22 July 2007 - Israeli law and the occupation

This weekend, I looked through some of the Israeli government replies to accusations that it fails to uphold human rights norms in the occupied territories. One early response was a pamphlet called The Protection of Human Rights in Areas Admitted by Israel: United Nations Findings and Reality written by Dov Shefi in 1973, contesting UN reports of Israeli rights abuses in Gaza and the West Bank.

The pamplet describes the legal posture adopted by Israel in the occupied territories, as well as the unfair composition and conduct of the UN investigations. In one bizarre section, the author disputes the testimony of a witness who told the UN he had been castrated by Israeli forces by producing the man’s medical records to show he had his testicles surgically removed due to infection before the war.

Another Israeli response was produced by the Israel National Section of the International Commission of Jurists (ICJ) in 1981, entitled The Rule of Law in the Areas Adminsitered by Israel. It was written in response to an earlier report by Raja Shehadeh and Jonathan Kuttab, called The West Bank and the Rule of Law, which attacked Israeli practices and had been published and distributed by the ICJ.

The booklet highlights the fact that the personal jurisdiction of Israeli courts had been extended to the occupied territories, allowing any resident access to the judicial system of the occupying power. This, the booklet claims, “is perhaps the most meaningful expression of the Rule of Law in the Region.” It describes various other legal checks and balances that Israel had adopted in the territories.

A more recent response to international criticism is Israel, the “Intifada” and the Rule of Law, a short book published in 1993 by the Israeli Ministy of Defense and put together by the office of the Military Advocate General of the Israel Defense Forces. The book endeavors to explain that the Rule of Law operates in the territories, qualified only by the limited doctrine of military necessity.

The book states that the Rule of Law in the territories “can be said to rest on four main pillars”: 1. International Law, specifically the humanitarian provisions of the International Law of Belligerent Occupation; 2. The doctrine of legality, meaning every government action and power must have specific authority; 3. Israeli administrative law; and 4. Judicial review of the Israeli court system.

Finally, I looked at David Kretzmer’s Occupying Justice: The Supreme Court of Israel and the Occupied Territories, which examines the record of Israel’s High Court of Justice (through 2001) with regard to the occupied territories. In his introduction, Kretzmer quotes some of the early studies above, noting that “[j]udicial review has frequently been mentioned in response to criticism of government actions in the occupied territories.” (1)

He then argues (2-3, footnotes omitted):

“Actually, the Court has interfered infrequently in decisions of the military. The negative attitude of critics stems mainly from the notion that mere accountability of the military to an outside body undermines its authority, that delays caused by judicial review reduce the deterrent effect of some measures (such as deportations and house demolitions), and that pressure by judges or even the threat of judicial review have often forced authorities to back down from proposed action.

“From a radically different perspective, it may be argued that the main function of the Court has been to legitimize government action in the Territories. By clothing acts of military authorities in a cloak of legality, the Court justifies and rationalizes these acts. Even if this has not produced legitimization in the eyes of residents of the occupied territories, it has done so for the Israeli public, in whose name the military authorities are acting, and for foreign observers sympathetic to Israel’s basic position. The main evidence in support of this view is that in almost all of its judgments relating to the Occupied Territories, especially those dealing with questions of principle, the Court has decided in favor of the authorities, often on the basis of dubious legal arguments. It is true that in a few cases the Court has decided against the authorities. However, these ‘landmark cases’ serve only to enhance the legitimizing function of the court by reinforcing the ‘image of the court as an impartial body which boldly challenge[s] the government in pursuit of justice.”

This is a bold argument, and Kretzmer re-visits it in his conclusion:

“In its jurisprudence relating to itself, the Supreme Court of Israel has earned a well-deserved reputation as a rights-minded court. . . . This rights-minded approach is conspicuous by its absence in decisions relating to the Occupied Territories. The jurisprudence of these decisions is blatantly government-minded.” (188)

Kreztmer elaborates:

“If we restrict our attention to actual Court decisions . . . it is difficult to escape the conclusion that the Court’s legitimizing function has dominated. But, when the overall picture is considered, the conclusion is far less clear, since the Court’s shadow has played a significant role in restraining the authorities.” (190)

He goes on to explain that the Court’s apparent schizophrenia—“forging a democratic and essentially liberal body of jurisprudence” while “consistently display[ing] a government-minded approach in decisions relating to the Occupied Territories”—is partly the result of the ongoing conflict. Judicial attempts at neutrality, he observes, “cannot be maintained when the dispute is perceived to be an ‘external dispute’ involving a challenge to the very authority of the state.” In addition, he says, challenges to the identity of Israel as a Jewish state are also perceived as security threats, and this had an effect on early cases about whether to restrict the participation of radical Arab political parties in Israeli elections.

Kretzmer winds up by returning to the radical question of whether the Court legitimizes occupation, asking: “Is it possible that in the medium or long term, the very lack of restraint that would have resulted from the absence of judicial review would have made the occupation less palatable for Israeli elites, and that the pressure to end the occupation by political settlement, which began after the Intifada started in 1987, would have been felt much earlier? I leave the reader to speculate on this question.”

Well, here are my speculations: “no.” I think the absence of judicial review would not only have hurt the interests of Palestinians, but would have hidden the occupation even more from Israeli elites, while entrenching military authority from the start in a way the court would have found even more difficult to unravel later.

I like Kretzmer’s overall analysis, and his scholarship seems flawless, but I think his conclusions rest on three faulty assumptions. The first is that the continuation of the Israeli occupation is Israel’s fault, and depends primarily on the posture adopted by Israeli elites. The second is the political fallacy, common to many on the radical left, that things have to get worse before they can begin to get better.

The third and perhaps most problematic assumption is that the courts “legitimize” bad government laws and policies by dealing with them. This confuses legal legitimacy with political and moral legitimacy. It is true that the rule of law, which is a bedrock principle of liberal democracy and justice, is different from rule by law, which can be—and often is—practiced by authoritarian governments.

However, courts are constrained to act within the law. The difference between liberal and illiberal systems of justice is that in the latter the courts have no way to appeal to an authority outside the law—such as a constitution or principles of right—in opposing or overturning unjust laws. Israel does not have a constitution but its basic laws and judicial traditions allow the High Court of Justice to review both Knesset legislation and military actions in the occupied territories.

We can get at the heart of the matter by asking whether Israel’s highest court could have overturned the occupation itself. Not only would this have required the Court to have sweeping powers of review it did not possess at the time, but it would also have given the Court the power to undo the military outcomes of a war with Jordan that Israel tried to avoid. It would have meant rule—military rule—by the Court.

The underlying problem here—aside from the political factors of continued Arab intransigence and Israel’s undue deference to the settler movement—is Israel’s lack of a formal constitution. Countries, and judicial systems, can survive and thrive without a constitution—or fail even though they have one—but in Israel’s case there is too much legal and political ambivalence to sustain clear principles of justice.

That has provoked extensive rule-making by an activist Court, which in turn has prompted the government to try to reel in the Court’s powers. That would threaten to bring about a constitutional crisis—or would, if there were a constitution. There is an urgent need for a constitution to replace the current ad hoc system. Until then, I think the verdict on the Court must be that it has done a remarkable job under the circumstances, and added to Israel’s—not the occupation’s—legitimacy.