Symposium on Occupation Law: Fitting a Square Peg into a Round Hole

by Diana Buttu

[Diana Buttu is a lawyer and activist who is currently a law fellow at the University of Windsor Law School. This post is part of an ongoing symposium on Professor Aeyal Gross’s book The Writing on the Wall: Rethinking the International Law of Occupation (CUP, 2017).]

This June, Israel marked 50 years of military occupation of the West Bank, Jerusalem and the Gaza Strip. Far from being a sombre affair, this anniversary was met with wide celebrations by Israeli politicians across the political spectrum. Titling the event “50 years of liberation,” (not occupation), Israeli politicians spoke of the “miracle” (not disaster) of Israel taking over and conquering Palestinian land and vowed never to withdraw: “[I]n any agreement, and even without an agreement, we will maintain security control over the entire territory west of the Jordan River,” said Netanyahu. In August 2017, Netanyahu added that, “We are here to stay, forever. There will be no more uprooting of settlements in the land of Israel.” Not to be outdone, Israel’s opposition leader, Isaac Herzog, chimed in with similar expressions of occupied lands forever remaining in Israel’s hands.

These expressions of joy at having maintained an occupation for half a century were only slightly tempered by statements of the United Nations calling occupation “ugly” and reminding the world that years of living under foreign military rule has had devastating humanitarian and other effects on Palestinians forced to live under or cope with this rule. More tellingly, the United Nations reminds us that, “Neither the occupation, nor its impact, is static of course.” It is this latter sentence that stands out the most, as we try, as lawyers, academics and activists, to ensure that the occupation is temporary and static insofar as it does not lead to a deterioration of living conditions for Palestinians under Israeli military rule.

It is in addressing this struggle – that of the desire by Israel to maintain this occupation so as to facilitate its colonization and attempts by activists to ensure that occupation is temporary – that the role of Israel’s courts, international humanitarian law and international human rights law come to play an important, indeed vital, role. For years, lawyers, trying to alleviate the ravages of Israeli military occupation, have resorted to Israel’s (and later international) courts for redress. Using international humanitarian law, international law and domestic Israeli law arguments, lawyers have fought tirelessly to soften Israel’s blow. Yet despite very small legal “victories” in the Israeli court system, Israel’s courts have not only legitimated Israel’s actions but have prevented an examination of big picture Israeli practices in favor of examinations of discrete, localized practices so as to maintain the fiction that Israeli actions are needed as part of an overall security effort and not as part of a long-term goal of perpetual control and colonization of Palestinian and Syrian lands.

By focusing on the international law of occupation in the context of Israel’s occupation of Palestine, Professor Aeyal Gross thoroughly and thoughtfully outlines the limitations of international humanitarian law, the risks of using an international human rights framework to the Israeli-occupied Palestinian territory, and the limitations (and tricks) of the Israeli Supreme Court in addressing these issues. As Nimer Sultany points out in his review of the Israeli Supreme Court, “Now, one needs to talk about one checkpoint out of the hundreds of check- points rather than the policy of checkpoints; one portion of the wall rather than the wall; and one settlement rather than the project of colonization. The effect of the Court’s rulings is to marginalize the overall picture. It also forces Palestinians and lawyers representing them to de-radicalize their demands.” The resultant effect is that the Court has justified the home demolitions, settlement construction, torture, fuel and electricity cuts and pillaging, among other practices, while pretending that it is implementing international humanitarian law. This is not simply a case of legal interpretation gone awry but the failure to view law in context of the political system implementing these problems.

But Gross’s analysis is not merely a critique of the application (or the non-application) of international humanitarian law by Israel, but also aims to examine the use of these legal frameworks in the context of an ongoing occupation. By arguing for a normative and functional approach to occupation, particularly in light of changing circumstances (such as in Gaza) so as to avoid legitimizing colonialism and conquest, Gross reframes our understanding of international humanitarian law.

Reading the book, however, one cannot help but feel that lawyers, academics and activists are trying to fit a square peg into a round hole, with these same actors going to great lengths to simply try to ameliorate a daily worsening situation in the form of legal redress (hence the growing attempt to try to use international human rights law arguments despite the risks pointed out by Gross). This is, not, of course, the same argument put forth by occupation-apologists, who seem to try to make claims that Israel is entitled to extreme latitudes when dealing with IHL – (the “pick and choose” types highlighted by Gross). Rather, by attempting to pretend that the occupation is temporary or static – when it is both permanent and dynamic – and using legal tools that fit this pretend state of affairs rather than reality, we are left with endless debates about international humanitarian law which Gross so aptly highlights, documents and critiques.

While the book has no shortcomings, an analysis of apartheid and colonialism would serve the reader well. I find myself in disagreement with only one line: Gross mentions that “what makes occupation akin to colonialism is not the length of the occupation per se but the breach of the normative content” adding that “only insisting on the normative content can save the benevolent reading of this body of international law … and prevent a return of colonialism.” Yet, in the case of Israel, we are not facing a return of colonialism: it has never left.

And while, in the context of Israel’s occupation of Palestine, there are no magic formulas that will end Israel’s military rule over Palestinians and their land, one thing is clear: Israel’s military occupation will not end through a legal “knock-out.” Israel’s courts are too entrenched in preserving the occupation – rather than challenging it – and international mechanisms remain far too weak and flawed to have any real impact. Given this reality, we will continue to see lawyers, academics and activists continue to try to fit square pegs into round holes in an attempt to try to address legally an issue that requires a political solution.

http://opiniojuris.org/2017/08/30/fitting-a-square-peg-into-a-round-hole/

6 Responses

  1. Since Ms. Butto chooses to highlight semantics and language usage, is it totally impossible for her to at least acknowledge that Israelis experienced relief that the PLO terror that began before 1967 (prior to any “Zionist occupation” or “settlement construction”) was dealt a blow, that the constant threat of Arab terror, first launched by the fedayeen from Jordan and Egypt in the early 1950s, was pushed back and that an illegal occupation followed by an illegal annexation by Jordan of territory of the original Mandate which, due to the Arab refusal to accept the UN’s 181 Partition proposal, was now over, thus allowing Jews not only to fulfill rights promised to them in Armistice Agreements but never permitted (like free access to the Western Wall) but to be able to walk through lands belonging to the Jewish historic patrimony denied to them for 19 years? And lands from where at least 20,000 Jews had been expelled from their homes in Hebron, Jerusalem, Jenin, Gaza, etc. by invading as well as local Arab forces in 1948 and previously during the 1920s and 1930s in an ethnic-cleansing campaign led by the Mufti, a Nazi collaborator, one accompanied by murder, rape and pillage? And that after the Khartoum Three Nos, there was no reason to deny Jews the right of “close settlement by Jews on the land” as guaranteed by the League of Nation’s Article 6 of the Mandate decision, especially as those lands were gained in a defensive war and had not been a state of any other people previously?

  2. @Yisrael Medad
    Agree with your views.

  3. Dear Yisrael Medad

    “the PLO terror that began before 1967 (prior to any “Zionist occupation” or “settlement construction”) was dealt a blow, that the constant threat of Arab terror, first launched by the fedayeen from Jordan and Egypt in the early 1950s, was pushed back”:
    The Gaza Strip was the focal point of the Palestinian fedayeen activity. As you probably know the population in the Gaza Strip is mainly composed by families of refugees. Many of them were expelled in 1948 from Najd, Al-Jura and al-Majdal, present-day Or HaNer, Sderot and Ashkelon (a city of Canaanite origins, that included until 1948 al-Majdal). These villages were razed to the ground by the IDF to prevent the return of their inhabitans. The latters were transferred by bus to the camps and the cities that form the present-day Gaza Strip. In the years to follow several cases occurred in which refugees, or “infiltrators”, crossed the armistice lines to collect possessions and pick up unharvested crops, or to raid Israeli settlements adjacent to the Strip. In that phase, a relevant number of Israeli fatalities occurred and, in Benny Morris’s words, “Israel’s defensive anti-infiltration measures resulted in the death of several thousand mostly unarmed Arabs during 1949-56”.

    “and that an illegal occupation followed by an illegal annexation by Jordan of territory”:
    Israel, in Allan Gerson’s words, “never challenged the lawfulness of Jordan’s control of the West Bank” and tried to reach a peace treaty after the Six-Day War which would have returned, with modified borders, the West Bank to Jordan.

    “of the original Mandate”:
    The first document that officially clarified the interpretation of the Mandate’s text (before its ratification) is the British White Paper of June 1922. It pointed out that the Balfour Declaration does “not contemplate that Palestine as a whole should be converted into a Jewish National Home, but that such a Home should be founded ‘in Palestine’”. Furthermore, it stressed that the “Zionist congress” that took place in Carlsbad in September 1921 had officially accepted ‘the determination of the Jewish people to live with the Arab people on terms of unity and mutual respect, and together with them to make the common home into a flourishing community, the upbuilding of which may assure to each of its peoples an undisturbed national development.” It is only in light of these clarifications that the preamble, and Article 2, of the Mandate can and should be understood. It is noteworthy that Zionist consent to the interpretation contained in the White Paper was requested and received before the Mandate was confirmed in July 1922. In Weizmann’s words: “It was made clear to us that confirmation of the Mandate would be conditional on our acceptance of the policy as interpreted in the White Paper [of 1922], and my colleagues and I therefore had to accept it, which we did, though not without some qualms.” (C. Weizmann, Trial and Error: The Autobiography of Chaim Weizmann (Westport: Greenwood, 1972), p. 208.)

    ” which, due to the Arab refusal to accept the UN’s 181 Partition proposal”:
    Uri Avnery: no one asked the Arab Palestinians whether to accept or reject anything. If they had been asked, they would probably have rejected partition, since – in their view – it gave a large part of their historical homeland to foreigners.

    1980 UNSC – res. 476: “acquisition of terriotry by force is inadmissible….reaffirms the overriding necessity to end the prolonged occupation of Arab territories occupied by Israel since 1967, including Jerusalem”. This was a simple call for withdrawal, without reference to any conditions.

    ” thus allowing Jews not only to fulfill rights promised to them in Armistice Agreements but never permitted (like free access to the Western Wall) but to be able to walk through lands belonging to the Jewish historic patrimony denied to them for 19 years?”:
    True, Israel justifies its conquest of Jerusalem East in 1967 with the fact that between 1948 and 1967, the Jews had no right of access to the Wall Wailing . This refusal , which lasted twenty years , did not have any Muslim motivation , as Jews had free access to Jerusalem in the previous twelve centuries of Muslim rule the city, while the same access they had been forbidden under Christian domination , both Byzantine crusade. The question of the Wailing Wall is a consequence of 1948’s War. In the course of the war Jewish forces occupied the five mixed cities, nine cities entirely Arab, and five hundred Palestinian villages were razed and mainly distributed to settlers. On the other hand the ethnic cleansing deprived of the house 750,000 Palestinians , Christians and Muslims , the inhabitants of these villages and towns.
    And while between 1948 and 1967, Jews were forbidden access to the Wailing Wall, for those refugees Palestinians and their descendants there was and remains the prohibition of access to their lands and their homes in Israel .

    “20,000 Jews had been expelled from their homes in Hebron, Jerusalem, Jenin, Gaza, etc. by invading as well as local Arab forces in 1948 and previously during the 1920s and 1930s in an ethnic-cleansing campaign led by the Mufti, a Nazi collaborator”:
    True, shameful. But this has to provide in the context of hundred of Palestinian villages razed to the ground and hundred of thousand of Palestinians expelled from their homes. Context is all, one would say. On the “Nazi collaborator”: 6000 Palestinians fought the Nazis together with Allies http://storicamente.org/al_husseini_kamel

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