Court allows lawless occupation due to “special circumstances”

In Israel, exceptions to the law justify the occupation, and protective measures do not protect those to whom the measures are applied. The state of exception is slowly but surely crossing the green line.

By Noam Wiener

Twice in the last few days, “special circumstances” have made news in Israel.

First, Prime Minister Benjamin Netanyahu suggested setting aside regular criminal procedure and trying settlers who are suspected of terrorizing the Palestinian population in special courts. Second, the Israeli Supreme Court used the special nature of the Israeli occupation as a justification in its decision on quarrying rights in the West Bank, departing from the well-established law of occupation on exploitation of natural resources.

The Supreme Court’s decision dealt with quarrying permits given to Israeli corporations who quarry materials in the West Bank to be sold in Israel, effectively legitimizing that these companies take precious resources from the occupied territory, for their own gain, into Israel.

As a child growing up near Tel Aviv, the only significance of the word “special” to me  was additional whipped cream and a cherry on top of my soft-serve ice-cream at the Montana ice cream parlor. As I grew up, however, and studied law, the words special, extraordinary, and exceptional started taking on a different meaning. No longer denoting the cherry on top, special conditions and extraordinary circumstances beget a much more sinister meaning when applied to the politics of the law.

Whenever I hear judges or law enforcement bureaucrats (police officers, prosecutors, members of the General Security Services, etc.) talk about special circumstances, the hairs on the back of my neck stand, because I know they are about to circumvent the law. And almost without fail, when a law enforcement official is about to circumvent the law, that circumvention enables greater repression rather than greater freedom. As some philosophers have noted (some in awe, others with harsh criticism), creating an exception to the rule is the ultimate power of the sovereign state.

In a state governed by the rule of law, the law is supposed to bind everybody in all situations, citizen and government alike. Limitations on sovereign power and authority are supposed to be, in a law-governed state, set in stone (literally – the Ten Commandments were the original rule of law for the Jewish people). These limitations restrict the ability of the state and its actors to violate individual liberties, and they determine the boundaries of freedoms vis-à-vis the individuals amongst themselves. Consequently, when a sovereign deviates from these boundaries, it deviates from the rule of law. Often “special circumstances” are used to permit sovereigns to declare that the rules no longer apply, and to decide that freedoms may be circumscribed.

The history of “special circumstances” is long and storied. The notorious “Star Chamber” of medieval and renaissance England was allowed to circumvent due process in “special” cases. Japanese Americans were put in internment camps during the Second World War due to the necessities of the “critical hour”. Using the power of the state, freed prisoners were placed in “schutzhaft” in Germany in the 1930s and 40s. Almost sixty years later, in the United States, the administration felt that the extraordinary conditions of the “war on terror” justifies extraordinary renditions and special military tribunals were constituted to try terror suspects circumventing due legal process.

Netanyahu’s proclamation about trying settlers outside the regular system and the Israeli Supreme Court decision about Palestinian quarries are therefore not new phenomena in human history. The attempt to justify the abuse of power because special considerations arise is just another sign of our decline into lawlessness in Israel.

The West Bank has always been on the margins  of the rule of law, a sort of nether region where the powers of the army and the police vis-à-vis Palestinians and Israelis alike is not entirely clear. Like all other ills related to abuses of power, the lawlessness of the West Bank is not containable, and the language of special and extraordinary circumstances is seeping into the “clean” language of the Supreme Court, and is turned against the settlers themselves.

Last week, when Netanyahu decided that settlers suspected of terrorism will be tried by military tribunals, he attempted to give up on regular legal procedures and rules of evidence and circumvent the legal process to achieve easy results. I have no sympathy for terrorists of any religion or race. But if we claim moral superiority over terrorists, that claim should be that for law abiding people, the ends do not justify the means. In criminal law, that statement translates into due process of law and observance of the rules of evidence. This means that there should be no circumvention of the right to be represented, no rounding corners with regard to torture, and no ability to accept evidence that would be thrown out in a regularly constituted court of law. Subjecting the settlers to extraordinary tribunals, thereby circumventing the rule of law, is absolutely the wrong way to go about solving the problems in the West Bank. It is wrong when applied to Palestinians, and just as wrong when applied to Israelis.

Regarding the Supreme Court opinion about the West Bank quarries, at the core of the petition is the basic principle of occupation. In this principle, an occupation is a sort of a trust, a situation in which the occupying country holds on to the occupied territory for the benefit of its inhabitants until the inter-state conflict that created the occupation is resolved.

But in its opinion, the Court states that due to the long and special nature of the Israeli occupation, the principle that occupation is a trusteeship can be set aside. With a swift stroke, the Israeli Supreme Court began unraveling the yarn it has spun for the past forty five years according to which there is rule of law in the West Bank. From now on, the rule of law can be set aside because of the special nature of the occupation. I noted above how exceptions to the rule of law are a raw manifestation of sovereign power – but the Supreme Court’s ruling did not just apply that power of exception, it defined it. In other words, the Supreme Court determined that a state of exception, in which special powers can be used and the normal rule of law no longer applies, perpetually exists in the West Bank due to the special nature of the occupation. The Supreme Court effectively determined that this state of exception is boundless and all-encompassing in regards to the occupied territories.

In the world of law and politics, “specials” do not connote shopping discounts, “extraordinary” does not connote outstanding, and protective measures do not really protect those to whom the measures are applied. The state of exception is slowly but surely crossing the green line. Israelis who thought they had no reason to be concerned about what was happening “over there”, are starting to find out that they have good reason to be worried.

Noam Wiener is an Israeli doctoral candidate at the University of Michigan Law School. His research focuses on international criminal law.