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

[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.