Occupational Camouflage

I applaud the work of the Levy committee and its recommendation that Israel’s presence in the West Bank no longer be regarded as occupation.

Background: A government-appointed committee headed by retired Supreme Court judge Edmond Levy issued a report this week to the effect that the West Bank is not occupied territory, after all.

That might surprise the Palestinians, who have been living under the fist of what they thought was an occupation for over four decades, but it’s entirely in keeping with the sentiments of the committee’s patron, Prime Minister Netanyahu, who established it as a means of extricating himself from a messy dispute over the status of Jewish settlements built in the occupied territories without government approval.

If the committee’s findings are accepted, Jewish settlers will be able to steal and settle on private Palestinian land, without the land-owners having recourse to the Israeli legal system. Recent rulings by the Supreme Court in favor of Palestinian petitioners have annoyed Netanyahu and put him at odds with the settlers, which is not a comfortable position for a politician who faces re-election within the next year.

It’s not certain that the committee’s report will be adopted. The alacrity and obedience with which the committee did its master’s bidding seems to have embarrassed Attorney General Weinstein, who himself is no slouch when it comes to recognizing the buttered side of the bread. He is going to have to decide between fealty and common sense.

Legal commentary in the media has highlighted the absurdity of the committee’s findings. For over 45 years, successive Israeli governments have justified their actions in the occupied territories under the international law of belligerent occupation – and the Supreme Court has repeatedly accepted that stance. In 2005, the court ruled that “The legal regime that applies [in the occupied territories] is determined by the rules of public international law and especially the rules relating to belligerent occupation.”

A number of prominent legal people have pointed out the potential international ramifications of accepting the report. Most seem to believe that changing Israel’s legal status in the territories from belligerent occupier to something else (it’s not clear what) will mean that all land requisitioned by military decree will have to be returned to its owners. Seeing that military requisition of land is at the heart of the occupation and the settlement enterprise, returning such land is unthinkable.

While both government and the court have repeatedly affirmed the legal status of belligerent occupation over the years, they have been a lot less eager to comply with the provisions of international humanitarian law that apply in such situations. Israel rejected the applicability of the 1949 Fourth Geneva Convention and instead devised a legal hodgepodge, comprising laws that had existed before the occupation, new military regulations and edicts issued by local military commanders.

That legal hack gives the impression of the rule of law, while in reality allowing arbitrary rule by the military authority. The sole purpose of the law in the occupied territories is to ensure the secure and efficient functioning of Israeli rule. The law as protection for the individual against the sovereign is not a concept that exists in Israel’s occupied territories. And it goes without saying, of course, that Israeli  settlers are not subject to local law. Israeli civilian law has an extraterritorial dimension that applies to them.

Ironically, the Supreme Court seems to have emerged from the criticism of the committee’s report smelling like roses. It shouldn’t and it doesn’t.

While it is common for people of a liberal bent to regard the Supreme Court as a beacon of legality and decency in a very dim firmament, the reality is a lot murkier. The court has consistently ruled in favor of the coercive measures of military commanders in the territories and has sanctioned Israel’s idiosyncratic (to put it mildly) interpretation of international humanitarian law.

The court has thus lent its prestige to the pretense of legality in the territories and given a stamp of moral approval to the occupation.

While I share the general derision for the Levy committee and its ludicrous report, I believe it has served two very useful – though inadvertent – purposes.

The first is that it highlighted the abject role of the Supreme Court since 1967. If the committee’s report leads to a reappraisal of the court’s conduct in providing legitimacy and moral justification for the occupation, it would have earned its keep.

Secondly, and more significantly, by questioning the legal status of the occupation, the committee drew attention to the concept of occupation as well. That has been a long time coming. Occupation has the connotation of being temporary and impermanent; something that will pass. That quality has been at the root of Israel’s grip on the Palestinian territories, as well as being a key psychological tool used to control the population and a very useful fig-leaf for Israel since 1967.

Temporariness has served Israel extraordinarily well. It has played its part in keeping the Palestinians quiescent for most of the time – if it’s temporary, then there’s still hope that things will change – and it has kept the international community at bay for a generation-and-a-half.  Would American presidents have been quite as forgiving of Israel if they had known that the situation wasn’t temporary? That Israel had absolutely no intention of relinquishing the territories?

It’s no exaggeration to say that the implied temporary nature of the occupation has been the bedrock of Israeli foreign policy since 1967.

Professor David Kretzmer wrote that there are only two possible legal regimes for territory conquered in war – outright annexation or belligerent occupation. Israel, he points out. “chose the latter path.” I’m not a jurist, of course, and far be it for me to take issue with Prof. Kretzmer, who I admire tremendously. But conceptually there are other possibilities.

The one that seems most appropriate to me is colonialism. It does not have the connotation of being temporary and it accurately describes the situation in the West Bank: “the establishment, maintenance, acquisition and expansion of colonies in one territory by people from another territory.”

I humbly suggest to Netanyahu that he adopt the term permanent colonial rule as the formal description of Israel’s presence in the Palestinian territories and continue doing what all self-respecting colonial powers do – brutalizing the inhabitants, confiscating the land and exploiting the resources.

After all, Israel is doing that anyway, and the Levy committee has torn down the camouflage. Let’s call it what it is.