occupation. In the circumstances of a prolonged occupation, it has been said by these commentators that the laws of occupation may have to be modified to enable the occupying power to maintain an effective rule over the territory in light of evolving administrative needs and emerging social and economic developments. As such, they opine that the conservationist principle at the heart of occupation law would need to be interpreted flexibly.

While prolonged occupation may be a useful descriptive term to capture the existence of a lengthy occupation, it is not appropriate as a distinct legal category within the laws of occupation in the absence of an analysis as to why the occupation has lasted so long and whether the occupying power is still administering the occupation in good faith and with a steady determination to hand the entire occupied territory back to the sovereign – the people – in as short and as reasonable a time period as possible. Otherwise, the concept of prolonged occupation may well become a legal guise that masks a de facto colonial exercise and defeats the transient and exceptional nature which occupations are intended to be.

The four parts of the proposed test are:

(i) An Occupying Power cannot annex any of the Occupied Territory

In the modern world, an occupying power cannot, under any circumstances, acquire the right to conquer, annex or gain sovereign title over any part of the territory under its occupation. This is one of the most well-established principles of modern international law and enjoys universal endorsement. According to Oppenheim, belligerent occupation does not yield so much as an atom of sovereignty in the authority of the occupant: A. Gross: The Writing on the Wall (2017), at 8.

Beginning with UNSC resolution 242 in November 1967, the Security Council has endorsed the principle of “the inadmissibility of the acquisition of territory” by war or by force on at least nine occasions, most recently in December 2016. The United Nations General Assembly unanimously affirmed this principle in the 1970 Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States. In the Wall Advisory Opinion in 2004, the ICJ held, at para. 87, that the: “…illegality of territorial acquisition resulting from the threat or use of force” has acquired the status of customary international law.

Israel’s de jure annexation of East Jerusalem and parts of the West Bank in 1967 (by a Cabinet decision) and 1980 (by a Knesset vote) is, ipso facto, a violation of the non-annexation principle, as reflected in the laws of occupation. Shortly after the Knesset vote, the United Nations Security Council in August 1980 censured Israel “in the strongest terms” for the Knesset vote, affirmed that Israel’s actions were in breach of international law, and that Israel’s annexation of Jerusalem was “null and void” and “must be rescinded forthwith.” Israel remains non-compliant with all of the United Nations’ resolutions on the annexation of Jerusalem, there are presently about 210,000 Israeli settlers living in East Jerusalem and Prime Minister Netanyahu has stated that Israel intends to keep all of Jerusalem permanently. Beyond Jerusalem, Israel is actively establishing the de facto annexation of parts of the West Bank through its thickening settlement enterprise, as noted by the ICJ in para. 121 of the Wall Advisory Opinion and by Professor Omar Dajani.

Israel’s predominant reply-arguments are that it has a superior title to East Jerusalem and the West Bank because they were acquired in a defensive war and because Jordan was never the true sovereign at the time of the 1967 war. In response, the absolute rule against the acquisition of territory by force makes no distinction as to whether the territory was occupied through a war of self-defence or a war of aggression; annexation is prohibited in both circumstances: S. Korman, The Right of Conquest (1996), pp. 259-60. And, as the 2016 commentary of the International Committee of the Red Cross states, in para. 324, the legal status of occupation does not require the existence of a prior legitimate sovereign over the territory in question.

(ii) An Occupation is inherently temporary, and the Occupying Power must seek to end the occupation as soon as reasonably possible.

Occupation is by definition a temporary and exceptional situation where the occupying power assumes the role of a de facto administrator of the territory until conditions allow for the return of the territory to the sovereign. In the words of Jean Pictet, at p. 275, this is what distinguishes occupation from annexation. Because of the absolute prohibition against the acquisition of territory by force, the occupying power is prohibited from ruling the territory on a permanent or even an indefinite basis. While the laws of occupation do not set out a specific length of time for the lawful duration of an occupation, the purposive conclusion to be drawn is that the territory is to be returned to the sovereign power – the people of the territory – in as reasonable and expeditious a time period as possible, so as to honour the right of those people to self-determination. (As  UNSC Resolution 1483 (22 May 2003), dealing with the American-led occupation of Iraq, noted, the occupying powers committed to return the governance of Iraq to its people “as soon as possible.”) Indeed, the longer the occupation, the greater the justification that the occupying power must satisfy to defend its continuing presence in the occupied territory.

The duration of the 50-year-old Israeli occupation is without precedent or parallel in today’s world. Modern occupations that have broadly adhered to the strict principles of temporariness, non-annexation, trusteeship and good faith have not exceeded 10 years, including the American occupation of Japan, the Allied occupation of western Germany and the American-led occupation of Iraq. Every Israeli government since 1967 has pursued the continuous growth of the settlements, and the scale of the financial, military and political resources committed to the enterprise belies any intention to make the occupation temporary. As Professor Gershon Shafir has observed at pp. 155 and 161 in A Half Century of Occupation(2017): “temporariness remains an Israeli subterfuge for creating permanent facts on the ground”, with Israel able to employ a seemingly indeterminate nature of the occupation’s end-point to create a ‘permanent temporariness’ that intentionally forestalls any meaningful exercise of self-determination by the Palestinians.

(iii) During the Occupation, the Occupying Power is to act in the best interests of the people under Occupation

The occupying power, throughout the duration of an occupation, is required to govern in the best interests of the people under occupation, subject only to the legitimate security requirements of the occupying military authority. This principle has been likened to a trust or fiduciary relationship in domestic and international law, where the dominant authority is required to act in the interests of the protected person or entity above all else: A. Gross, The Writing on the Wall (2017), at pp. 26-29. The 1907 Hague Regulations, the 1949 Fourth Geneva Convention and modern body of international human rights instruments contain a number of provisions which protect the lives, property, natural resources, institutions, civil life, fundamental human rights and latent sovereignty of the people under occupation, while curbing the security powers of the occupying power to those genuinely required to safely administer the occupation. Accordingly, the occupying power is prohibited from administering the occupation in a self-serving or avaricious manner and it must act in a manner consistent with its trustee responsibilities.

The pervasive barriers and restrictions in the civil and commercial life of the Palestinians have created a disfigured territorial space, resulting in a highly dependent and strangled economy, mounting impoverishment and receding hope for a reversal of fortune for the foreseeable future. According to recent reports by the World Bank, the United NationsB’Tselem, the Association for Civil Rights in Israel and Badil, the Palestinians in the West Bank endure distinctly inferior civil, legal and social conditions compared to Israeli settlers; they suffer from significant restrictions on their freedom of movement and a denial to access to water and natural resources; Israel has imposed a deeply discriminatory land planning and housing permit system to support its settlement enterprise; and a number of West Bank communities live under the threat of forcible transfer and land confiscation. Palestinians in East Jerusalemand Gaza also endure distressing living conditions occasioned by the occupation.

(iv) The Occupying Power must act in good faith

The principle of good faith is a cardinal rule of treaty interpretation in the international legal system and has become an integral part of virtually all legal relationships in modern international law. The principle requires states to carry out their duties and obligations in an honest, loyal, reasonable, diligent and fair manner, and with the aim of fulfilling the purposes of the legal responsibility, including an agreement or treaty. Conversely, the good faith principle also prohibits states from participating in acts that would defeat the object and purpose of the obligation or engaging in any abuse of rights that would mask an illegal act or the evasion of the undertaking.

Accordingly, an occupying power is required to govern the territory in good faith, which can be measured by its compliance with the following two obligations: (i) its conformity with the specific precepts of international humanitarian law and international human rights law applicable to an occupation; and (ii) its conformity with any specific directions issued by the United Nations or other authoritative bodies pertaining to the occupation.

Israel has been deemed to be in breach of many of the rules of international humanitarian and human rights law throughout the occupation. Apart from its illegal annexation of East Jerusalem, its settlement enterprise has been repeatedly characterized as illegal by the United Nations Security Council. As well, the prohibited use of collective punishment has been regularly employed by Israel through the demolition of Palestinian homes of families related to those suspected of terrorism or security breaches, and by extended closures of Palestinian communities. Additionally, it is in non-compliance with more than 40 resolutions of the United Nations Security Council adopted since 1967 with respect to its occupation.

Namibia Advisory Opinion

In 1971, the International Court of Justice, in its Namibia Advisory Opinion, stated that annexation by a mandatory power is illegal, the mandatory must act as a trustee for the benefit of the peoples of the territory, it must fulfil its obligations in good faith, and the end result of the mandate must be self-determination and independence. It also held that the breach of the mandatory power’s fundamental obligations under international law can render its continuing presence in the mandate territory illegal, notwithstanding that the Covenant of the League of Nations (Article 22) was silent on this issue. The ICJ found South Africa to have become an illegal mandatory as a result of its aspirations for annexation, its prolonged stay, its failure as a trustee, and its bad faith administration.

The same reasoning would apply, mutatis mutandis, to a determination as to whether an occupying power is still the lawful occupant. Although mandates are governed by the Covenant and occupations are regulated primarily by the Fourth Geneva Convention, they are different branches of the same tree. Both South Africa (as a mandatory power) and Israel (as the occupying power) were/are prime examples of alien rule, the governing power in both cases was/is responsible for respecting the right to self-determination, annexation in both cases was/is strictly prohibited, and the international community on both cases was/is responsible for the close supervision of the alien rule and for bringing this rule to a successful conclusion.

Conclusion

A determination that Israel – or any occupying power whose administration of the occupation has breached one or more of the fundamental principles – has become an illegal occupant would elevate the duty on the international community to bring the occupation to a successful and speedy close. Among other benefits, such a determination would re-establish the framework of international law as the principled path to a just and durable resolution of the Israeli-Palestinian conflict.”

*     I didn’t ask permission to republish this commentary, preferring to ask forgiveness later if I’ve overstepped.  The original commentary can be accessed here.

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Shooting fish in a barrel

Life is unbearable in Gaza. It’s been unlivable for years for the 2+ million Palestinians trapped there, but now it’s at the breaking point. Many (most?) feel there’s nothing to lose by going to the eastern border and facing down the Israeli marksmen who are shooting them like fish in a barrel. Today 55+ Palestinians have been killed (including a journalist, a medic and a Palestinian with no legs) and hundreds wounded for demanding their rights enshrined in United Nations Resolution 194.

Less than 100 miles away in Jerusalem, Netanyahu and others are in a celebratory mood as the U.S. flag is raised over the new U.S. Embassy. They don’t even acknowledge the slaughter occurring in Gaza.

Gaza slaughter

I’ve called my two U.S. Senators (Udall and Heinrich) and Congresswoman Lujan-Grisham, demanding that they condemn the slaughter of innocent, unarmed Palestinians. I want them to join the other members of Congress who have spoken out against the killing and maiming of unarmed protesters, including: Senators Feinstein, Warren, Leahy and Sanders; as well as the following House members:

Barbara Lee (CA 13)
Alan Lowenthal (CA 47)
Lloyd Doggett (TX 35)
Hank Johnson (GA 04)
Danny Davis (IL 07)
Jan Schakowsky (IL 09)
John Yarmuth (KY 03)
Jamie Raskin (MD 08)
Keith Ellison (MN 05)
Betty McCollum (MN 04)
David Price (NC 04)
Bonnie Watson Coleman (NJ 12)
Earl Blumenauer (OR 03)
Steve Cohen (TN 09)
Gerry Connolly (VA 11)
Peter Welch (VT 1)
Mark Pocan (WI 02)
Pramila Jayapal (WA 07).

My eyes are now focused on Udall, Heinrich and Lujan-Grisham.  I’m going to hound them until they come clean with a statement condemning Israel’s slaughter of innocents.

<p><a href=”https://vimeo.com/269659083″>Voices of the Siege</a> from <a href=”https://vimeo.com/user3079357″>The Palestine Chronicles</a> on <a href=”https://vimeo.com”>Vimeo</a&gt;.</p>

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Building a case for the ICC

The Prosecutor for the International Criminal Court (Fatou Bensouda) warned Israel in early April that it might be subject to prosecution for the crimes committed against the protesters at the #GreatReturnMarch.

Ms Fatou Bensouda

Ms Fatou Bensouda – Prosecutor

I remind all parties that the situation in Palestine is under preliminary examination by my Office. While a preliminary examination is not an investigation, any new alleged crime committed in the context of the situation in Palestine may be subjected to my Office’s scrutiny. This applies to the events of the past weeks and to any future incident.

I am aware that the demonstrations in the Gaza Strip are planned to continue further. My Office will continue to closely watch the situation and will record any instance of incitement or resort to unlawful force. I urge all those concerned to refrain from further escalating this tragic situation.

Any person who incites or engages in acts of violence including by ordering, requesting, encouraging or contributing in any other manner to the commission of crimes within ICC’s jurisdiction is liable to prosecution before the Court, with full respect for the principle of complementarity. The resort to violence must stop.

Israel clearly and boldly says it will not investigate the deaths attributed to its sharpshooters who are picking off Palestinians (young, old, men and women, and journalists) inside the Gaza Strip.

Israel’s decision not to investigate is important to note because of the principle of complementarity.

‘Complementarity’ is a fundamental principle on which the functioning of the International Criminal Court is based. Under the Rome Statute, which established the Court, the ICC can only exercise its jurisdiction where the State Party of which the accused is a national, is unable or unwilling to prosecute.

Israel, it appears, is inviting the ICC to assume jurisdiction in this case. Alhamdulillah!

Now, the ICC Prosecutor must do more than merely threaten, she must follow through with an independent investigation of the actions on both sides of the fence. The killings by IDF sharpshooters (40 dead, 5,511 wounded as of April 25) have been documented on video and there are numerous eyewitnesses whose testimony must be preserved.

I’ve been searching online for evidence of violence from the Palestinian side of the fence and haven’t found anything beyond burning tires and rocks. The protesters have been peaceful and have not posed any threat to the well-armed IDF sharpshooters.  The ICC Prosecutor’s investigation must be thorough and independent. I hope Israel will cooperate and turn over any evidence it might have regarding the protesters.

Palestinian youth are documenting what’s going on from the Gaza side of the fence, such as this piece from We Are Not Numbers.

While Israel and some Western media label Gaza Palestinians’ ongoing, six-week protest a “riot,” what visitors and participants see on the ground is completely different. The tire and (Israeli) flag burning that may seem “riotous” to some are actually carefully planned by a coordinating committee to obscure the vision of Israeli snipers (the former) and serve as a peaceful outlet for frustration and anger (the latter). And while those activities are occurring on the front lines of the border protest, the “Great Return March” (so-named because of the desire of the refugees in Gaza to return to the homes they were forced to evacuate in 1948), also is hosting many family-oriented cultural celebrations. On any given day, you may encounter women cooking Bedouin bread, young men dancing dabka and children flying kites.

“By including cultural activities in the Great Return March, we send a reminder message to the world that we will never forget our heritage and customs, which remind us of home,” says organizer Ahmed Abu Ertima. “At the same time, these cultural demonstrations show we are peaceful in the demand for our rights.”

Thousands of Gaza families take their children and head off to the border to participate in the Great Return March every day, raising the Palestinian flag and chanting the event’s motto, “We have the right to return to our ancestral land.” They sit on the ground, in sight of stolen lands just a few hundred meters away, while listening to their elders’ tales about their ancestral villages and towns.

Justice and the rule of law require that the ICC Prosecutor follow through with her investigation and prosecution.

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Inching towards ethnocracy

inchworm

Inchworm

Slowly, methodically, step-by-step, just like an inchworm, the State of Israel will reach its destination in 2018, on its 70th birthday.

The State of Israel will officially discard its trappings as a western democracy, and cloak itself proudly as the newest Ethnocracy in the Middle East.

A political regime that facilitates expansion and control by a dominant ethnicity in contested lands. It is neither democratic nor authoritarian, with rights and capabilities depending primarily on ethnic origin and geographic location.

The biggest lie — repeated so often that few question it — is the statement that “Israel is the only democracy in the Middle East.” It’s a necessary lie from Israel’s perspective to gain legitimacy and support from its #1 fan club in the United States, the Congress.

In recent years, Israeli leaders have not been shy about proclaiming their true intention. The contradictions between being a Jewish state and a democratic state are now resolved —- dropping any pretense of democratic values in favor of a Jewish-only state that favors Jews, claiming all of Jerusalem as Israel’s capital, giving only the Jewish people the right of self-determination, allowing Jewish legislators to throw out Palestinian legislators from the Knesset, removing Arabic as an official language of the State along with Hebrew, and neutering the Israeli judiciary from overturning any laws passed by the Knesset regardless if they violate international human rights norms or not. (Israeli Parliament Endorses ‘nation-state bill’ for first reading – by Jonathan Cook – April 9, 2018 – AlJazeera)

Even scholars in Israel, such as Alexander Kedar, Shlomo Sand, Asaad Ghanem, Haim Yakobi, Nur Masalha and Hannah Naveh, have recognized Israel as an ethnocracy. 

What does this mean for the 20% of Israeli citizens who are not Jewish, but Palestinians?  What about the Palestinians living in the occupied West Bank and occupied Gaza Strip?

The only conclusion:

  • They will live and die as second-class citizens, non-citizens and refugees with no hope of helping Israel to become a “consensual democracy” as envisioned by Palestinian leaders in 2006 in “Future Vision.”
  • They and their children will live in an apartheid state. “If being an apartheid state means committing inhumane acts, systematic oppression and domination by one racial group over another, then Israel is guilty, a United Nations panel has determined in a new report.” Washington Post, March 16, 2017
  • The U.S. Congress must recognize that their alliance with the State of Israel contravenes our country’s democratic values, and we must distance ourselves from this undemocratic State.
  • Someone needs to make a new YouTube video repeating the following mantra over and over again so that the new reality and truth finally sink in.

Israel is an Ethnocracy and Apartheid State in the Middle East. <repeat>

Israel is an Ethnocracy and Apartheid State in the Middle East. <repeat>

Israel is an Ethnocracy and Apartheid State in the Middle East. <repeat>

 

 

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Why Israel is a Sacred Cow for America

Professor Noam Chomsky has been educating Americans about Israel-Palestine for many years, most recently in his talk in Oakland in March 2018.

Thanks to my friend, Mohammed Awad, I met Chomsky in Gaza in 2012.

An American Jew traveling in Palestine might raise the eyebrows of some people who believe the Hamas-controlled Gaza Strip is a hotbed of anti-semitic barbarism, but clearly Chomsky has been receiving the royal treatment here.  Quite the contrast to the reception he received two years ago when Israel denied him entry to the West Bank where he was scheduled to lecture at Birzeit, a Palestinian university.  Professor Chomsky’s visit to Gaza was sponsored by TIDA, a new homegrown institution founded by Dr. Eyad Sarraj. 

In this 12-minute video posted in 2015, Noam Chomsky answers the question: Why is Israel a sacred cow for America?

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Israel and Annexation by Lawfare

by Michael Sfard — an Israeli human rights lawyer and the author of The Wall and the Gate: Israel, Palestine and the Legal Battle for Human Rights (2018).

The following excerpts are from a longer commentary published in the New York Review of Books — April 10, 2018

I always thought that if Israel were to unilaterally annex the occupied Palestinian territories, it would come under an international spotlight, with denunciations and protests around the world. I was wrong. Annexation is underway, but out of the spotlight, away from international attention. In the dismal offices of the fortified Justice Ministry in East Jerusalem, in the cramped meeting rooms of the Knesset, and in the august chambers of the Supreme Court, Israel’s finest lawyers are working around the clock to shape the biggest paradigm shift since the West Bank was conquered in 1967. The government’s lawyers are busy giving their counsel, drafting laws, and defending Israel’s efforts to expand the jurisdiction of its law and administration beyond the 1949 ceasefire lines to serve the interests of Jewish settlers at the expense of the occupied Palestinians, whose civil rights are suspended. Knesset committees are drawing up legislation to expand and entrench the dual legal system that already exists in the West Bank: one code for settlers, another for Palestinians. These new laws are to be applied in a setting in which the colonized are dominated by the colonizers, with a clear intention of maintaining that domination. Even the Israeli judiciary is joined to the task, allowing the exploitation of Palestinian property for the benefit of Israeli settlers.

This epic transformation is taking place after close to fifty years of occupation. During that time, Israel made profound changes to both the landscape and the demography of the territory it conquered. Palestinians were subjected to a military government that denied them participation in the political process that shaped the rules applied to them and determined their future. Israel used the authoritarian powers that international law gives an occupying force to exploit the territory in a way never envisaged by the framers of those laws. It unilaterally annexed East Jerusalem, a move that was widely condemned abroad. The international community does not recognize the unified city as Israel’s capital; even Trump’s declaration on moving the US embassy to Jerusalem stops short of acknowledging the annexation of the city’s eastern parts.

…. 

The policies that evolved over decades—a creeping process of de facto annexation—stopped short of a wholesale application of Israel’s sovereignty over the Occupied Territories; the legal and political distinctions between the West Bank and Israel were preserved.

Now, this crucial legal-political status is being dismantled. The government is peeling away the last remnants of loyalty to the notion of the occupation as temporary and to any obligation to negotiate with the Palestinians. The goal is clear: a single state containing two peoples, only one of which has citizenship and civil rights.

….

Justices in the Supreme Court, housed in a hilltop building that faces the Knesset, have set precedents of their own: last November, three judges ruled that the settlers constitute a “local population” in the West Bank, and that therefore, under certain conditions, private Palestinian land can be “temporarily” allocated to serve their needs. Their judgment overturned a principle, upheld for over forty years, that barred the use of private Palestinian land for settlement expansion. Within days of the ruling, the attorney general authorized the army to consider the expropriation of private land owned by Palestinian farmers to pave a settlement road.

Israel’s charade of adhering to the principles of international law is over. Every branch of government is contributing to this overhaul, with jurists taking the lead. In another set of buildings, some even shabbier than the dingy Ministry of Justice, a different group of lawyers, myself among them, wield the legal tools at our disposal with an opposite aim. We enlist the law to fight oppression and dispossession: in one case, we have challenged the confiscation law (also known as the Settlements Regularization law); in another, we have petitioned for a further hearing on the November ruling that allows (temporary) use of Palestinian lands for settlements. We have launched countless petitions, on behalf of our Palestinian clients, demanding that the settlers be evacuated from private land and the structures they have built be demolished. Our legal struggles, which often seem Sisyphean, take years first to liberate, then to restore access to, the occupied lands on which more than a hundred settlers outposts, such as Migron and Amona, have sprung up since the 1990s. We have invoked legal principles to win the lifting of restrictions placed on the movement of Palestinians, fighting to overturn orders that the army frequently issues to deny Palestinians access to their farm lands as an easy way to avoid friction with violent settlers. And we have demanded countless times that the court end its disgraceful failure to enforce the law against settlers: astonishingly, construction companies, settlers associations, and even heads of settler municipal councils, which are all involved in illegal construction on private Palestinian lands, have never been charged for their role in this huge collective crime. We are filing petitions to secure a remedy that sounds simple but is extremely difficult to get: to force the police to investigate these violations and the prosecutors to prosecute them.

Our petitions against the confiscation law, filed on behalf of some forty Palestinian local councils, sixteen Israeli human rights NGOs, and several individual land owners, will be heard in June before an unusual tribunal of nine justices (the Supreme Court usually sits in panels of three). It will be a significant test for the highest Israeli court, which over the years has approved many practices that strengthened Israel’s military and civilian presence in the Occupied Territories.

….

Much could be said about the integrity of a jurisprudence that sustains such internal contradictions.

….

The activist bench of the 1980s, 1990s, and 2000s, which saw a steady majority of justices who professed allegiance to liberal legal philosophy, became the number one target of the Israeli right. The generational turnover on the court’s bench gave successive Netanyahu-led governments the opportunity to liquidate its liberal wing. The new appointments of conservative, illiberal, and nationalistic judges, two of them settlers, changed the balance in favor of justices who emphasize nationalism rather than universal values.

….

The battle for the future of Israel’s dominion over millions of Palestinians and the colonization of their land is at a critical juncture. Will the current reality of repression and discrimination through “temporary” control of one nation over another be reinforced and institutionalized by official annexation into one permanent state?

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