31 October 2007 - Israel/Palestine: Week 7



Harvard Law School’s class on legal issues in the Israeli/Palestinian conflict re-convened this week, after the fall break. This time, there was only one reading assigned for discussion: a 2005 article in a Berkeley law journal by Orna Ben-Naftali, Aeyal M. Gross, and Keren Michaeli entitled “Illegal Occupation: Framing the Occupied Palestinian Territory” (23 BERKJIL 551 if you have a WestLaw subsription).

The authors start with a question which they believe has been ignored: whether Israel’s occupation of the West Bank and Gaza is legal. The answer, which you can find throughout the literature on the subject, is yes. But the authors strive to prove otherwise, indulging in a babble of legal jargon that ends by describing law as “an apology for power,” thus dismissing the legal question regardless of the answer.

They attempt to suggest a new legal perspective on the occupation, one that “locates the occupation within a normative framework that differentiates between legality and illegality and may both resolve the specific question of the legality of the Israeli occupation and redefine the contours of the legal discourse on occupation.” In fact this argument is simply re-heated radicalism of the “critical legal” variety.

To be legal, the authors suggest, an occupation must not grant sovereignty or title to the occupying power; must be managed as if the population were beneficiaries of a trust; and must be temporary and not indefinite. The third condition, they argue, is fundamental to the first two; if the occupation is not temporary, then both of the first two principles are also violated and the occupation is illegal per se.

This is a test designed to ensure that Israel fails. It also ignores the legal consequences of the occupation of the West Bank and Gaza by Jordan and Egypt, respectively. The authors’ very definition of occupation is derived from another scholarly article, not from any legal authority. They acknowledge their definition of legality is expansive—a key step in the obfuscation we have seen elsewhere.

The authors do construct a history of the law of occupation, one that turns the law of occupation into one dealing with human rights rather than conflict between states. However, their analysis is highly selective. For example, they cite approvingly the ICJ ruling on the security barrier, and use it to justify both their definition of occupation and their accusation that Israel’s occupation is illegal.

Where the actual historical record is concerned, they again seem to resort to obfuscation, implying Israel may not have occupied the territories in self-defense: “the most convincing basis for the rejection of the argument that legitimizes the acquisition of territory through use of force in self-defense is the frequent inability to distinguish between the aggressor and the victim in a particular conflict.”

The authors go even further, insisting not that the means through which occupation came about are irrelevant, but that self-defense cannot be a justification for occupation. They go on to argue—without examining any evidence to the contrary—that Israel has not been good trustee of the interests of Palestinian residents of the territories. They also totally ignore the Palestinian and Arab role.

This latter point is where their argument really falls apart, because the Israeli occupation was initially designed to be temporary, except in parts of East Jerusalem. The rejectionism of Arab states and the violence of Palestinian terror groups, then and now, has supported the Israeli refusal to withdraw without an enforceable agreement. (There are other reasons to withdraw anyway.)

Instead of honestly weighing a defense of Israel against the charges they lay against it, the authors compare the occupation to the most extreme examples of injustice, such as apartheid. They largely ignore any evidence to the contrary—such as, for example, the Israeli disengagement from Gaza, which was already established Israeli government policy at the time that this article was written.

The authors recommend the territories be transferred to international control, failing which Israel should be subject to a new “framework for an entire body of international crimes.” The injustice of this conclusion is staggering. The “permanence” of the occupation is more of a political problem than a legal one. It makes negotiations harder, but it is not the fundamental obstacle to peace.

Our discussion in class actually focused on the weaknesses of the article, partly because two of us were quite aggressive in pointing out its flaws, and partly because the professor was trying to urge some of the pro-Palestinian students to come up with good legal responses to our arguments. But legality is a red herring. The fate of the occupation will be decided in Annapolis next month, not at The Hague.

(red herring picture from http://www.barryfalls.com)