21 December 2007 - Israel/Palestine: Final Paper

In re Israel/Palestine (Pollak, J., Dissenting)

Introduction

This course considered “the case against Israel” in the strongest possible terms. Each week, we examined a new charge, backed by the best evidence Israel’s critics could muster. Some opposing evidence was admitted; both “pro-Israel” and “anti-Israel” research assistants were enlisted to suggest materials; and allowance was made for all points of view in our deliberations. Yet our classroom “court” was stacked heavily in favor of the “prosecution.” Israel stood alone in the dock for most of the proceedings. The professor, as “prosecutor,” also played the role of “presiding judge,” deciding which readings to include and exclude, what topics should be addressed, who should speak and when. The duties of “defense counsel” often fell to a few students acting on their own initiative. The “jury” of enrolled students was also biased against the accused: this was a self-selecting panel, selected further by the prosecutor.

Israel did not receive a fair trial here. Any “conviction” would be reversed on that basis alone. Yet it was possible, even based on the largely one-sided evidence presented, to acquit Israel on every charge. I therefore respectfully but vigorously dissent from the preconceived and unjust judgment towards which this course earnestly attempted to steer its participants.

Charge 1: Israel expelled the Palestinians

The evidence that was introduced to substantiate this charge came largely from sources that were discredited by their wanton inaccuracy. Historian Ilan Pappé, for instance, claimed that Jewish forces “began” the 1948 war, but also admitted they had acted “in retaliation.”[1] He also claimed that Israeli forces had been provoked by mere acts of “vandalism,”[2] though evidence from Benny Morris’s historical account proves that these were in fact murderous terror attacks.[3]

Morris argued convincingly that the Palestinian refugee problem had been created as the result of multiple factors. Even if Israeli actions such as “Plan Dalet” had played a role in Palestinian flight late in the war, we cannot conclude that they met the legal standard of proximate cause. As Morris noted: “Plan D[alet] was not a political blueprint for the expulsion of Palestine’s Arabs.”[4] The contributory role of the Palestinian Arabs and the surrounding Arab states must also be considered. The immediate cause of the 1947-49 war was the violent rejection of U.N. Resolution 181 by the Arab world. Such violence had a history dating back to the Arab revolt of 1936-39, the 1929 Hebron massacre, and anti-Jewish riots of 1920.[5] Later, after the war, the Arab states failed to take reasonable steps to mitigate the suffering of the refugees.

As Alan Dershowitz pointed out, “although some Jews were happy to see them leave,” and Israel’s military offensive “certainly contributed to the flight,” there is no way to assign all or even most of the blame to Israel.[6] Even Palestinian historian Nur Masalha admitted there was no “master plan” to expel the Palestinians.[7] Israel is therefore not guilty of this charge.


Charge 2: Israel wrongly expropriated Palestinian lands

Israeli legal scholar David Kretzmer provided evidence that the Absentees’ Property Law of 1950 and similar laws affecting Arab property were “draconian.”[8] In inquiring whether these laws were justified, we must also weigh Israel’s legitimate national interest in securing its borders and resettling Jewish refugees. In addition, we must consider several mitigating factors. Israel’s High Court of Justice (HCJ) frequently intervened to protect Arab property, and fair compensation was often paid to owners.[9] Today, Arabs may lease lands from the state as well as the Jewish National Fund, and discrimination in property ownership has been declared illegal.[10] Palestinian ordinances, by contrast, make land sales to Jews a crime punishable by death.[11]

The prosecution then sought to show that Israel could be viewed as a colonial power, and drew analogies to the Native American and Mexican cases.[12] These analogies are both irrelevant. Israel did not follow a characteristic settler-colonialist pattern of development,[13] nor did Israel foment war or violate treaties to seize Arab land. Furthermore, lands obtained prior to Israel’s independence were purchased, not expropriated.[14]

The prosecution’s description of Israel as an “ethnocracy” is a crude caricature of Israeli society. Arguments by Sandy Kedar contended that Israeli property law enforces existing inequalities,[15] but this critique could also apply to any other country. There may be good reasons to revisit Israel’s land laws, and to guard against attempts to weaken Arab land rights.[16] But these are political, not legal, concerns. Weighing all the factors, the verdict must be not guilty.

Charge 3: Israel’s Jewish character violates Arab rights

Many states in the Middle East and beyond have an explicitly ethnic or religious character. The first sentence of the Irish constitution cites the Holy Trinity;[17] the very names of some of Israel’s neighbors refer explicitly to their Arab identity.[18] Palestine’s Draft Constitution defines Palestine as “part of the Arab and Islamic nations.”[19] The prosecution’s argument, taken to its logical conclusion, would require Jews to forfeit their right to self-determination so that Arabs might fulfill theirs, in defiance of international law. It would also require us to credit the assumption, implied by Hassan Jabareen, that Arab claims to the land are superior and unique.[20]

Ruth Gavison provided a convincing justification for Israel’s legitimacy as a Jewish state, based on the universal right of self-determination and on a utilitarian test that balances the benefits of a Jewish Israel to Jews against the costs to Arab citizens.[21] She argued that the Law of Return “does not discriminate among citizens. It determines who may become one,”[22] in a context in which non-Jews, including Arabs, still immigrate according to ordinary procedures.[23] She also pointed out that Arabs in Israel today enjoy the liberty to oppose Israel’s Jewish identity democratically, and that Israel’s Jewish identity may violate Arab interests, but not Arab rights.[24]

It may be prudent for Israel to consider providing special recognition and protection to its Arab minority, especially as it begins the long-overdue task of writing its constitution. Alan Dowty suggested that the Arab minority is nearing the twenty percent threshold that is associated in other countries with ethnic power-sharing arrangements.[25] But Israel’s Jewishness, in itself, violates no fundamental individual or collective Arab right. Israel is not guilty of this charge.

Charge 4: Israel discriminates against its Arab citizens

Israeli law bars discrimination against Arabs. In addition, Israel has begun to close the gaps in public spending between Jewish and Arab municipalities, and has begun to implement affirmative action programs in the public sector to address persistent inequalities.[26]

The prosecution argued that such legal equality was insufficient. One reading criticized what it called “facially neutral” discrimination, which allegedly allowed inequalities to persist in the allocation of public resources.[27] The authors suggested that Israel should adopt new procedural review mechanisms; these may be useful as policy, but they are hardly evidence of de jure discrimination. The prosecution also produced Yishai Blank, in person, to testify about educational discrimination. Under examination, he retreated from his claim that there was de jure discrimination in Israel and began referring to “quasi-legal discrimination.” In his assigned article, he argued that Israeli courts could have adopted a more activist approach towards school integration, but admitted that they had defended it on several occasions.[28] He downplayed the element of parental choice—that Arab parents might wish their children to attend Arab schools.

In sum, the evidence tended to disprove the prosecution’s allegations about official discrimination against Arab citizens. Inequality between Jews and Arabs in Israel remains a serious social and political challenge that may require more active legislative intervention. But Israel is not guilty of enacting, or even tolerating, legal discrimination against its Arab citizens.

Charge 5: Israel discriminates against Mizrachi Jews

Of all the charges against Israel, this was the most malicious. Relations among groups of Israeli Jews are extraneous to the Israeli-Palestinian conflict. Moreover, there is simply no legal discrimination against Mizrachi Jews in Israel. Israel has gone to extraordinary lengths to assist Jews from Arab countries, and Ethiopian Jews, to immigrate. Mizrachi Jews have climbed the highest rungs of Israeli society. These facts are uncontested. Even Claris Harbon’s text admitted: “Mizrahis were never legally categorized as a discriminated group by de jure legislation.”[29] It is true that some Mizrachi Jews occupy low a socioecoomic status, and some may have suffered past discrimination.[30] These problems are not unique to Israel and pale in comparison to the legal and social disabilities suffered by Jews in the Arab world, which were not explored. Moreover, as the second speaker acknowledged, the majority of Mizrachi Jews would reject the prosecution’s characterization of their status, steeped as it was in radical anti-Zionist jargon.

Israel is clearly not guilty of this charge. It is worth noting that while the fate of Jewish refugees from Arab countries was largely overlooked in examining the Palestinian refugee problem, various claims about those refugees were admitted as relevant to accusations of discrimination against Mizrachis. Such manipulation of the historical evidence is simply unfair.

Charge 6: Israel’s occupation of the West Bank is illegal

It is a matter of indisputable historical fact that Israel occupied the West Bank and Gaza in a defensive, just war and therefore legally. One imaginative theory suggested the duration of Israel’s occupation might render it illegal.[31] If that were so, then some of Israel’s adversaries might be held liable for refusing to negotiate for many years. The prosecution also introduced the International Court of Justice (ICJ) 2003 ruling on Israel’s security barrier.[32] This deeply flawed opinion, issued by a court that lacked jurisdiction to hear the case and a panel that included judges from two of Israel’s opponents (Jordan and Egypt) in that conflict, minimized both the defensive nature of, and the legal basis for, Israel’s occupation of these territories.

Israel’s legal stance on the occupation has historically been that the territories are not “occupied” since it did not take control from a sovereign power with a legal claim. It therefore maintained that the Fourth Geneva Convention did not apply, but that it would consider itself bound anyway by the Convention’s humanitarian provisions and by the customary law of belligerent occupation.[33] Israel appears to have retreated from these arguments in recent years, admitting that its presence in the territories is an “occupation”[34]—though doing so long after it had withdrawn from most Palestinian cities under the Oslo Accords.[35] In any case, Israel’s stance is irrelevant to the original question. The occupation, for better or worse, is legal. Not guilty.

Charge 7: Israel failed to fulfill its duties as an occupying power

The prosecution acknowledged that the Palestinian standard of living in the territories, as measured by a variety of indicators, had improved substantially during the first twenty years of occupation, though still lagging behind Israeli standards.[36] Israel also granted Palestinians the right to petition the HCJ directly, a unique step for an occupying power.[37] The prosecution argued, however, that Israel had introduced laws and regulations that resulted in the integration of the Palestinian economy on terms favorable to Israel.[38] Tax revenues collected from Palestinians were not spent on insurance for Palestinian workers, nor invested in infrastructure (e.g. new hospitals) that would benefit Palestinians in the territories.[39] This, it charged, was dereliction of duty. Furthermore, citing Article 43 of the Hague Regulations of 1907, the prosecution argued that changes to existing law in occupied territories could only be justified by the need to promote order and civil life,[40] and that Israel had fallen short of this standard.

If Israel had been required to create a self-sufficient and politically autonomous Palestinian polity, then it failed in its duty. If, however, Israel was merely required to improve Palestinian welfare, then it met its duty, over and above the international standard. One may fault Israeli policy on political and moral grounds, but not legal ones. Israel is not guilty, again.

Charge 8: Israel’s settlement policy is illegal

Some international legal authorities consider Israel’s settlements in the territories illegal. In the ICJ case, even the dissenting American judge agreed that settlements violated Article 49(6) of the Fourth Geneva Convention, which provides that an “Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.”[41]

Eyal Benvenisti noted Israel’s defense that settlement is voluntary and does not displace Arab inhabitants.[42] It is also different in scale and purpose from the mass deportations undertaken by aggressor nations in the Second World War, which were the specific acts the drafters of 49(6) intended to prevent. Israel has also argued some settlements were built for legitimate security reasons, and that the 1949 armistice line was never an international boundary.

The prosecution conceded that Israel’s strict reading of 49(6) may have been correct. In addition, it is clear that the ICJ not only exceeded its mandate in ruling on the settlements, but also based its findings on UN General Assembly (GA) resolutions, which are not binding law. Ruth Wedgwood pointed out that the ICJ failed to consider Israeli arguments on these issues, and suggested it should have left the questions of borders and settlements to future diplomacy.[43]

The legal basis for Israeli settlement is questionable, especially given its scale.[44] The Israeli government knew of the legal and political dangers of settlement and has often abdicated its responsibility to enforce its own laws against settlers. Nevertheless, it cannot be said that the settlements are illegal per se. They exploit a lacuna in international law. Certain settlements may be illegal under both Israeli and international law, and their removal might be an urgent priority, but the existence of settlements itself is not necessarily illegal. Israel is, again, not guilty.

Charge 9: Israel failed to recognize the Palestinian right to resist by force

The majority of the participants agreed, by a vote of 11-4, that a Palestinian guerilla fighter not wearing a uniform had a right to kill a uniformed Israeli soldier in occupied territory. There is, in fact, no such “right.” There are, however, ample legal provisions for an occupying power to take measures necessary to ensure the security of its soldiers. Arguments for a “right” of Palestinian guerillas to kill Israeli soldiers therefore invite Israel to take preventative measures against Palestinian civilians, such as checkpoints, curfews, and searches. Furthermore, a guerilla fighter wearing civilian clothes forfeits the status of non-combatant. It is true that Article 44(3) of Protocol I to the Fourth Geneva Convention allows guerilla fighters to disguise themselves as long as they carry their arms openly. However, Israel has not ratified this deeply flawed protocol, drafted during an era of Cold War proxy conflicts, and does not consider this provision binding.

The majority of the participants refused to decide whether armed Palestinian groups have a right to kill Israeli civilians, inside or outside of the occupied territories. Yet the report of Amnesty International made clear: “The deliberate killing of Israeli civilians by Palestinian armed groups amounts to crimes against humanity.”[45] There is no Palestinian right to kill civilians under international law and therefore Israel cannot be found guilty of denying it.

Charge 10: Israel’s responses to Palestinian terrorism are illegal

We considered two types of response in particular: (a) military action targeted at members of Palestinian armed groups; (b) Israel’s security barrier (“wall”) along and beyond the 1949 armistice line. With regard to (a), Israel must obey international humanitarian law, which prevents the deliberate targeting of civilians. The laws of war also prevent Israel from attacking military targets if such attacks are expected to cause a disproportionate number of civilian casualties. Though Israel has not ratified Protocol I, the HCJ has recognized Article 51 of the treaty as customary international law and has held that Israeli forces must not cause civilian damage that is “excessive in relation to the concrete and direct military advantage anticipated.”[46] Israel may have occasionally violated this proportionality standard, but has generally obeyed it.

With regard to (b), Israel’s security barrier—only a “wall” for a small part of its length—may be justified under Article 51 of the UN Charter, which recognizes member nations’ right of self-defense, and which the ICJ largely ignored. Israel cannot build a barrier anywhere it wants; the HCJ has balanced national security interests against the costs to Palestinians living along the barrier’s path, and has sometimes ordered it to be moved.[47] In principle, however, it is legal and has been extremely effective in preventing civilian deaths. Israel is not guilty on both (a) and (b).

Proposed remedies: a “binational” state and the “right of return”

One of the remedies suggested by the prosecution was the creation of a “binational” state. The classic model of the binational state was presented by a minority of left-wing Jews prior to 1948 and involved recognition of two national communities, equal power-sharing arrangements, and Jewish immigration to the point of parity. That model failed to win any public support among Palestinian Arabs. The version of “binationalism” presented by Lama Abu-Odeh’s model was in fact a one-state solution that meets maximalist Palestinian demands.[48] In any case, neither a binational state nor a unitary state would be viable. Multi-ethnic states have a sad history in the Middle East. Even in Europe, docile Belgium may be unraveling. Sharing Jerusalem, as some proposed, may be possible; dissolving Israel into Palestine is not. The two-state solution is not ideal, and faces many challenges, but it remains the most popular and least costly remedy.

We were then presented with the “right of return” as a fait accompli. Yet UNGA Resolution 194 does not provide an explicit right of return and was opposed by the Arab states.[49] Few Palestinian refugees want to live in Israel, in any case, suggesting room for compromise.[50] We considered various proposals, from repossession to symbolic recognition to compensation, with Palestinian claims offset against the claims of Jewish refugees from Arab countries. The difficulty of determining the value of lost assets was immediately apparent. Overall, it is likely that the best solution would be negotiated between the two sides, not determined by judicial fiat.

Conclusion

If the true intent of this course had been fully to consider “legal issues” in the Israeli-Palestinian conflict, it failed. A more appropriate title would have been “The Case Against Israel.” The participants were presented with bogus historical accounts and radical legal theories and encouraged to find ways to justify Palestinian violence and respond to Israeli arguments. Yet this case may be decided in favor of the accused even on the basis of the evidence presented, such as it was. None of the eleven charges against Israel was proven beyond a reasonable doubt; few of the remedies sought would provide a just, peaceful or stable outcome. The only appropriate decision would be to dismiss the accusations and to order both sides to reach a compromise. Not everything Israel does is right, moral or politically wise. Some of its actions deserve harsh criticism. Yet on these “legal issues,” it has been acquitted many times over.

[1] Ilan Pappé, The Ethnic Cleansing of Palestine 40 (2006).

[2] Id.

[3] Benny Morris, The Birth of the Palestinian Refugee Problem Revisited 65 (2d ed. 2004) (“two buses were attacked and seven Jewish passengers shot dead”; Morris noted, at 139 n. 1, that there is some dispute as to whether the Arab motive was robbery or retaliation for earlier attacks by Jewish paramilitaries, in turn responding to British raids. In any case, Pappe ignored the Jewish deaths. The pages in Morris referred to fall outside the assigned reading.)

[4] Id. at 164.

[5] Benny Morris, Righteous Victims: A History of the Zionist-Arab Conflict 88-160 (2d ed. 2001).

[6] Alan Dershowitz, The Case For Israel 80 (2003).

[7] Nur Masalha, The Politics of Denial: Israel and the Palestinian Refugee Problem 54 (2003).

[8] David Kretzmer, The Legal Status of the Arabs in Israel 2-4 (1990).

[9] Id. at 38. (This page and the one above were also outside the reading but from the same text.)

[10] See Ka’adan v. Israel Land Administration, HCJ 6698/95 (2000).

[11] What about land? Does Israel discriminate against Arabs owning land?, Palestine Facts, http://palestinefacts.org/pf_1991to_now_israel_land.php.

[12] Joseph Singer, Re-Reading Property, 25 New Eng. L. Rev. 711, 718-22 (1992); Joseph Singer, Well Settled?: The Increasing Weight of History in American Indian Land Claims, 28 Ga. L. Rev. 481, 528-32 (1994); Guadalupe Luna, Chicana/Chicano Land Tenure in the Agrarian Domain: On the Edge of a “Naked Knife”, 4 Mich. J. Race & Law 39, 39-50, 133-37 (1998)

[13] Hannah Arendt, The Jewish Writings 434-35 (2007).

[14] Dershowitz, supra note 6, at 23.

[15] Sandy Kedar, On the Legal Geography of Ethnocratic Settler States: Notes toward a Research Agenda, 5 Current Legal Issues 401 (2003)

[16] A racist Jewish state, Ha’aretz, Jul. 10, 2007, available at http://www.haaretz.com/hasen/spages/884358.html.

[17] Ireland Const. pmbl.

[18] e.g. Arab Republic of Egypt, Syrian Arab Republic.

[19] Palestine Draft Const. art. II (2003).

[20] Hassan Jabareen, The Future of Arab Citizenship in Israel: Jewish-Zionist Time in a Place with No Palestinian Memory, in Challenging Ethnic Citizenship (D. Levy & Y. Weiss, eds., 2002)

[21] Ruth Gavison, The Jewish State: A Justification, in New Essays on Zionism 10 (David Hazony et al. eds., 2006).

[22] Id. at 25. The current Israeli government is attempting to revise the law in any case.

[23] See Dershowitz, supra note 6, 156-57; see also Bennett Zimmerman et al., Voodoo Demographics, Azure, Summer 2006, No. 25, available at http://www.azure.org.il/magazine/magazine.asp?id=308.

[24] Id. at 23.

[25] Alan Dowty, Is Israel Democratic? Substance and Semantics in the “Ethnic Democracy” Debate, 4 Israel Studies No. 2, 1, 10 (1999).

[26] U.N. Committee on the Elimination of Racial Discrimination, Thirteenth Periodic reports of States parties due in 2004 Addendum ISRAEL, U.N. Doc. CERD/C/471/Add.2 (Sep. 1, 2005).

[27] Eyal Benvenisti and Dahlia Shaham, Facially Neutral Discrimination and the Israeli Supreme Court, 36 N.Y.U. J. Int'l L. & Pol. 677 (2004).

[28] Yishai Blank, Brown in Jerusalem: A Comparative Look On Race and Ethnicity In Public Schools, 38 Urb. Law 367 (2006).

[29] Claris Harbon, “Affirmative Squatting in Israel: Mizrachi Women Correct Past Injustices, Berlin Law and Society Association Conference 12 (2007).

[30] Meyrav Wurmser, Post-Zionism and the Sephardi Question, Middle East Quarterly, Spring 2005.

[31] Orna Ben-Naftali et al, Illegal Occupation: Framing the Occupied Palestinian Territory, 23 Berkeley J. Int'l L. 551, 554-55 (2005).

[32] Legal Consequences cf the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004 I.C.J. 136 (Jul. 9).

[33] David Yahav et al., Israel, the “Intifada, and the Rule of Law 15-25 (1993).

[34] Kelly Wallace, Sharon: ‘Occupation’ Terrible for Israel, Palestinians, CNN, May 27, 2003, http://www.cnn.com/2003/WORLD/meast/05/26/mideast/ (statement to Likud Party on May 23).

[35] Declaration of Principles on Interim Self-Government, Isr.-PLO, Sep. 13, 1993.

[36] Meron Benvenisti et al., The West Bank Handbook: A Political Lexicon (1986).

[37] Lisa Hajjar, Courting Conflict: The Israeli Military Court System in the West Bank and Gaza 5 (2005).

[38] Eyal Benvenisti, The International Law of Occupation 123-29, 141-44 (1993).

[39] Meron Benvenisti, supra note 36, 179.

[40] Eyal Benvenisti, supra note 38, 7.

[41] Quoted in Construction of a Wall (Decl. Buergenthal).

[42] Eyal Benvenisti, supra note 38, 140-41.

[43] Ruth Wedgwood, The ICJ Advisory Opinion on the Israeli Security Fence and the Limits of Self-Defense, 99 Am. J. Intl. L. 52 (2005).

[44] David Kretzmer, The Occupation of Justice 77 (2002).

[45] Amnesty International, Without Distinction: Attacks on Civilians by Palestinian Armed Groups, Jul. 11, 2002, available at http://www.amnesty.org/en/report/info/MDE02/003/2002.

[46] Public Committee Against Torture in Israel v. Government of Israel, HCJ 769/02 (2006) at 1.

[47] See Beit Sourik Village Council v. Government of Israel, HCJ 2056/04 (2004); see also Yassin v. Governmet of Israel HCJ 8414/05 (2007) (the Bil’in case).

[48] Lama Abu-Odeh, The Case For Binationalism, Boston Rev., Dec. 2001/Jan. 2002, available at http://bostonreview.net/BR26.6/abu-odeh.html

[49] Dore Gold, Tower of Babble 55 (2005).

[50] Khalil Shikaki, The Right of Return, Wall St. J., Jul. 30, 2003, available at http://www.arts.mcgill.ca/MEPP/prrn/PAPERS/shikaki.htm.