By Itamar Mann

The Israeli left responded with a mixture of laughter and rage to former Justice Edmond Levy’s report on the status of the West Bank and its claim that “there is no occupation.” One commentator particularly baffled was human rights lawyer Michael Sfard, who wrote that the “report was written in Wonderland, governed by the laws of absurdity.” Instead of the laws of absurdity, Sfard wants us to continue embracing the laws of war.

Such responses reflect confusion. Their underlying assumption is that claiming what is going on in the West Bank is not an occupation means morally accepting it. But even though the report fails to describe the domination of Palestinian life in the West Bank, that conclusion does not follow. Why, then, are so many of us, within Israel-Palestine and internationally, so attached to the occupation category?

One of the central arguments the report makes is that the West Bank is not occupied, because occupation is a temporary situation. Israeli control in the West Bank, on the other hand, has no end in sight. This argument sounds quite pernicious. It assumes that just because Israel took violent custody over this area, it gained rights to it. However, while it is true that 20th century international law has forbidden the acquisition of land by force, such movements from fact to norm are not unfamiliar to international lawyers.

A more constructive approach should embrace parts of the conclusions, instead of rejecting it wholesale. The strategic goal should be to point out what does follow logically from sovereignty over the West Bank. West Bank Palestinians must immediately be granted the right to citizenship and political participation. Not granting such rights would augment growing accusations of apartheid against Israel. Alongside possible investigations by the International Criminal Court, this would fuel the transnational movement for democracy in Israel-Palestine – which Israelis and Palestinians are of course part of.

The occupation paradigm has historically served Israeli governments to fend off criticism by pretending to negotiate, and this report sends a clear message to audiences abroad. The golden age of negotiation is long gone. Rather than waiting for a messianic conclusion to “peace talks,” pro-democracy citizens of the world must support likeminded Palestinians and Israelis right now.

Make no mistake – regardless of the conclusions, the legal reasoning in the report is flawed. Many arguments are omitted in what seems to be an intentional mischaracterization of the standard legal position on this issue. This sloppy work seriously reduces the credibility of the report. However, the report does laudably capture what has been happening on the ground for a long time now. It exposes how the settlements were a premeditated project fostered by Israeli governments, and that there was consequently never a serious intention to allow the Palestinians to exercise self-determination. The Israeli left has been making these claims for years. Why should we discard them when they come from a committee appointed by a far-right government?

As Noam Sheizaf pointed out, the argument that the West Bank is “not occupied” because the Jordanians never acquired legitimate authority there is not new. But Levy’s report does reflect a refreshing willingness for international legal creativity. It does not abandon the legal method all together, but unabashedly connects often-abstract legal doctrine with political power and political will. We must learn from that. It is imperative to develop new normative vocabularies instead of the familiar fetishism for the international law, as interpreted in Geneva. The latter may aim to protect humans from arbitrary state violence, but has nothing serious to say about freedom. Its underlying purpose is bodily integrity, not the liberation of the soul.

Abandoning the occupation paradigm will enable us to rethink self-determination for both groups much more ambitiously. It will encourage us – Israelis and Palestinians – to address real-life grievances on our own, not wait for some future remedy from the High Court of Justice, which in any case has failed.

One way to start would be to shift focus. The last bastion of human rights the report addresses – after it has done away with occupation – is the right to property under the Universal Declaration of Human Rights. An obvious different focus is the right to citizenship. Instead of focusing on buildings and land, a report premised on equal rights will focus on men, women, children, voting, discrimination, and access to public services, such as water.

Such reports may seem to already exist – ignored because weak human rights organizations rather than strong governments write them. That is partly true, but standard human rights reports are all written through the occupation prism. They are therefore limited in what they can wish for, and cannot offer changes to the structure of the regime.

Like Levy’s, such a report will depart from existing doctrine by redefining domestic institutions. Some may say it will describe a wonderland, as it will require cooperation between Israelis and Palestinians, which doubtless seems like a dream. But those who fight to preserve the occupation paradigm are the ones currently ignoring the reality.

The strongest argument for the occupation paradigm is that without it we have no law at all, which makes it ostensibly impossible to speak truth to power. But we should admit that, almost invariably, the only body that gains from this paradigm, which pretends that Palestinians and Israelis are divisible, is a government always seeking to divide us further.

Itamar Mann is a doctoral candidate at Yale Law School.

Read also:
Panel appointed by Netanyahu concludes: There is no occupation
‘Nonexistent occupation’ memes go viral in social media

Project photography: Oren Ziv / Activestills

Theoretically, Dharifa Sharreb should be pleased. When the fence was built in Jayous in 2003, Sharreb’s home was the only one on its western side, and it became completely isolated from the rest of the village. Soldiers would open the two gates in the two fences near the house three times a day, not always at the same hours, and each time for no more than two minutes. If you missed the opening, you’d have to wait for the next round. Sharreb’s children were always late for school, and every visit to the grocery – or even the hospital – cost Sharreb hours of waiting by the gate.

So one may well argue that the relocation of the fence in 2008 should have benefited  Sharreb. After a long struggle, which involved mass demonstrations and a High Court petition, the state agreed to move the fence westward, returning to the villagers hundreds of acres of land, as well as reuniting Sharreb with the village. The High Court approved the new route, which still kept many lands on the “Israeli” side, taking the state’s word that gates would allow farmers free access to their trees.

Outside the court, however, reality looks different. Sharreb’s family, for example, has now been cut off from its lands and is yet to obtain the permits required to cross the fence. Muhamad Abdel-Latif, a neighbor, says that five out of his eight acres of land are on the wrong side of the fence, that permits are hard to come by for his entire family, and that the soldiers never show up at the fixed hours. Sitting in front of Sharreb’s house, overlooking the scarred land on the right where the fence used to run, and the new frightening fence on the left, I ask whether the two have considered turning to human rights NGOs for legal advice. They both sigh, their expressions tell the tale of people weary from fighting.

“There used to be demonstrations here, and people would come to help us out, but that’s all over now – and even if people were to come, I don’t think it would do any good,” says Sharreb. “They say that one day Plato went to look for justice,” says Abdel-Latif. “He went to the king, and could not find it. He went to the judges and the rich men, and could not find it. Only when he visited the poorest and lowliest of men did he find justice. The same goes for us – we will never find justice with those in power”.

(Sharreb in a 2005 B’Tselem video)

The army agronomist will decide

As described in the first chapter of this series, the route of the wall has been redrawn time and time again, and currently leaves 8.5 percent of West Bank territory west of the barrier. Aside from certain Palestinian urban areas described in chapter two, most of the land is either taken by settlements or, for the most part, by Palestinian agricultural lands, farmed by villagers who live on the eastern side of the wall.

These wide stretches of land, dubbed “the seam zone”, are governed by a strict system of permits. As no other barrier stands between them and Israel’s proper borders, Palestinians are required to hold permits and go through security checks in order to enter them, while Israelis are totally free to move about. Naturally – these permits are not easy to gain. As with other sorts of permits, here too the Shin Bet uses people’s needs as leverage to recruit informants. In many villages people complain that only one family member received a permit, and that this is not enough to work the entire land. Villagers in Jayous joke about a family who got a single permit for a person long deceased, who is still registered in Israeli books as the owner of the family property.

Trees on sale near the wall in Qalandia (Oren Ziv / Activestills)

“This is life in the shadow of the wall, with a constant regression in permit standards,” says attorney Michael Sfard, co-author of “Khoma U’Mekhdal” – “The Wall of Folly”, who represented many villages in High Court petitions against the route running through their lands. “From very early on the army said that the wall is just there to filter those who have a legitimate interest in the seam zone from those who don’t. The promise was that life would go on just the same as it was for anyone who proves he has good reason to cross the wall.

“Now, with the fence already erected, the story no longer in headlines, the court is less interested and the farmers’ problems more minute – we suddenly hear a new discourse. Now the army says ‘what we meant is that people with an interest can pass when we say it’s relevant.’ This leads to cheapness in the permit system. Suddenly they tell you, based on an expert opinion by an army agronomist, just how many days you need to work your land. Say you have 0.25 acres of olives – you’ll get three days of plowing and ten for harvest each year. And that will be it.“

After the ‘Tsumud’

“A 10-year perspective reveals changes in the West Bank, which run deeper than the single farmer and his olive tree,” explains B’Tselem spokesperson Sarit Michaeli. “Over the course of time the removal of farmers from agricultural lands changes the pattern of land usage. For example this can take the shape of abandoning the growing of fruits and vegetables, which require much attention. Jayous and its surrounding area are important to Palestinian vegetable markets, and their absence exacts a heavy price on the economy. Even the very resilient olive trees give less fruit when left unattended for too long.

“There are also smaller cumulative effects, like the whole question of recreation, as a family picnic on the land is central to Palestinian country life, and of course the army doesn’t consider this a permit-worthy cause. And what about fires, and theft? The average Israeli doesn’t think of the farmers standing by the fence, seeing his lot burning, denied help by the Israeli fire brigade, and waiting for soldiers to open the gate for the Palestinian fire fighters.“

A tree in Bil’in burning after tear gas was fired in the area (Haggai Matar)

Stories of fire and theft are a recurrent theme in interviews with Palestinian farmers. Sometimes it is damage caused by settlers, or organized theft, while fires break out either for no apparent reason, or due to extensive use of tear gas and flares by the IDF while repressing demonstrations. I myself have see several demonstrations that stopped for the benefit of extinguishing burning trees, while soldiers kept on shooting at the villagers.

“Even if you’ve done everything right – got the permit, reached the gate at the right time – the soldier might still find a reason why not to let you through,” concludes Michaeli. “At the end of the day you’re holding a piece of paper, and he – a gun. The system is stronger. So people desert their lands, maybe transfer the rights to others who have permits – which is not as profitable, and find another way to support their families. Not everybody has the strength to fight for every acre with Tsumud” (the Palestinian term denoting persistence in holding onto the land – H.M).

“If you ask me where this is headed the answer is the old and horrible notion of ‘as much land as possible, as few Palestinians as possible,’” adds attorney Sfard. “The seam zone is the Israeli consensus’ expansion zone, planned for settlement by everybody from the Avoda (Labor) rightward. So they decide to keep the seam zone ‘sterile’, allowing the occasional harvest, but in the long run their plan works. The permit system creates a wilderness, and we all know that in this country a wilderness never stays just that. It turns into settlements”.

Meanwhile, on the other side of the wall

About two months ago I took a group of pre-draft teenagers on a short tour of the western side of the wall near Bil’in. As always, I was shocked to see just how much the settlement built on the village lands is expanding. Although the land belongs to Bil’in, and although the High Court ruled

The settlement on Bil’in lands and the wall (Haggai Matar)

that the state lied when stating the route in this area is meant only for security, while it was actually planned for settlement expansion, although part of the land was returned to Bil’in, and although the neighborhood is built without even the most basic construction permits (a matter of ongoing criminal investigation) – construction still goes on. And why? Because the High Court also ruled that if a neighborhood so large had already been built, with so many people living there, it mustn’t be dismantled. It is the whole story, in a nutshell: an annexing route, a wall, farmers who can’t cross and a whole new settlement on their land.

And yet there are those who suffer from the wall even more than the villagers who are losing their land. Thousands of Palestinians are stuck in the seam zone, on the “wrong” side of the wall. The next chapter will be devoted to them.

Read the first part of the series here, and the second here.

A courtroom in the Israeli Supreme Court (photo: Josh Yellin/CC BY-NC-SA 2.0)

It’s no longer a secret to anyone Israel is facing a rising tide of anti-democratic legislation – from new restrictions on free speech to the chipping away at the separation of powers between the legislature and the judiciary. Earlier this month I took a broad look at these trends in a piece published two weeks back on the New York Review of Books website, titled “The Knesset vs Democracy.” Because the premise was so broad, only a handful of quotes from the interviews conducted for the piece made it into the final text, which is a pity, as my interviewees had stark and startling analysis to offer. With the NYRB’s kind permission I’ll be publishing the full transcripts here over the coming weeks, beginning with this interview with Michael Sfard – probably Israel’s most prominent human rights lawyer.

Can you imagine the constitutional situation becoming so dire NGOs stop petitioning the Supreme Court? 

You’re going into murky waters here, but I want to make clear it’s not an option that isn’t being discussed. I wrote about it in 2004, in an article called “The human rights lawyers’ existential dilemma.” When you’re faced with a system that’s systematically violating human rights, on a huge scope, is it right or wrong to sustain internal, as opposed to external, resistance? Because when you resist from within, you legitimise the system. There are many prices that you pay. And it’s a very, very difficult question. The Supreme Court today is making a horrible, horrible mistake by rendering petitions by or on behalf of Palestinians less and less worthy of the effort. Really, even in simple terms of supply and demand. For years, the success rate of Palestinians approaching the Supreme Court has been absolutely appalling. There hasn’t been a single instrument the army wanted to use against the Palestinian that the Court failed to approve. However, the Court did provide – through informal pressure, through comments in the rulings and the hearings, what they call “in the shadow of the court” – some highly localised achievements for the Palestinians, as well as a handful of rulings that were later translated into English and seriously exploited for PR. And this constituted the oxygen that allowed this machine to work and made the Palestinians to remain willing to appeal.

Today, the Court is creating a situation that’s a lot less attractive for Palestinians. It sends a chill wind in the direction of everything concerning the human rights of Palestinians. It’s not happening all in one go, it’s a process. The latest ruling, on families, is practically a death blow. It prompted quite a few debates even among Palestinians on whether it’s right to go on petitioning the Supreme Court. And then we’ll see whether there’s a particular Palestinian individual who will still say that for even one percent chance of a success he has nothing to lose by going to the Supreme Court; or, the general feeling of collaborating with the occupant’s system will grow and grow. Because at the end of the day attorneys dealing directly with human rights, like myself, would find it very difficult to tell an individual Palestinian who wants to petition the court not to do that “for the greater good.” Because this is what we’d need to say to him: We won’t exhaust the one-percent chance you’ll get to reunite with your partner, because the Palestinian struggle for freedom will suffer for it. This is a legitimate statement, politically speaking, but it is not a legitimate position for a human rights lawyer to take, because this lawyer is supposed to always prefer the benefit of the individual person over some highly abstract political greater good. But this question is being constantly debated – both by human rights organisation and by individual lawyers who deal with such cases, and by the Palestinians. And I can tell you that there are cases that I’ve taken to court that I would take up today.

For instance? 

I wouldn’t take up any principal cases, cases that don’t focus on the benefit of a particular individual. I’ve taken up such cases before, and I wouldn’t today, because in my estimate, the harm in taking them up will be greater than the good. When it’s about an individual, I don’t feel I have the privilege to refuse. Can I imagine a situation in which I would refuse to approach the court altogether? Well. If, say, a bill is passed saying that only IDF veterans can serve in the Supreme Court. I’ve brought this up as a hypothetical scenario with my colleagues, when we discussed the appointment of conservative judge and settler Noam Solberg to the Supreme Court. Here we have a situation in which one of the justices is a settler, which, to me, makes the Supreme Court less legitimate an institution. If it becomes an institution in which only Jews may sit, it will make it an illegitimate institution, period.

Solberg’s appointment is an interesting case in point, because it raises the question – where do you actually draw the red line? Why is the appointment of a settler such a big deal when the Justice Ministry itself constitutes a settlement by virtue of residing in the East Jerusalem neighborhood of Sheikh Jarrah?

Sometimes you need artificial red lines, lines that you draw yourself. Coming back to the frog in the cooking pot – that frog has to set itself a deadline. To say, when the water boil to forty degrees Celsius, we need to reconsider. Why forty and not thirty-nine or forty-one? Simply because you need to reevaluate your situation at some point. And you also need to decide, way in advance, what is the temperature at which you jump out and run for it. So I can tell you with absolute certainty that a court in which, by definition, only Jews may serve as justices, is an illegitimate court. Unequivocally illegitimate. But then what if you have a person who has a chance, via that illegitimate court, to obtain the rescinding of an order to uproot the orchard that sustains him, do we go to that court or do we not? Or if he can go to that illegitimate court and persuade it to let him leave the Gaza Strip and undergo a life-saving operation: Do we go to the court or do we not?

And then there’s also the issue that every ruling in favour of human rights group instantly becomes ammunition for politicians who want to curb the powers of the court. 

That’s right – and don’t forget also that when you go to court you have to use a very particular language. I for instance had to insist to use the term “assassinations” rather than the official “targeted subversions”. To call the wall a “separation wall” rather than “security fence.” But then, in all honesty, this creates antagonism. If, tactically speaking, I want to win the sympathy of the justices, I can’t tell them, like I did in the permits system case, that this is apartheid. But there are things you simply have to do because you realise that otherwise you really do become complicit.

Looking at the bigger picture, how would you describe the transformation Israeli democracy is going through?

The attempts to define the Israeli regime in the past few decades have made use of many terms that will be familiar to your readers – an occupying regime, colonialism, imperialism, ethnocracy, and so on. Each of these has a role, even if none on its own paint the whole picture. But I think too little attention has been paid to fascization. And this is the process that we see. I don’t think you can presently describe the Israeli government as fascist – absolutely not. We can, however, see vectors that contain clearly fascist elements. Now, it’s an Israeli genre of fascism, not your classical European one. What makes this trend worthy of being described as fascism are the extreme nationalism that sees the People and the Nation as something metaphysical, organic, alive; and the rejection of liberal values that are seen as being detrimental to this nationalist zeitgeist. Israel has always been a very nationalist country – Zionism is, after all, a nationalist movement.But at least until today there was the aspiration and the pretence – pretence is important, even if it’s only pretence – that this can walk hand in hand with liberal values, especially where Jews are concerned. So we had this quaint mix – very strong nationalism hand in hand with freedom of speech, which was one of our strongest values, and as a lawyer who deals with this issue quite a lot, I can tell you that many Western countries could be proud of the way freedom of speech has been enshrined here in Israel. And these values are currently being taken apart.

The trends have always been there, but the point at which I think they really came into the open was Operation Cast Lead and the Goldstone Report and the “realisation” on part of the Israeli public that our “enemies” have “allies” from within. And this really let all the demons loose and cracked the apparently all-too-thin surface of liberal values – even when applied to Jews.

It’s not that there haven’t been clampdowns on freedom of speech before. It’s not that there haven’t been attacks on liberal values. But now we are suddenly seeing it happen systematically, in legislation – not something abrupt like shutting down a particular newspaper. You have the Nakba Law, the Boycott Law – fully fledged assaults on freedom of speech, and not on any particular instances of freedom of speech, but on entire genres. This is a whole other story – it’s different even from someone saying or doing something and being prosecuted for it, like the Kamm-Blau affair. And looking at it altogether, the only term I find useful for understanding all of this is fascism. And I’m happy to admit I’ve been searching for a different name, because I felt it was all too convenient. But the more I think about it, the more it appears to line up.

And it’s  not that there’s much support for civil society among the public, either. People won’t go onto barricades if the government actually clamps down on progressive NGOs. 

I’m not sure you’re right, but it really is difficult to guess where is the actual red line might be. The metaphor most apt, I think, is that of the proverbial frog being cooked slowly and not necessarily knowing when to jump out of the pot. This is why the idea of attacking not the NGOs themselves but their sources of income is so sophisticated. To slowly starve them out without confronting what they actually do or outlawing their positions. I don’t think we’re far gone enough just yet, however. I do believe people will come out into the streets if B’tselem was to be abruptly banned. After all, considerably weaker moves, like the attempt to set up parliamentary inquiry commissions, do provoke very strong emotions. But what we have here is more than a political struggle; it is a culture war. We are fighting over the very character of the state, the regime that controls it and how this regime interacts with the civil society. And while one side of this struggle has reared its head and took the lead, it doesn’t mean it has taken  over yet. They [the conservative legislators - DR] still discover on occasion that they’ve aimed too high. There’s a kind of a tussle of trial and error there.  But the general direction is downward, no question about it. The fact that we have twenty monstrous bills and only ten of them pass into law, still leaves us with ten new monstrous laws.

Having said that, while we are sliding in a very negative direction, it’s not yet free-fall. What I often tell the folks at my office when they get depressed is that even if we are standing on the breaks and the car is still sliding towards the precipice, it doesn’t mean we can take our foot off the breaks.  It also doesn’t mean that it doesn’t matter whether we continue hitting the breaks or not – of course it matters. The speed of the slide, after all, also matters. So the struggle is still on. We might be retreating, but it’s not yet a rout. There is opposition here yet.

Is there anything that can reverse the process? 

First of all, you have the wildcard – a war, some other kind of a disaster, would change everything. In the less-then-apocalyptic scenario, we should remember that we keep tightening the noose around ourselves as far as international isolation is concerned. I don’t accept the argument that this doesn’t matter. I don’t know at what point the isolation will grow bad enough for Israelis to say, alright, that’s too much, let’s toe the line that the international community draws. Now, it’s true that when you apply pressure, the first reaction that you get is resistance. At some point, though, this spring will begin to slack. I don’t know when and I certainly wouldn’t like that to have to be the way to make things right here. The world at large has an understandably complex relationship with Israel, and that makes it more difficult to apply pressure to us than to other countries. And even so, if you take a look at the past five years, you see a very clear change in how Europeans and Americans approach us. It hasn’t borne much fruit yet, but that doesn’t mean it never will.

A third scenario for change, and I wish I could see it happening, is a different kind of leadership appearing here. It’s hard for me to say how and when it can appear, but then again, who could possibly have foretold 400,000 people coming out into the streets over social justice? And who could have guessed this massive wave will simply sip away and leave us with nothing? Is it impossible then that 400,000 come out into the streets again over something different? I can’t tell. But there’s no doubt that leadership is something we very seriously lack.

Do you think all these negative trends will prompt American Jews to take some sort of action? And what if it does? After all, the States’ interest in Israel is not merely cultural – it’s also military… 

I find American politics on Israel very complicated. I’ve been trying to understand it for years – both in the macro and in terms of the Jewish community, AIPAC, J-Street. I think I understand it better than the average  Israeli but I still find it difficult to understand just how it works. I can tell you that although this may be naive, American elections are a cardinal event, not just domestically but also in terms of the relationship with Israel. Because despite the fact Obama’s administration didn’t manage to push Israel or lead Israel in a more desirable direction, there is still the feeling that this alliance based, at least rhetorically, on common values, is cracking up, not least because of the loss or change of values here in Israel. We had Hillary Clinton’s comments at the Saban forum, for instance, and comments from high up in the military that we are becoming a burden for the United States. And then the thing that keeps it together is the power of AIPAC. Which, I think, can only last for so much. Because if the American administration maintains, over time, that Israel’s values are changing to something very distant from the fundamental values to which the United States themselves lay claim, that Israel is becoming a security burden, AIPAC will not be able to keep it going for very long. Internal political interests, the courting for Jewish votes and Jewish donors will no longer be enough. Which is why the question of whether Obama gets reelected is so important. Republicans, obviously, have a very different view on this – significant parts of the American society are undergoing a change similar or parallel to Israel’s. So will the value gap change anything? It may, but right now I don’t have enough information to tell you if it will.

So what do you do for now- just keep hitting the breaks? 

First of all, yes, you do not take your foot off the breaks. Second, I believe there’s a historical duty on our part to share with the world what is going on here – it’s not an internal, private Israeli matter. So long as there’s the Occupation, and even when it’s gone, what’s happening here is anything but our own private matter. And third, since I diagnose our disease as symptomatic of fascism, I think the situation calls on us to set up an anti-Fascist League. Such a league is an excellent endeavour to attempt because it can bring forces that will not come together under any other circumstances. I can clearly see parts of the Israeli public that cannot cooperate in almost any situation, but can join hands against this legislation. So for instance the fact that you had (Kadima) MK Meir Sheetrit speak at the protest against the non-profits law shows me that even if only subconsciously, people still sense this thing that I’m trying to name. It’s not happening yet but it has to happen, as it happened whenever fascism actually took power – and it’s yet to take full power here. I don’t think it will happen soon and in one fell swoop; we won’t have someone crank up the heat suddenly to 100 degrees. But, I think we are slowly being cooked, just like that frog in the pot.