The Human Rights Watch site informs that the basic principles of international humanitarian law underlying military occupation are long established. They are based primarily on the 1907 Hague Convention (IV) Respecting the Laws and Customs of War on Land, the Fourth Geneva Convention of 1949 Relative to the Protection of Civilian Persons in Time of War, the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, and customary international humanitarian law.
Under international humanitarian law, once an occupying power has assumes authority over a territory, it is obliged to restore and maintain, as far as possible, public order and safety. Under the Fourth Geneva Convention, the occupying power must also respect the fundamental human rights of the territory’s inhabitants, including refugees and other non-citizens.
Four basic principles of international law underlie an occupation:
- The occupying power does not, through occupation, gain sovereignty over the occupied territory.
- Occupation is considered a transitory phase in which the rights of the population must be respected by the occupying power until formal authority is restored.
- When exercising authority, the occupying power must take into account the interests of the inhabitants as well as military necessity.
- The occupying power must not use its authority to exploit the population or local resources for the benefit of its own population and territory.
Israel, in its occupation of the Palestinian territories after the 1967 war, has never complied with international law concerning its military occupation of Palestine. To the contrary, since 1967, Israel has succeeded in controlling 40% of West Bank land, while building over 150 settlements whose population presently ranges from small villages to cities of over 30,000 residents. These settlements are connected to Israel by a network of Israeli only roads and highways. The settlements have well-developed commerce, industries and agricultural businesses in the territories. Water aquifers in the West Bank including the Jordan River basin are under the control of IDF forces and the water utilized by settler communities causing scarcity in local Palestinian communities. In formal government law and regulation including military communications, as well as newspaper articles, the term, West Bank, is seldom heard: Judea and Sumaria are the regions in question. In Israeli school books, the green armistice line is obliterated and the West Bank shown as part of a Greater Israel, after the dreams of the hard line Zionists, the right wing keepers of Israel’s purported religious and historical rights to all of the land.
It has been quite evident that the purpose of the military occupation is to protect Israel’s colonization of the West Bank in order to complete the Greater Israel dream. To do so, however, it has had to perpetrate one of modern history’s greatest injustices: the total obliteration of the human and civil rights of the Palestinian people.
Israeli politicians often claim that Israel is the only true democracy in the Middle East. If so, what has given it the “legal” basis to essentially continue its displacement of local Palestinian populations on lands considered to be occupied by a military force.
In a word: the Israeli Supreme Court.
Louis Frankethaler who lives in Jerusalem where he works for the Public Committee Against Torture in Israel, wrote in The Electronic Intifada, February 21, 2007, about how Israel’s High Court reinforces the occupation.
Journalist Gideon Levy wrote in the Israeli daily Haaretz: “From now on, the [Israeli] Supreme Court will act without Aharon Barak (who recently retired). It will, however, presumably continue to act within his legacy, which has authorized nearly all injustices in the territories. Barak, meanwhile, will continue to be depicted in Israel and the world as a pursuer of justice.”
The Court should have declared the Occupation illegal. It could have used the clear and highly developed legal reasoning for which it is so well known in order to explain exactly how there is no fundamental difference between an ‘illegal’ outpost such as Kochav Ya’akov West and a ‘legal’ settlement such as Kochav Ya’akov or Ma’aleh Adumim (both of which are over the Green Line, on expropriated and occupied Palestinian land) and that the State has no right to confiscate land in order to build a wall that divides Palestinians and protects settlements that have no right to exist.
The Court might have easily relied on international humanitarian law (IHL) which forbids Israel from doing exactly what it is doing in the OPT. The Court left the assassinations policy in place, delivering a meticulously reasoned legal analysis while forgetting or ignoring the human and human rights dimensions of the issue.
Furthermore, the Court, in an important decision, by many accounts, ostensibly prohibited torture in Israel, yet it did not refer to the Israeli euphemism “moderate physical pressure” as torture — which it is. Rather than reconciling its decision with international law and absolutely outlawing torture and cruel and inhuman treatment it left the window open and actually paved the way for torture and cruel, inhuman and degrading treatment to continue to be used as a counter-terrorism/insurgency tool albeit, (and perhaps), to a lesser extent than in the past.
The annexation barrier continues to be built, walling Palestinians off from their kin while setting the boundaries for the Palestinian non-state and the expanded Israeli settler state. In fact, in one of the High Court’s most recent decisions on the wall, it too opened with a similar narrative of Israel fighting terror and the need for security. The wall is being constructed, in Barak’s words, “against this background.” Although in this decision (Mara’abe v. Prime Minister of Israel, H.C.J. 7957/04) the Court ordered the State to readjust the route of the barrier, the Court “endorsed the policy of construction of the wall …” In essence, the ‘progressive’ nature (in the Israeli context) of the High Court of Justice is consigned to irrelevance by its inability or unwillingness to come out against the Occupation and the Court simply acts to regulate the Occupation.
According to Frankethaler, the Court has consistently acted as an agent of the state rather than a fully unbiased arbiter of the law. The purpose of his article, however, is not to discuss “the seemingly unending catalog of human rights abuses associated with the Occupation, but rather the fact that these abuses are integral components of the primary human rights abuse, the state violence that is the Occupation.”
Frankethaler’s article is too long to quote in its entirety, but it is highly recommended for an appreciation of how the occupation is viewed within Israel, legally, and as a human rights issue.
Some of the themes he discusses include:
The occupation in itself is a human rights issue.
The Occupation has simultaneously plagued Israel for forty years and imprisoned the Palestinians as a stateless people with virtually no access to rights protection except for the grossly inadequate appeals to the Israeli legal system…
The Occupation and its deleterious effects continue both inside and outside of the Green Line. Israel forbids Palestinian citizens of the state from marrying Palestinians from the OPT. Migrant workers are still treated as virtual slaves while the State pursues children of migrant workers, who know nothing of their “homelands,” targeting them for deportation.
Gideon Levy’s running chronicle of Israel’s cruelty to the Palestinians — killing, destruction of families and homes, humiliation and expropriation of their humanity — in the name of the Occupation.” (Gideon Levy’s articles in Haaretz, the only Israeli newspaper of worth, are highly recommended for anyone interested in understanding the occupation.)
Israel pursues its Occupation enterprise to the point of what seems to be no return. Palestinians have been so dehumanized that they fit Hannah Arendt’s definition of those who “have been driven outside the pale of the law” and who, even while enjoying ‘human rights,’ have been so cut off from political community that they have, at various times, been denied even the right to an identity.
The Palestinian is subject to the will of the Israeli Occupation. He or she has no voice and no substantial political status.
Palestinians are subject to a separate system of justice, namely “military justice” in which their rights to due process, fair trials and pain free interrogations are severely hampered.
Israelis (especially Israeli settlers in the Occupied Territory), on the other hand, are governed by Israeli justice and all too often find that they enjoy virtual immunity from prosecution when they commit crimes — even violent crimes — against Palestinians and when they continue to engage in the structural violence of settlement expansion and construction, which are patently illegal acts.
For Palestinians the principle of equal protection of the law does not to apply to them.
The Israeli High Court of Justice oversaw and continues to oversee developments lending the Occupation its judicial imprimatur. Thus Palestinians remain essentially faceless persons, divested of civil and human rights with no real avenue for redress.
In closing, Frankethaler makes clear that the Israeli High Court is an extension of a colonial pathology that has inflicted Israeli society, which is reflected in the workings of its highest tribunal. He makes this clear in his closing:
….(one cannot) lay the entire blame for this travesty at the feet of Israel’s High Court of Justice. The policy of Occupation is a comprehensive one to which Israel’s citizens have tacitly if not overtly acquiesced over the course of four decades. The extent to which complicity attaches is a complex one yet it is clear that the Occupation constructs a situation in which, at least indirectly, Israeli society bears as much responsibility as Israel’s political, military and judicial authorities. Denial and myopia are Israeli pathologies.
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