A half century of occupa.., p.4
A Half Century of Occupation, page 4
Furthermore, as much as Article 49 might be a reaction to Second World War practices, it lays down a general principle: it prohibits the expansion of a state’s sovereign territory through the settlement of its population in the territory of another state with the intention of annexing it. Article 49 puts an end to settler colonialism. Many countries were formed by colonization, and in this respect Israel is not different from Australia, Argentina, the United States, or South Africa (more on this topic in the second essay). What makes Israel unique is that it is a belated, nineteenth-century settler colony and even more that it carries on the colonization by which it was formed into the late twentieth and early twenty-first centuries. The continuation of the practice of colonization is the main, though not the single, reason that makes the clash between Israelis and Palestinians the world’s most intransigent conflict.
Unlike the government, the Israeli judicial system recognizes the state’s obligations under IHL. However, the Israeli legislative and executive branches at different times accept, reject, or simply ignore the applicability of IHL. Shortly after the 1967 War, the HCJ decided that it would review petitions from the OPT, and over the years it has come to adjudicate these petitions on the basis of Israeli administrative law, the British Defense Emergency Regulations of 1945, and IHL. The HCJ accepts the applicability of the Hague Regulation as international customary law, a standing it denies to the Fourth Geneva Convention. And while rejecting the Geneva Convention as a whole, the HCJ applies the Convention selectively. Significantly, the HCJ views the Palestinian residents of the OPT as “protected persons,” as is required by both the Hague and Geneva laws.
Where citizenship is absent and human rights are few, humanitarianism will matter, but how much? Conversely, what happens when most humanitarian protections are lost as well? I suggest that two tests provide some support for the conclusion that humanitarian protections in the OPT remain the strongest strand of legal protection and may make a difference (mostly in extremis). The first is the “expulsion test,” and the second the “shadow of the court” test.
One widely shared opinion voiced, among others, by Saree Makdisi in his Palestine Inside Out is that the ultimate goal of the Israeli occupation is to precipitate major demographic shifts, possibly culminating in the expulsion of occupied Palestinians to give Israel undisputed control of the territory it wishes to acquire.27 In contrast, scholars who approach the occupation from a legal perspective make the difficult but necessary distinction between the harshness of military occupation, which, though affording no input from the occupied population into its institutions and practices, enjoys a legal basis for its rule, and the even harsher reality of domination by brute force alone. As Hajjar reasons, “Because the Israeli state has committed itself to legality . . ., it has opened itself to being judged and criticized by standards of law.”28
Recycling evocative terms used in very different contexts, the scholar of international relations Jim Ron holds that as long as Palestinians live under Israeli occupation in what he calls a “ghetto,” they are protected under Israel’s generalized human rights and other international commitments. Following his argument, Palestinians and Arabs of bordering enemy states who live on the margins or outside Israeli occupation, on the “frontier”—for example, in southern Lebanon—lose most of their humanitarian protections and become potential subjects of massive destruction, displacement, and expulsion.29 Israel’s “disengagement” from Gaza in 2005—the withdrawal of the Israeli army and the dismantlement of all Israeli settlements there—is a case in point. The withdrawal transformed Gaza from a ghetto into a “frontier,” and the three destructive wars between Israel and Hamas (in 2008–9, 2102, and 2014) hit Gaza particularly hard, leaving in their wake highly disproportionate casualty ratios between the two sides and a particularly high percentage of Palestinian civilian casualties. The distinction between frontier and ghetto might provide limited comfort for those living under occupation, but Hajjar and Ron remind us that even when the rule of law is deficient we should not ignore altogether the role of the law as a shield.
In addition, what Kretzmer called “settlements in the Court’s shadow,”30 namely out-of-court settlements of disputes on Palestinian rights, show higher success of Palestinian petitioners than actual decisions do and thus suggest that the court’s restraining influence can be greater than we could glean from its rulings. The former prime minister and minister of defense Yitzhak Rabin famously justified the signing of the Oslo DOP by arguing that the protocol’s transfer of powers to Arafat meant he now had a partner who would “deal with Gaza without the problems of the High Court of Justice, without the problems of B’Tselem [the Israeli Information Center for Human Rights in the Occupied Territories], and without the problems of all kinds of sensitive souls.”31 It is not particularly difficult to find examples of the court’s restraining influence both in its rulings and in their anticipation. The Israeli decision to legalize “moderate physical pressure” (or “torture lite”; for a detailed discussion see Section V) and the subsequent HCJ ruling to abolish it took place, by happenstance, on the eves of the First and Second Intifadas, respectively. During the First Intifada, though resistance was only non- or semiviolent, sixteen Palestinians were reported to have died from punitive beatings at the time of or shortly after arrest by Israeli forces; at least eight others died in detention centers. During the Second Intifada, in spite of its abundant violence, no Palestinian detainees died. Shortly after the court’s reversal of the policy of “torture lite,” forty-three legislators proposed a law permitting the use of “physical pressure” against terror suspects, but it never passed the Knesset. Even against the backdrop of the waves of suicide bombings against Israeli civilians, the HCJ’s recent decision and the attorney general’s legal opinion for its implementation had a restraining impact.32
Rulings of the HCJ that limit the powers of the military and government invariably lead to calls by members of Prime Minister Netanyahu’s Likud Party and the religious Zionist Jewish Home Party to constrain the HCJ’s authority, as well as to institutional reforms that would allow the politicization of the choice of its new members. The attempts to cut back on the court’s authority demonstrate that the shadow of the court is real, the only remaining legacy of the so-called “enlightened occupation” period (see Section IV of this essay). At the same time, attempts to curtail the court’s authority confirm that legal autonomy is becoming endangered the longer the occupation continues, and we cannot rule out the possibility of the collapse of judicial review even if the appearance of legalism is unlikely to disappear. Two chief justices, Dorit Beinish in 2011 and Miriam Naor in 2015, have expressed apprehensions about the repeated efforts of Likud and Jewish Home Party leaders to reduce the authority of Israel’s legal system over an ever-growing range of issues.33 A hobbled court will be even less willing to apply the protections of IHL to the occupied Palestinian population. We need to keep reexamining whether the court’s shadow survives.
The occupation from the legal perspective, then, is created by twisting together different strands of legal rights and protections: (1) citizenship manqué for Palestinians of East Jerusalem and the Druze of the Golan Heights, (2) human rights that are available (in a limited edition) to all Palestinians in procedural and concrete matters but are never codified as principle, and, the rest of the time, (3) humanitarian protections and the vestiges of humanitarianism. This legal ambiguity is not only an essential aspect of Israel’s continued occupation but a necessary precondition for the occupation. Indeed, Israel must allow for the applicability of the Hague Regulation and the Fourth Geneva Convention in practice because IHL provides the only available international legitimacy to continued Israeli military presence across the Green Line. As much as Israeli governments champion occupation denialism, they remain dependent on the continued legal definition of the West Bank as occupied territory.
IV
Occupation is an international legal concept and is commonly treated as such. It is also an everyday Palestinian experience. I now turn from the legal perspective to an examination of how the occupier’s obligation to protect the occupied population has been put into effect, as well as used to benefit the occupiers, and how it is experienced from the perspective of those who are occupied.
A half-century-long occupation has its own history, including reorganizations adopted in response to Palestinian resistance, and its practices and institutions add up to a distinct form of government and domination. The occupation regime has two distinct phases, divided in roughly equal halves by the Oslo DOP. The first phase lasted from June 1967 to September 1993, and the second from 1993 onward. Sections IV and V will examine the early period, and Section VI will take us to the second phase, the post-Oslo years.
The first stage of occupation policy was personally designed by Defense Minister Moshe Dayan and, though its practices were tightened repeatedly, remained in effect until the outbreak of the First Intifada in December 1987. Dayan’s goal was to create a so-called temporary, moral, and nonexistent occupation,34 though I would qualify this description by suggesting that it was made to appear normal for Palestinians while remaining invisible to Jews and the rest of the world. To this date, Israeli and foreign scholars regularly edit and publish volumes on contemporary Israel that avoid any mention of the occupation of noncitizen Palestinians who live under Israeli rule.
This “illusory” occupation regime was half-seriously, half-jestingly labeled by Israelis an enlightened occupation. Although Israel, as the occupying power, is required under IHL to assume the obligation of protecting Palestinians, it has attempted instead to make the occupation benefit Israelis. Before the First Intifada, the Israeli regime also strove to keep the costs of occupation down so as to have a cheap occupation and not impose the burden on Israeli taxpayers.
The three main elements of the illusory “enlightened occupation” were (1) an “indirect method of rule” that kept in place Palestinian local administrators under the military government, though the military government had the actual responsibility over the lives of occupied Palestinians; (2) the integration of the OPT’s economy with the Israeli economy; and (3) the formal subjugation of the military government of the OPT to the jurisdiction of the HCJ. Of these three elements, only the third survives in its original form today; the other two have been revised, retooled, and in some cases abandoned.
After rapidly ruling out plans to reach a political agreement with the Palestinian urban elite of the West Bank and, consequently, rejecting some of the classic colonial forms of ruling over satellite states or protectorates, Israel settled on a combination of what is best termed indirect rule and military rule.35 Its purpose was to shield the military administration, the General Security Services (GSS, the Shabak or the Shin Bet), and the Israeli police from the gaze of its subjects, as well as to reduce friction between the new rulers and their subjects. To allow the local population to conduct its life with minimum interference or involvement, Jordanian institutions and the vast majority of their incumbents (mayors, qadis, civil servants, and teachers) were left in their old posts. These people also continued drawing salaries from Jordan, which enabled Jordan to maintain a measure of local influence in anticipation and hope of a time when it would be able to recover control over the territories lost to Israel in 1967. Atop the local authorities, the now sovereign authority was vested in the military, which ruled through a hierarchy of military governors. To carry out its obligations toward the civilian population, a committee of the directors-general of the main ministries was assembled and placed under the coordinator of Israeli government operations in the OPT, himself an officer subordinate to the minister of defense. As long as the military administration was able to operate through the Palestinian functionaries, it propagated the illusion that the military occupiers remained “invisible.”
By foregrounding the economic sphere, Israel sought to normalize the relationship of occupier and occupied. This approach was a direct continuation of the expectation formed during the Yishuv that the economic benefits of the modern Jewish economy would also benefit the land’s native Arabs and diminish their aspiration for political independence. Israel adopted an “open bridges” policy to allow a continuation of the economic ties between the two banks of the Jordan River. Just one year into the occupation, the Israeli Ministry of Defense already published its first English-language report on its administration, subtitled A Record of Progress, and thereafter published annual reports piling on the positive numbers that resulted from modernizing the Palestinian economy. The years 1967–73 indeed witnessed a rapid rise in the Palestinian standard of living, due in equal part to the higher wages paid within the Green Line and remittances from the Gulf States. However, the Israeli economy’s lost decade after the 1973 War and the collapse of the oil-driven boom in the Gulf in the 1980s reversed that rise.36
The attachment of the Palestinians to the Israeli economy benefited individual Palestinians but did little to modernize the Palestinian economy, since Israel not only failed to encourage the development of Palestinian industry but refused licenses for the construction of locally owned factories whose wares would compete with Israeli manufactured goods. The OPT’s rate of growth, consequently, correlated closely not with the Israeli economy but with the regional rate and placed West Bank and Gaza’s GNP only marginally higher than the GNPs of comparably endowed Syria and Jordan two decades after the occupation. In Geoffrey Aronson’s summation, the “economic foundation for Palestinian participation in the status quo did not produce normalization.”37
The greatest impetus for the improvement of the Palestinian standard of living was the opening of the Israeli labor market, which led to the employment of as much as 39.2 percent of the Palestinian labor force within the Green Line by 1987. Palestinian employees are congregated in the low-paying agricultural and construction sectors. Though required to pay full social insurance taxes, they receive only a portion of the benefits accruing to their Israeli counterparts. A portion of their revenues finances the military government, making Palestinian laborers pay an occupation premium to the Israeli authorities. Recognizing the moderating influence of employment, Israel continues to issue work permits to Palestinian laborers to date, though the Israeli state adjusts their ebb and flow according to the level of Palestinian resistance over the years.
While the economic policy—even as it was beset by contradictions—held the promise of flexibility and prosperity, there was no such openness in either the educational or the political spheres. Until the First Intifada, according to Major General Shlomo Gazit, Israel’s coordinator of Israeli government operations in the territories, Palestinians in the OPT were under a total prohibition of political organization. Even the acts of displaying Palestinian flags and singing nationalist songs were strictly forbidden and severely punished.38 Military censorship of all reading material led to the banning of some 1,700 books, and its logic was so convoluted that even Shakespeare’s Merchant of Venice was forbidden in the OPT. Israel pursued a single-minded and heavy-handed policy to prevent any and all expression of Palestinian national identity or cultural heritage in the schools. Local newspapers were instructed by the military censor to replace the word Palestinian—one with potential political significance—with Arab, viewed as a more general cultural identity. It encouraged identification with extended family or religion—for example, through the licensing of mosque construction. To thwart secular nationalism, the military government encouraged what it expected to be an apolitical, quietist fundamentalism. For example, it allowed the Palestinian branch of the Muslim Brotherhood to take possession of religious endowments (waqf), leading to the flourishing of this traditional practice, which was already in decline in other parts of the Middle East. Finally, it allowed Hamas, which grew out of the local chapter of the Brotherhood, to expand its social services in Gaza.
The enlightened occupation, such as it was, at most postponed the day of reckoning and was unsustainable. Already from its beginning, behind its facade of normalcy lurked a repressive apparatus.
V
Though Israelis were happy to convince themselves that their tactic of controlling the OPT by pulling the strings from behind was effective, they also maintained a large measure of direct and frequently violent military control that was experienced by occupied Palestinians as part of their daily life. Avraham Shalom, a past head of Israel’s Shin Bet, and one of Adolf Eichmann’s captors, who was in office up to the outbreak of the First Intifada, summed up the everyday experience of occupied Palestinians with these words: “We’ve become cruel. To ourselves as well, but mainly to the occupied population.” The army, he added, had become “a brutal occupation force, similar to the Germans in World War II” in its treatment not of Jews but of the conquered peoples.39
Heeding Shalom’s observation, I will delve into the role played by violence in Israel’s tool kit of domination. State violence is as extreme as it is exceptional in the everyday experience of most people living in a rule-bound democracy. Thus, as Ariella Azoulay and Adi Ophir point out, violence by the Israeli state is commonly viewed and discussed merely as a military instrument used intermittently in response to upsurges of Palestinian hostility and as the expression of the security needs of an otherwise peaceful Israeli society—or at least one entitled to defend its armed forces and civilians.40 From this view, violence is confined to the following events: the two intifadas; General Sharon’s clearing operations in the Gaza refugee camps starting in December 1970; Operation Defensive Shield during the Second Intifada; the three military operations, indeed wars, between Israel and Gaza in the past decade; and the measures to suppress al-habbah al-sha’biyya knife attacks since October 2015. “Military violence is [thus] dissociated from the ongoing operation of the apparatus of domination”41—that is, from the military rule and government of the OPT.
