[This is the second part of a six-part series associated with a Jadaliyya roundtable discussing the relevance of occupation law to the Palestinian-Israel conflict at this historical juncture. Participants include Darryl Li, Lisa Hajjar, Nimer Sultany, Asli Bali, Ahmed Barclay, and Dena Qaddumi. A description of the roundtable can be found here.]
The West Bank and the Gaza Strip are the quintessential “hard case” in international humanitarian law (IHL). With the benefit of hindsight, we know that the authors of the 1949 Geneva Conventions were not very good at predicting the future when they promulgated the Fourth Geneva Convention (GCIV) to regulate the governance of territory and populations occupied in war. Rather, they were responding to the treatment—often horrific—of occupied populations and territories during World War II. When that war ended, so did the military occupations of foreign countries (as distinguished from continuing colonial occupations which were not addressed by IHL until the 1970s). Recent past experience guided the authors of GCIV, who deemed that military occupations are temporary, that territories conquered during a war cannot be lawfully annexed by the captors, and that wars end.
Yet the West Bank and Gaza have been occupied by Israel since 1967, and the state of (regional) war that contributes to the sustenance of that situation, although only intermittently “hot,” is not ending any time soon. Darryl Li’s “Occupation Law and the One-State Reality” addresses this situation:
For over forty years, ten million people between the Jordan River and the Mediterranean Sea have lived under a single segregated political regime – the State of Israel. Occupation law is not merely an inadequate tool for analyzing this regime; it can also help legitimize the very spatial arrangements upon which it depends.
Li’s argument, as I understand it, is threefold. First, the longevity of this occupation and the extreme transformations that have occurred since 1967 diminish the utility of GCIV as a framework to resolve the status of the West Bank and Gaza. Second, the Israeli government’s disregard for its rules and norms—and the international community’s failure or inability to enforce its provisions—has created a de facto “one-state reality.” Therefore, third, the attachment to GCIV by scholars and critics of the occupation, which hinges on the dichotomy between “occupied” (West Bank/Gaza) and “unoccupied” (Israel inside the 1949 Green Line) territory, has come to “partition the imagination.” His point is that the one-state reality begs for an approach that is not contingent on the presumptive temporariness of occupation or the kind of dichotomous “otherness” that undergirds “the law of occupation.”
I concur with Li’s assessment about the one-state reality and the inadequacy of dichotomous thinking to address the empirical (politico-legal-demographic) complexities among the various categories of people who reside between the Jordan River and the Mediterranean Sea in a structurally unequal relationship (i.e., Jews, Arabs, Druze; citizens, occupied populations; West Bankers, Gazans, East Jerusalemites; settlers, refugees, and so on). There is only one state in Israel/Palestine, and that state is Israel.
However, I think that Li, in his effort to think outside of the partitioned-imagination box, attributes to “occupation law” a greater explanatory power for contemporary politics than it merits. He writes:
Thanks to occupation law’s assumption of otherness, classifying the Gaza Strip and West Bank as occupied territories means that by definition they were not part of Israel to begin with. Moreover, they have the unique status of already being “sovereign voids” in the sense that they did not transition from their status as colonial territories to belonging to any recognized nation-state.
I would urge a shift from a law-explains-politics emphasis to the reverse: politics explains law. This would provide a different (more sociological) route to get to the same conclusion about the one-state reality and the inefficacy of GCIV in protecting the rights of an occupied Palestinian population let alone actually bringing about an end to the occupation. (Legally, as Li correctly points out, IHL is entirely silent about the status and rights of Palestinian citizens of Israel). Take, for example, the quote above. I would argue that laws do not assume anything; people do. And what people—that is, empowered people like government officials, lawmakers and judges—do with those assumptions constitutes “law in action.”
Israeli officials have not ignored IHL. On the contrary, the history of Israel’s control over the West Bank and Gaza involves a great deal of law in action. These actions are marked by prodigious, decades-long efforts to interpret the meaning and applicability—or, rather, the ostensible inapplicability—of GCIV to Israel’s rule in the territories seized in 1967 in order to “legalize” practices like Jewish settlements and collective punishments that defy international consensus. “The law” did not make this happen (nor did law predetermine the outcome of particular and odious Israeli interpretations); people did.
I will illustrate my politics-explains-law point by drawing on the example of Israel’s historic engagement with IHL generally and GCIV specifically. This engagement began before the 1967 War and, indeed, anticipated the occupation. The power of the Israeli state, the determination of influential officials, the novelty of the politico-legal status of the West Bank and Gaza, and the incapacity of the international community to head off, let alone reverse, consensus-defying interpretations all contributed to the vast gap between “law in the books” and law in action. The manifestation of this gap is, as Li notes, the one-state reality. But how did we get there?
The fact that the Israeli military court system was established on the third day of the Six Day War illustrates the state’s preparedness for occupation. This was one of the first official acts of the new military administration in the conquered West Bank and Gaza. These preparations began in earnest in the early 1960s, spurred by political instability in Jordan in 1963. The planning was informed by Israel’s brief occupation of Gaza during the 1956 Suez War, which ended when the United States and the Soviet Union uncharacteristically allied themselves to force a withdrawal back to the 1949 armistice border (i.e., the Green Line).
Meir Shamgar, who served from 1961 to 1968 as Israel’s Military Advocate General (MAG, the army’s top lawyer), played a leading role in these preparations. He developed courses for officers to train them for the challenges of governing a foreign population, and he created a Manual for the Military Advocate in Military Government “a long time before hostilities began.” According to Shamgar, this manual included
…a large set of precedents of military government proclamations and orders, vital at the initial stages of military government, as well as detailed legal and organizational instructions and guide-lines. These facilitated, from the outset, the legal and administrative activity of the sections, according to a previously planned scheme.
What kind of reasoning informed this “previously planned scheme”? Long before 1967, Shamgar had conceived that the extension of Israeli control over any additional part of Eretz Israel (i.e., the West Bank and Gaza) would not constitute a “foreign occupation” (territorially, that is) because Jews had historic rights in these areas. This was the core of the Revisionist Zionist ideology to which he subscribed. In the yishuv era, Shamgar was a member of the Irgun, a radical right-wing Jewish paramilitary organization headed by Menachem Begin. Irgun (like the even more extremist breakaway LEHI/Stern gang) was distinguished from mainstream Zionist organizations by the unwillingness of its members to brook any territorial concession on future Jewish sovereignty over all of Eretz Israel and rejection of the policy of (armed) restraint. They used armed violence and terrorism (e.g., the bombing of the King David Hotel in Jerusalem and the massacre of Deir Yassin) to advance their Iron Wall agenda. Shamgar was arrested in 1944 for anti-British activity. The British detained him and other members of the Irgun and LEHI without trial. They then rendered the men to detention in East Africa where they remained until after the establishment of the state of Israel in 1948. The Irgun of the yishuv became the core of the Herut Party after independence, which later evolved into the Likud.
Shamgar’s record of involvement in a Jewish terrorist organization and his right-wing politics—in a country dominated for decades by the more liberal-Zionist Labor Party—did not inhibit his rise to power. On the contrary, after 1967, Shamgar used his position as a high-ranking policy maker to institute his Revisionist Zionist views. These became the cornerstone of Israeli doctrine on the legal status of the territories and the Israeli state’s rights within them. In 1968, Shamgar became Attorney General, then a justice on the Israeli Supreme Court, and finally its chief justice. He played an enormously important and political role in establishing “Israel’s” positions on the “law of occupation.”
What were the premises of Shamgar’s-cum-Israel’s positions on the law of occupation? First, Shamgar reasoned, Israeli control of the West Bank and Gaza would not constitute “an occupation” because the displaced rulers, Jordan and Egypt, were themselves occupiers since the 1948 War. This was premised on the claim that a territory is occupied only if it had been part of the sovereign domain of the defeated and expelled state. According to Shamgar’s formulation, Israel would not be occupying but “administering” these “disputed” territories whose status was sui generis.
Second, Shamgar contended, GCIV was not applicable to Israel’s control of these territories on a de jure basis. The politics of this position was explicit: If Israel were to regard itself as bound by the GCIV, the government would be acknowledging its own status as an “occupant” which would give Jordan and Egypt ex post facto status as displaced sovereigns which they did not have, and would compromise Israel’s prospects to claim permanent control to all or part of these areas in the future. The obligations and restrictions of GCVI could be sidestepped by interpreting the Geneva Conventions as applicable only and exclusively to High Contracting Parties (i.e., state signatories to this body of IHL). While Jordan, Egypt and Israel were all parties to the Geneva Conventions, the former two were not sovereign in the areas from which they had been expelled in 1967 and, therefore, GCIV was not binding on the latter, Israel, in this context.
Third, Shamgar maintained that while IHL did not apply de jure, the state would abide on a de facto basis with its “humanitarian provisions.” Neither Shamgar nor any other Israeli officials ever specified which provisions they regard as humanitarian. Again, the politics of legal interpretation is explicit: the International Committee of the Red Cross (ICRC), official guardian of the Geneva Conventions, regards them—correctly—as humanitarian in their entirety. Shamgar noted but dismissed the ICRC’s position: “This difference of views [between him/Israel and the ICRC] was mainly and primarily of a theoretical nature, because the Israeli Governmental [sic] authorities [i.e., himself] had decided to distinguish a priori between the formal legal conclusions arising from its approach and the actual observance of the humanitarian provisions of the Convention.”
The fourth premise is a particularly vivid example of the kind of hyper-sovereigntist politics that Shamgar-cum-Israel embodies. It is the claim that GCIV could not be binding on Israel even if there was no dispute over the status of the West Bank and Gaza because at least part of the convention constituted “conventional” rather than “customary” international law (the former binding only on signatories, the latter universally applicable). In the Israeli legal system (as in many others), conventional law does not supersede “local” law unless the Israeli Knesset were to enact the convention as domestic legislation or until the state recognized that it had ripened into custom. However, this particular position actively (proactively, I would suggest) disregards the fact that there is an international consensus that the Geneva Conventions are customary international law, demonstrated by the fact that every state in the world has signed or acceded to them.
A particular brand of right-wing politics instigated these interpretations of IHL.Similarly, in the aftermath of 9/11, the right-wing politics of officials and lawyers in the Bush administration instigated a pattern of legal interpretation to assert the inapplicability of the Geneva Conventions to the “war on terror.” Israeli officials, and more recently American officials, asserted that the statelessness of enemies was a legitimate and valid reason for the state to disregard—that is, to feel unbound by—the rules and norms of IHL.
Israeli officials like Shamgar pioneered the interpretative disconnect between human beings and humanitarian law. Asserting that IHL pertains exclusively to the rights and duties of sovereign states (the High Contracting Party-only position) made it possible to argue that stateless people in militarily conquered areas were not their intended beneficiaries. The politics of interpretation on the legal significance of Palestinian statelessness went like this: Because there never had been an independent, sovereign state of “Palestine,” the Palestinian people could not be the lawful sovereigns of the West Bank and Gaza because nothing in international law prescribes the recognition of sovereignty to a “non-state,” and nothing in law demands the creation of a heretofore nonexistent state in territories seized in war.
It is true, as noted above, that the authors of GCIV did not anticipate a situation like Israel’s occupation of the West Bank and Gaza. However, I would stress that it was not “the law of occupation” but the Israeli interpreters (and military, political and judicial enforcers of their interpretations) that created the rights-violating, highly discriminatory, and unequal one-state reality that prevails today.
Li is absolutely correct that homage to GCIV will not alter the facts on the ground. I agree with his concluding point “that as partition recedes as a viable option, the evolving situation on the ground raises difficult legal questions that require sustained consideration.” However, I believe that the rules and norms enshrined in this international law continue to provide an important tool (and not just an abstract point of reference) to press an international agenda to try to force the Israeli state to alter the way it rules on both sides of the Green Line.
For it is IHL, above all, that allows us to reject spurious claims that the occupation of Gaza has “ended.” It is IHL that allows us to reject the massive use of armed force as a legitimate and legal option in either Gaza or the West Bank because they remain occupied territories and therefore Palestinians residing there are, legally, “protected persons.” Serious violations of IHL are war crimes which are legally, albeit very imperfectly, prosecutable in foreign court systems. The use of courts and legal processes to punish or restrain state agents and other powerful actors who engage in serious violations of IHL should continue to be the negative/non-violent side of the struggle for Palestinians’ rights.
[Click here to read Part III by Ahmed Barclay and Dena Qaddumi.]