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Don't abandon the legal system in fight against occupation

By Noam Wiener

Former Israeli Supreme Court Justice Edmond Levy submitted on Monday his report on the legality of settlements in the occupied territories, recommending we change the very language we use to describe the territories, taken by force of arms by the Israeli army in 1967. The report declares, contrary to more than forty years of Israeli Supreme Court jurisprudence, that the territories are not occupied according to international law. The report further recommends that settlements built in the occupied territories, without authorization even according to Israeli law, be authorized ex-post facto based on the legal theory of administrative promise.

Following the Levy commission report, many argued, including Noam Sheizaf and Itamar Mann, that the Israeli left’s adoption of a legal approach to the woes of the Palestinians in the occupied territories was mistaken from its outset. In this post, I will address this claim rather than the commission’s shoddy legal arguments.

If anybody from the left ever thought that legal arguments have the power to end the occupation, they were obviously mistaken. Yet this does not mean that the legal field should be abandoned by individuals concerned with the plight of the Palestinians.

Law, in many ways, is an instrument legitimizing the use of power. When we say that an act is legal, we are (usually) saying that this act is justified because it conforms to a rule created by a procedure that enjoys consensus agreement. In most democracies, this means that the rule was approved by a majority of a group of elected delegates.

Because laws do not make broad moral and political statements, but only permit or prohibit limited conduct, they can only be used to attack the legitimacy of very specific actions. Furthermore, because laws are meant to address innumerable eventualities, they are usually stated broadly in a manner that opens them to interpretation. Laws are thus almost always specific in application and general in meaning.

Thus, making a legal argument about any situation, including the abuse of Palestinians in the occupied territories, is limited in two ways. First, there is no legal way to attack the general immorality of the legal regime, only its specific manifestations. One cannot go to court and argue that the treatment of Palestinians is writ large inhumane. Instead one can attack the demolition of a house, the torture of a prisoner, or the denial of the right to move across borders. Second, even a limited argument regarding a specific action is subject to a counter-argument.

Thus, arguing that something is legal is not a political trump card. But does that mean that adopting legal arguments is a waste of time? I don’t think so.

First, the ability to ameliorate specific injustices is not worthless. Preventing the demolition of a house, making it more difficult to torture, and allowing a student to attend university are important in their own right in the protection of individuals. And second, legality, despite its limitations, carries immense capital in the public sphere. If it did not, Netanyahu would not have bothered to convene the Levy commission to try and demonstrate that the settlements are legal. Arguing that the settlements are illegal carries a lot of weight in public opinion both in Israel and abroad. It carries weight because people think that obeying the law has intrinsic value, and because people think that violating the law (other than in very exceptional circumstances) is wrong. Relinquishing the legal argument means giving up a very powerful instrument for demonstrating the wrongs of the occupation.

Giving up on the legal argument, especially in the context of the Levy report, also means giving up on the use of the term occupied. It is not without reason that foreign ministry officials keep attempting to refer to the occupied territories as “disputed” or “held” rather than occupied. They are fully aware that the word occupied, like all words, carries with it more than just legal significance. To those who live in the occupied territories, either as occupiers or occupied, this is almost superfluous. Random house searches, roadblocks, warrantless arrests, curfews, administrative detentions, governing agencies appointed by the military commander – these are hallmarks of a military occupation. But to the rest of us, who do not experience the occupation on a daily basis, this distinction matters because it forces us to imagine an occupation.

The struggle against the occupation, within Israeli society, takes place on many fronts. In the media front, Akiva Eldar crosses swords with Ben-Dror Yemini and Ben Caspit. In the political arena, Zehava Galon battles Avigdor Lieberman. In the legal field, organizations like Yesh Din and Gisha attempt to ameliorate the damages caused by government agencies and the settlers. More often than not, the Israeli courts are not receptive to their petitions. But the NGOs’ petitions are worthwhile because, beyond specific remedies, they provide additional voice to the victims of the occupation.

Legal arguments will not end the occupation of Palestine; they can only highlight the injustices inherent to this occupation. But that should be reason enough not to abandon the field.

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

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    COMMENTS

    1. Sinjim

      Your second to last paragraph is all anyone needs to read to see how utterly worthless your legalism actually is. It’s nothing more than a defense of philosophical and rhetorical arguments between people who want to nail Palestinians to wall and people who want to screw us gently.
      .
      You want to highlight the injustices of the occupation? Jesus Christ, let its fucking victims tell you and learn from what they have to say. Palestinians don’t need and certainly haven’t asked Eldar or Galon or any of the plethora of privileged Zionist would-be saviors to speak for them.

      Reply to Comment
    2. Sinjim,
      .
      For this to end (and that won’t be anytime soon) you will need both Israelis and Palestinians working as if from opposite ends of a long rope, pulling toward one another. I do not gainsay your anger over what is really lived in the West Bank and Gaza. You are correct that those not subject to sometimes daily humiliation (and, if not daily subject, knowing it is out there, knowing you have to work around it) cannot understand what the word “occupation” means to the occupied. But legal thought is not worthless. Ideas matter. They grow, they spread, take stands in new situations.
      .
      In about 1883 the US Supreme Court ruled 8-1 that racial segregation in the means of transport and much else was constitutional. The lone dissent was the first Justice Harlan (there was another Harlan, actually, his grandson, who served later). Harlan wrote a long dissent which seemed quite futile at the time. But 50, 60 years later, that dissent started to become the law of the land. Harlan was privileged; he never endured discrimination. Yet he prepared the ground for the successful long fight for its removal.
      .
      What is at stake in legal battle is not just clear thought, but the evolution of thought, the incorporation of the concept of rights. That battle needs to be played out within Israeli society, for Israelis as much as for Palestinians. What is at stake here is, insulting as it sounds, greater that Palestinians, including them, and more.
      .
      As I have said, this night on a related thread of 972, I cannot ask Palestinians to fight as I say. I cannot imagine how many lives have been truncated by these decades. I cannot imagine how many battles have been lost, how many people have given up in their very lives. But I do believe I know that without Palestinian fight there is no hope for either society. Both sides have both internal and external fights; all of these fights are important. And I, who can do absolutely nothing in aid, can only sit here and ask that you keep fighting.
      .
      The battle for law is part of the battle for the future. Many times African Americans were told the law would not help them; many times it did not. Then–it did.
      .
      This battle is a battle within humanity itself. There are victims on all sides. I may be deluded, but I think this latent struggle in Israel is important for humanity as a whole. And I will be no part of it. You may, though.
      .
      This Levy Commission report (if I can call it that) will eventually be seen as a rear guard action, as an attempt to vanquish rights by denying application of a word. As Wiener points out, jurisprudence needs a case, facts surrounding one or more perons–and there rights are born. If you want to change the world, you have to be prepared to lose.

      Reply to Comment
    3. Noam W.

      By and by, the petitioners in most of the petitions before the Supreme court relating to th OT are, of course, Palestinians living in the OT.

      Sinjim, I sometimes wonder why you bother reading my “Zionist” texts in the first place.

      Reply to Comment
    4. Noam W. it’s a very important point, so thank you for writing this. Especially since the right is now undertaking a multi-pronged legal strategy of its own – guess they think it’s fair to occupy any realm of life…

      @Sinjim, just 1 question: can you tell me what you did today to end the occupation? b/c i know you know that your comment did not advance that goal.

      Reply to Comment
    5. Aaron

      I think Noam’s exactly right here. Law is one important instrument of many. Look at what those lawyers did with those flotilla boats in Greece. It ain’t called lawfare for nothing. If law can be used to win small, practical victories, then why not?
       
      I’ve got a question for Noam or any of the other legal types around here. I understand that you say that this is in the public law category of “occupation.” I’m not sure why – because Jordan had legitimate claim before 1967? Because belligerent occupation applies even to territories that weren’t previously under anyone’s jurisdiction? In any case, my question is, what is the term for the situation that Levy et al. described? Regardless of whether it applies to the reality in the territories, does the juridical relation that they described have a name?

      Reply to Comment
    6. Aaron

      To clarify my question: a state with de facto control, as a result of a war, over a territory that was res nullius; claiming legitimate jurisdiction; and where the population is hostile to that state’s rule. Is that still called “belligerent occupation,” or is there a different term for it?

      Reply to Comment
    7. Noam W.

      Thank you Dahlia.
      .
      Aaron, you asked a legal question, I am going to provide a legal answer – I am sorry if it will be a bit long. Two things. First, res nulius is a defunct term. There is no res nulius. I doubt if there ever was – perhaps in uninhabited islands in the middle of the ocean.
      .
      During the Age of Discovery, a.k.a the age of Spain, Netherlands, and Portugal and Great Britain (mostly) taking over indigenous populations claiming they don’t count, the Europeans claimed the lands were empty.(see more here – http://www.youtube.com/watch?v=uEx5G-GOS1k).
      .
      There are no lands empty of people today and were there are people, they govern themselves or are governed by others. The ICJ supported this view in its decision on Western Sahara back in the seventies.
      .
      At any rate, control over the governance of the OT went from the British to the Jordanians to Israel… so even factually there was never a period of political vacuum where the land was “up for grabs”.
      .
      Second, under international law, taking a land by force and annexing it is not legal. It doesn’t matter who you take it from. To compare to national law for a minute, imagine that I come and take over your apartment by force and stay there. Two weeks later, some other bully comes and takes the apartment by force and then claims that it is rightfully his because the previous bully had no right to hold it. I think you get where I am going with this.
      .
      So – no res nulius, and it doesn’t matter who you take the land from, if you take it by force of arms and hold it, you can either annex it, or hold it under belligerent occupation (belligerent because it was taken by force).
      .
      Of course if the land belonged to you originally, it is a different story, but Levy’s attempt to say that the territories were originally Israeli doesn’t hold even a little tiny bit of water.

      Reply to Comment
    8. RichardL

      Greg Pollock asks Sinjim to wait 100 years for the Israeli legal system to catch up with international law. Noam finds his anger out of place while Dahlia patronisingly suggests that he has not done enough today to single-handedly stop the occupation.
      Just for the record I had not noticed that house demolitions had stopped (I thought they were still increasing in incidence), I was not aware that torture had been stopped, including against Palestinian minors, and I was not aware that Palestinians, particularly from Gaza, have free access to education. In fact I don’t see that Israel’s disgraceful kangaroo courts have achieved very much for human rights at all, ever. (It is after all a Supreme Court Justice that has written this shit about the legality of the settlments.) What fairy story are you going to sell me next? Perhaps you could write an article describing the exemplary work of the Turkel Commission. Do you guys really wonder why a Palestinian might be impatient and angry?

      Reply to Comment
    9. Sinjim

      Dahlia, whereas your passive-aggressive comment just liberated Palestine. I live in the US, and it’s the middle of an average work week. What do you expect I could’ve done “to end the occupation today”? You know for a fact that those of us who live in exile can’t do something every single day to fight your country’s oppression. But hey, at least you got to rub my exile in my face. I hope you’re proud of this little moment of yours, ally.
      .
      Noam, just because I think your Zionism is a part of the problem doesn’t mean I shouldn’t read what you say and respond to it. Both you and Dahlia replied to my criticism with mockery, but neither of you can deny the fact that in your defense of legalism, you only mentioned Jewish and Zionist voices who duke it out. Palestinian voices remain invisible to the Israeli public.

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    10. Noam W.

      RichardL, I commented, and I stand by my comment, that whatever I write seems to Sinjim to be automatically, wrong. So I wonder why he bothers.
      .
      As an example of how he seems to pay attention more to who I am rather to what I write, I commented that while he wrote I that I should listen to the victims – it is the victims who are petitioning the courts.
      .
      I am also not particularly fond of comments using profanity.
      .
      Finally, you will never ever find me saying that a Palestinian’s anger is out of place (though, I don’t know if Sinjim is Palestinian). Not in my writing and not in my comments.

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    11. Noam W.

      Sinjim, this post starts and ends by stating, very categorically, that legal arguments alone will not end the occupation.
      .
      I promise that if you stop commenting how my writing is “utterly worthless” and tell me to “fucking” listen, I will be more respectful.

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    12. Yuval E

      One should also note the opposite influence: how the occupation is corrupting the legal system. The courts are applying illegitimate laws, unjust laws, aiding and abating in human-rights abuses, yielding to “secret” evidence, sentencing defendants who do not get chance to defend themselves, rubber-stamping ‘administrative detention,” pretending to believe obvious distortions or outright lies of the security system. Oh, and the ranks of the courts are being slowly filled by people who have actually worked for the occupation as lawyers or *judges*.
      This is a serious issue, for many reasons. For example, the virtues of the system and of judges are habits, and the courts should be beyond reproach.
      (after Leif Wenar)

      Reply to Comment
    13. AYLA

      Yes to what Greg Pollock wrote about how we have to be working from both ends of a long rope, and yes, if the Right is staging a so-called legal argument, and there are many people, especially in the U.S., who like to back Israel based on rhetoric and semantics (i.e. what’s happening in Gaza is not technically an Occupation. My response: who effing cares what it’s called?), then fighting via legality is not silly. Anyway, everyone has their natural voice and gifts, and if some people want to work at/via the legal system, they they should go for it.
      *
      Sinjim, I think what’s really hard for me, generally, not about you in particular (in fact much more about others, mostly off this sight), is that when you’re a Jew, or especially an Israeli, working to end the Occupation–(if you’re me, you’re doing so while witnessing other people really devoting their lives to this much more)–and at the very same time, you keep hearing the growing Opposition voice saying that it’s not our fight and we don’t get to say how to fight it and we don’t get to fight it in this place or that way and–contrary to what you said about how we should listen to the victims (I agree!)–that the oppressed should not have to teach the oppressor (as if we don’t have a lot to learn from each other, or there’s no value in sharing experiences), etc. etc. etc. and then, the clincher, that in the end, there will be no Jewish State, (which would be fine with me if there were any addendum about about protecting Jewish interests on this land)…. ummmm, why are we fighting? apparently no one wants us to be fighting *your* fight, though we’re free to show up for west bank demos and do as we’re told (not my actual experience, at all, but how it sounds), and if we WIN the fight, we get, drumroll… kicked out! (I’m not speaking of myself in particular in this regard; I’d give up my place for Palestinian justice). It’s hard to explain, Sinjim, what it’s like to get emotionally involved on behalf of Palestinians, and then to get slapped again and again about doing it wrong (which is different than disagreeing). It’s also hard to keep fighting when there’s the general assumption that since we’re the oppressors and you’re the oppressed, there’s no reason for Palestinians to learn anything about the Israeli side of things, and I’m not talking about the Bible or the Holocaust (not that I’m against the inclusion of either); I’m talking simply about history on this land over the past century or two, especially in 1948 and since. There is another side. I don’t want to hear it from the pro-Israel camp, and I don’t expect to hear it from Palestinians, but a bit less slappage would go a long way.
      *
      Meanwhile, I just returned from a meeting in a small bedouin village that you can’t see from the road, 7 km north of Mitzpe Ramon. The people there requested that Jewish residents, many of whom they’ve known a long time, attend to discuss a new insane way that Israel is fighting their presence there and also, in the case that they get to stay, to talk about how to get tourism going there since they have an eco-chan. There was nothing NGO-y about it; it was very neighbor-y, desert-style. I came home remembering how important it is to remember that that is actually what’s happening here, all over the place, and although there are people on all sides who are committed to anger, there are plenty who are not. They just comment less.

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    14. AYLA

      p.s. Maybe telling you how to comment is no different than Palestinians telling me how to fight. Maybe. But I know that empathy on both ends would go a long way. And lastly: you can do a lot from the U.S. Everything we do, say, and I’d argue even what we think makes a difference. Your comments here actually make a difference, one way or the other, Sinjim. I have to believe that or I wouldn’t be here.

      Reply to Comment
    15. Sinjim

      Noam, you know enough about me to say that I think everything you write is wrong, but not enough to know that I’m a Palestinian? Re-read my first comment, and tell me you still don’t know.
      .
      As for what’s worthless, I said nothing about your writing in general. I did say your legalism is worthless, though, and I stand by that, because Palestinians have made next to no progress by any measure in your courts. All it has done is legitimize Israeli jurisdiction over Palestinians especially when the decisions deprive them of more rights, which is what happens over and over again. Legal arguments from liberal Zionists like Akiva Eldar and right-wing Zionists like Avigdor Liberman will not only not contribute to the end of the occupation, they’ll prolong it. That’s not to say that there aren’t instances where going to the courts has resulted in (very limited) victories, only that failure has been the only outcome of this process, and there’s no reason to believe that any other outcome will come about from these actions.
      .
      You say that it is the victims who are petitioning these courts. Yes, and more often than not at the behest of Israeli and/or Zionist groups like Peace Now and Yesh Gvul. Are you telling me that the Palestinians are capable of navigating the Israeli judicial system on their own or that before these groups came along, they were taking their cases to these courts by themselves? What gets reported on these cases, the victims’ own testimony or the legal decisions made by Israeli Jewish judges? Court petitions are not the same thing as letting Palestinians use their own voices to highlight what they go through at the hands of Israelis.
      .
      And anyway, how much more legal highlighting needs to happen before an Israeli understands the depths of the horror of their occupation? People have been highlighting through legal arguments for decades, and nothing has changed except for the worse. You want to keep doing the same thing and hope that the result will be different at some point in the future. So, yes, I got mad at what you wrote and inserted the word “fucking” before the word “victims” in my comment to you. It doesn’t invalidate one iota of my criticism of your more-of-the-same approach.

      Reply to Comment
    16. RichardL

      Noam W: I don’t know why you tell me that you do not like profanities in posts. Are you hoping that the person (or persons) responsible will take note of what you tell me? (!)

      As to Sinjim’s response to you, this again is not my business. It’s up to you decide whether he thinks your posts are wrong or whether they are “automatically wrong”, which is a very different position. In this case it seems quite clear that it is “wrong” because he has made a specific complaint. Why don’t you deal with the complaint instead of trying to get me onside?

      Furthermore Sinjim has said on a number of occasions that he is Palestinian. Why do you suggest to me (without any reasoning) that he might not be? (Or are you just not paying attention to what he writes?) If you have a reason to think he is a liar then it would be reasonable for you to confront him. But I find it unreasonable that you should put it as a suggestion to me as though I might somehow give you moral support. I certainly will not.

      But this matter of lack of etiquette is a side issue. I think you take the Israeli courts too seriously.Yes the ritual has to be gone through (and paid for let us not forget); it cannot be ignored like the Israeli elections. But at the end of the day the Israeli courts are corrupt and unjust. (And if you disagree then refute Yuval E’s post.) Levy’s perversity might be taken seriously in Israel, but outside the Zionist state it merely confirms Israeli arrogance, lawlessness and contempt for international institutions. If an Israeli’s world is so insular that they are unable to understand this then they will have to live with the opprobrium that it necessarily engenders.

      Reply to Comment
    17. Noam W.

      I’ve read back over the comments and I think the back and forth on style does nobody any good. So I apologize to all.
      (Sinjim I did not mean to call you a liar, I just don’t remember you ever stating your nationality before – the post you wrote right above my response to RichardL was published concurrent with mine so I could not see it when I war writing my response to him).
      .
      Sinjim, I think that the question whether Palestinians should apply to the courts or not because they legitimize the occupation was relevant and important sometimes in the early seventies. I think, I probably agree with you that it may have been a better idea not to even try. But now that battleground is being fought in I think that ship has sailed.
      .
      And also, who am I (and perhaps also who are you) to tell Dawiqat (sp?) not to petition for help when his private land was taken from him sometime in the mid-seventies to build the settlement of Elon More?
      .
      I think this last point also addresses your point about who is “taking the petitioners” to the Court. These petitioners are grown men and women. Nobody is forcing them to petition. Are you saying that the Israeli organizations that assist these petitioners are to blame for their legal assistance?
      .
      Also, as I’ve reiterated a number of times above, this should not be an exclusive arena for Palestinians to raise their voices.
      .
      And finally, how much more highlighting needs to be done – apparently a lot more, because, I am sad to say, most of my compatriots are not getting it. Whether you (and I) like it or not, without Israeli cooperation this occupation will not be over, especially as it doesn’t seem anybody outside of Israel is willing to expend the political capital required to make Israel do it against “its will”. We’re stuck – you and I.
      .
      Richardl – I am not sure what you mean to say. I do not support the Levy commission report, I wish that there was more opprobrium leveled against the state of Israel for what it does in the OT. Unfortunately, opprobrium from you, Sinjim, and me is insufficient. But what does that have to do with my statement that the legal arena is not one which should be abandoned?
      .
      Yuval you are of course correct – but whether we let the government and the settlers do whatever they want without contesting these actions in court or not will not make any difference at all.
      .
      The administration of the OT will continue, people will be put in administrative detention and some bureaucrat will continue signing the orders and will then move on to become more senior in the system.
      .
      That the occupation is terrible for Israel is, in my view, obvious. But I think that to make us the victim of the occupation is somewhat insulting to Palestinians.

      Reply to Comment
    18. Noam W.

      The sentence
      .
      “Whether you (and I) like it or not, without Israeli cooperation this occupation will not be over, especially as it doesn’t seem anybody outside of Israel is willing to expend the political capital required to make Israel do it against “its will”.”
      .
      should say
      .
      that the occupation will not be over until Israelis see how wrong it is – because nobody else seems to be willing to expend the political capital to force Israel to end it.
      .
      Sorry long comment

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    19. Sinjim

      You ask who are any of us to question Dweiqat’s decision to go to the courts. I do not fault a desperate person in a desperate situation seeking whatever remedies may alleviate his suffering. Like I said, there have been instances of victories before the courts. But even this case undermines your argument because the supreme court ruled that Israel does have a right to appropriate Palestinian land, just not for civilian settlement purposes. And the settlement of Elon Moreh ended up being built anyway on some other plot of occupied land.
      .
      And no, I’m not saying that these organizations are to blame for providing legal assistance. I’m saying they’re to blame for promoting and operating under the notion that there is any salvation to be found in the Israeli judicial system.
      .
      You say all of this is a moot point because we’re 40 years removed from the early 1970s. I disagree. Nowhere is it set in stone that Palestinians must continue to treat the courts as a legitimate legal venue to air their complaints. I do not deny that the alternatives to this problem, for example, taking petitions directly to international courts or an organized boycott campaign against the entire judicial system (civilian and military), is much harder to implement.
      .
      Regardless, the legal illusion needs to end. The courts are part and parcel of the whole Zionist enterprise, which was built on the destruction of Palestinian society and the continued subjugation of its people. There is no lasting good that will come from them.
      .
      Ayla, much of what you wrote seems tangential to the argument taking place here, and I don’t know how to respond without going completely off track. So I’ll just link to this excellent article by Linah Alsaafin, a Palestinian deeply involved in resistance efforts on the ground in villages like Nabi Saleh: http://electronicintifada.net/content/how-obsession-nonviolence-harms-palestinian-cause/11482. She expresses all I have to say on this topic and better than I ever could.
      .
      Greg, sorry if it seems like I ignored you, but a lot of what I’m saying to others applies to your comment. I’ll just say what happened in the US doesn’t have to be a blue-print for what happens in Palestine. This is 1883 or even 1983. Never mind the changed standards of human decency, there are so many more tools available to change mindsets and the perimeters of the conversation. It doesn’t have to be top-down like it was in turn of the century America.

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    20. Aaron

      Noam, thanks for taking the time to write that answer. It’s just the kind of explanation I was looking for. For a layman like me that stuff is really interesting, but for you, explaining it must be a lot like work. So, thanks.
       
      Just to be clear, I wasn’t suggesting that res nullius gave Israel any legal right to annex or settle the territories. I was only suggesting (you say wrongly) that it’s relevant to the category of “belligerent occupation.”
       
      Another thing I was wondering: When was the first ruling that territories not previously held legitimately by any state were under belligerent occupation? Up until some time “belligerent occupation” referred to territory that had previously been under the jurisdiction of a state (right?), and you’re saying that’s no longer part of the definition. When did the definition change? Was it the 1970s ruling you mentioned, or much earlier? For instance, I think the ICRC interprets the Geneva Conventions as applying to cases like this, i.e., where the territories had not previously been under the jurisdiction of a party to the conventions. But I’m not sure if that’s relevant to the category of “belligerent occupation” in general.

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    21. Aaron

      The little drama being enacted in the comments reminds me a lot of the drama between Jews and Negroes in the 1960s. It’s almost a word-for-word replay.

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    22. AYLA

      @Sinjim–yes, I am off topic, responding to something more general, which, in fact, is covered by the very article you posted which I had read before writing those comments to you. It’s interesting you should post it in response to me, since I was commenting in many ways in response to it (and her arguments that I’d heard albeit less eloquently and less succinctly, before). Let me just say this: The machine of the Occupation is being fueled on many levels, and can therefore be fought on many levels, and I happen to agree that we should not give up on the legal system as one venue since the occupation is being fueled, in part, by the so-called legal system. The Occupation is also being fueled largely by American Jews, most of whom don’t know much about it nor the Israeli “legal” system, so again, there is a *lot* you can do from the U.S., unless you agree with Linah Alsaafin about it not being your job. Personally, I’m finding that I’ll burn out completely unless I focus on what to do, not what not to do, and on what’s actually happening toward good. In fact, there’s a lot, and to be out there, doing it, rather than in here, talking about what not to do, is what keeps our spirits alive, and in the end, *that’s* what matters.

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    23. sinjim: “All it has done is legitimize Israeli jurisdiction over Palestinians especially when the decisions deprive them of more rights, which is what happens over and over again.”
      .
      Very true. The machine of occupation, as Ayla correctly calls it, includes the Israeli legal system. Since the occupation began, the legal system has gone hand in hand with it, except for a few “fig leaf” rulings here and there. In fact, the legal system is as much an enabler as American Jewry (although in my opinion, the latter are more to blame, enabling-wise).

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    24. And let’s not forget that there are TWO legal systems. There is one west of the green line, which enables the one east of the green line to have a whopping 99.5% conviction rate.

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    25. Sinjim, no matter where you are in in the world, your comments need not be as non-constructive as I consistently find yours. most people write on this site b/c they want to raise support in some way for ending the occupation or calling out other injustices. It seems like you’re not truly concerned with any of that, or even interested, but that you’ve made a sport out of picking out sentences that in some warped interpretation, you believe prove that the writers have the opposite motive. Which is a shame b/c you seem intelligent and surely your mind cd be put to better use. really not sure how you got to the exile part of it -i had no idea where you lived when I wrote that. Please reconsider your goals and decide if what you’re writing in the comments is going to achieve them.

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    26. Kolumn9

      Hahaha. It seems that we have a consensus forming here. The perpetuation of Israeli control of the territories is the responsibility of… wait for it… American Jews. Sinjim, being in ‘exile’ in America should go look for American Jews to target for their obvious guilt in oppressing the Palestinians. I love the guilt games. The Palestinians are guilty of nothing, ever. The Israeli Jews are partially guilty of something, but apparently their sin is letting the American Jews determine policy for them. So, the primary fault for the whole situation rests on Joel Cohen of Brooklyn, NY who has never been in Israel and thinks Tel Aviv consists of sand dunes, cactuses, and a couple of trees planted by the JNF. Have I got that right?
      .

      Also, Sinjim makes the best case here. Are you even listening to yourselves? Your supposed struggle for Palestinian rights consists of filing paperwork with either an IDF court or an Israeli High Court where you have to argue whether security or military prerogatives overrule some aspect of Palestinian rights. Your victories within this context are about as hollow as it gets. Congratulations, Ahmed gets to keep some land because the IDF can build the wall over there instead. But hey, as long as you feel better about yourselves. From my point of view you are all doing a great job.

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    27. @K9: “So, the primary fault for the whole situation rests on Joel Cohen of Brooklyn, NY who has never been in Israel and thinks Tel Aviv consists of sand dunes, cactuses, and a couple of trees planted by the JNF. Have I got that right?”
      .
      Yes.

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    28. Kolumn9

      Oh this gets even better. Dahlia just told Sinjim that what he writes in the comments here is what will have an impact on the situation. First, that is hilariously self-aggrandizing. Here is a slogan for the modern leftist movement – ‘the struggle continues in the blog comments’.. interspersed with the comments of hecklers and comment spam. My mom works from home and makes $95/hour. Second, I am sure Sinjim will change his generally consistent anti-Zionist position so that he can be judged as being more constructive by liberal Zionists now that he knows that what he is doing is damaging his ’cause’. Does it really?
      .

      You guys are so precious with your struggle.

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    29. Kolumn9

      Ami, well shit, I gotta buy Joel Cohen a beer sometime.

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    30. @K9: “well shit”, you should. I hear enablers love to hang out together.

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    31. Kolumn9

      Ami, yep, we like to sit around and swap stories about how to enable some more. Funny thing though, according to Sinjim’s ideology all of you are enablers as well. We could have a joint meeting.

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    32. @k9 – that’s sinjim’s ideology. Shouldn’t you ask me my own ideology before asking me out on a date?
      .
      Forget it. You’re not my type.
      .
      And yeah, I’m sure you swap stories like that. I see you do it so well on the site every day.

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    33. Kolumn9

      Ami, I am really shallow that way. All about the looks. I couldn’t care less about my date’s ideology as long as I can get in their pants. You’ll come around.

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    34. RichardL

      Noam (if you’re still there). What do I mean to say? That’s a valid question. I think the Israeli legal system is so intentionally racist and unjust that you have not made a case for continuing working with it. OK it will throw out a few sops from time to time such as the barrier alteration at Bil’in, but its primary purpose is oppression, not justice. As such the real legal battle needs to be elsewhere, I think. Marwan Barghouti made the point when he refused to acknowledge the court. It would have made no difference if he had; the judgement and verdict would most likely have been exactly the same. He made a better point by treating it with contempt.

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    35. @K9 – yeah. I’d say you’re shallow just about every way possible.
      .
      But that’ll be the last ad-hominem. From both of us. (and i mean it. try me.)

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    36. Noam W.

      RichardL, that is a valid point. I am not sure it is as clear cut as you say it is, but let’s assume it is. I think I answered what I thought about it in my earlier response to Sinjim, namely, that I think that decision should have been made initially, and that today this will not make much of a difference. I think what Bargouti did was laudable (though if he is responsible for the civilian deaths he was accused of taking – he should be in jail anyway), but I do not think we can ask people to go quietly into the night.
      .
      Sinjim, I think this is as far as we are going to get – I just wanted to clarify that I do not think Dweiqat won a victory – I think it was a resounding loss – Begin knew it and that’s why he was so happy with it.
      .
      Aaron, I am not sure, I think it annexation became illegal was around the turn of the previous century. That was a period, somewhat like the late 1940’s, of cosmopolitanism and surging humanism which brought us the Hague conventions on the laws of war and ended the Westphalian Paradigm of nations as absolute sovereigns subject to (almost) not laws. I believe it was refortified again in the IV Geneva convention.

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    37. RichardL

      Oh Noam! “(though if he is responsible for the civilian deaths he was accused of taking – he should be in jail anyway”

      Well of course: he’s Palestinian. There are no war criminals in Israel are there?

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    38. Aaron

      Noam, actually I was wondering about belligerent occupation, not annexation. Even now, Wikipedia defines belligerent occupation as “effective provisional control of a certain power over a territory which is not under the formal sovereignty of that entity, without the volition of the ACTUAL SOVEREIGN.” (emphasis added) You’re saying that the emphasized part is no longer a necessary part of the definition – that an actual sovereign (as opposed to a government) need not exist. I’m just wondering, since when? Presumably, later than the time when annexation of res nullius stopped being legal.
       
      There was no legally recognized sovereignty in the West Bank in 1967, though of course the territory was governed by Jordan. I’m wondering if the territory was, juridically speaking, under occupation in 1967 – or in 1948 or 1949 for that matter, when Jordan seized it. Even assuming that today’s definition applies, I’m wondering if the definition of the time applied in 1967 or 1949.

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    39. Aaron

      Actually, the more I think about the concept of belligerent occupation as explained here, the more incoherent it looks. I’m just thinking out loud here. The Wikipedia definition might be just or unjust, outdated or not, but at least it’s coherent. The control of territory is without somebody’s VOLITION. Whose volition? The volition of the ACTUAL SOVEREIGN. Note that the will of the actual sovereign might be totally opposed to the will of the population. If, say, Jordan seized Um al-Fahem in a war, and the residents were thrilled and wanted to be Jordanians, but the State of Israel – the actual sovereign – was opposed, then it would still legally be a belligerent occupation, the residents be damned. The reasoning is perhaps unjust, but coherent.
       
      But if there’s no actual, recognized sovereign, as there wasn’t when Jordan seized the West Bank nor when Israel seized it later, then whose volition is relevant to the question of whether it’s an occupation? The population’s will, i.e., public opinion? That’s reasonable if there’s no sovereign, maybe, but if you accept that principle in the case of lack of sovereignty, then don’t you have to accept it if there is an actual sovereign, too? I mean, you have to base your reasoning on one or the other; you can’t say, “I’ll base it this, except when I can’t, and then I’ll base it on that.” But basing it on public opinion consistently would be absurd as well: It says that you if you seize territory from your enemy, you’re not an occupying power as long as it’s OK with the people living on that territory, no matter what the legitimate, actual sovereign thinks. A recipe for never-ending irredentism.
       
      So this is how it looks to me, a person who doesn’t know what the hell he’s talking about. The category of belligerent occupation could (1) depend consistently on the actual sovereign’s will, presupposing the existence of an actual sovereign (Wikipedia’s definition) – consistent but sometimes insufficient; (2) depend consistently on public opinion in the territory under control – consistent but sometimes unjust and extremely subversive; (3) depend on the sovereign’s will if there’s a legitimate, actual sovereign, else on public opinion – inconsistent and unprincipled. By (1), Israel is not an occupying power; by (2) and (3), it is. But (1) is the only definition that makes sense to me.

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    40. Noam W.

      RichardL – of course there are, and I hope they pay the price for their crimes. I wrote on this site about this issue before.
      .
      Arnon, as a matter of principle I do not use Wikipedia as a source for citation ever. The article is footnoted to a book by Eyal Benvenisti – but since I don’t have his book in front of me, it is hard for me to know the context in which the definition is stated. Considering the citation is to a roman numeral I assume that it is only part of the introduction to an entire book about the occupation…
      .
      By and by, I know Professor Benvenisti, I’ve heard him speak on the subject of the OT, and I can’t recall him ever expressing any view other than that they are indeed occupied. The last piece of his I read was regarding the question whether Gaza changed from occupied to non-occupied following the disengagement.
      .
      What I am saying is that what matters is the substance of the act – i.e. the taking over of territory that isn’t yours by force of arms. It isn’t about public opinion. It is about how you are obliged to treat the people and their rights once they are under your control.
      .
      From this definition I can take you down the specific examples you provide: So in the question of Jordan taking over Um El Fahem, Jordan would be taking over land by force of arms and would therefore be holding it as an occupied territory.
      .
      The interesting question you can ask, is whether the population of the occupied territory could, by virtue of its own will (through a plebiscite or some other instrument)seek to secede from its former sovereign and join the new power that has taken over its lands.
      .
      Generally speaking, there is an assumption in international law of the inviolability of state borders. Thus States have a right to their recognized territorial boundaries. You may ask at which point in time where these borders decried – the answer is that when joining the UN, member states take upon themselves the commitment to respect other member states’ borders.
      .
      So – there is no right to secede. Against this, there is a right to self-determination, so national groups have a right to self rule under international law. These rights sometimes collide as they did in the case of Kosovo – you can read the ICJ’s decision on that in the ICJ’s web page.
      .
      Following this logic, when there is no clear prior sovereign, as there is in the case of Palestine, the problem of succession does not exist, and so the right of the Palestinians to self-determination stands on its own (unless, like Golda Maier, you think there is no Palestinian nation).
      .
      At any rate, the Palestinians never asked to become part of Israel so this whole issue is somewhat tangential – what is important is that there is a population whose lands were taken over by Israel by force of arms. Israel has no right to annex this land is therefore holding it under belligerent occupation.
      .
      Finally Since you seem very interested in these questions, I would like to recommend you try reading either a general treatise on international law (there are good ones by Malcolm Shaw and Ian Brownlie), or a book on the law of occupation – Eyal Benvenisti has one, and Aeyal Gross is supposed to have one coming out sometime soon. If you prefer in Hebrew, Orna Ben-Naftali and Yuval Shani have a good book as well.

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    41. Aaron

      Noam, thank you for the recommendations. I will definitely read one of those books. The sentence I quoted from Wikipedia actually cites the book by Benvenisti.

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    42. Kolumn9

      Noam, fascinating discussion. thank you. You suggest that the Fourth Geneva Convention applies whenever territory is acquired by war and it’s population is guaranteed certain rights, yet you have also admitted that the territory has no clear sovereign so its status can best be described as disputed.
      .

      I have a question about the right of the Palestinians to self-determination. To what borders does such a right extend and under what basis? Is it primarily a question of the existence or lack thereof of competing claims? .

      On a somewhat unrelated and completely hypothetical note. Does the right of self-determination extend to the Jewish settlers in the West Bank assuming a declaration of independence within borders where they constitute a majority? The ICJ ruling on Kosovo seems to suggest that the Palestinian right to territorial integrity does not apply to internal entities/groups. Does the oh let’s say disputed nature of settlements preclude the right to self-determination of the Jewish residents of the West Bank? Obviously these are not active legal questions, but I am curious what the theoretical legal situation might be in 20 years when critical mass might be reached for such potentialities in the West Bank.
      .

      Also, about that ICJ Kosovo ruling. It seems to open up quite a few cans of worms. In the case of Kosovo the primary argument for the legality of the independence of Kosovo seems to have been its irreversibility with the other arguments being decorations. It almost appears that international law is primarily a question of power and popularity rather than any objective judicial opinion. Would you disagree?

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    43. Noam w.

      Arnon, you are welcome. I mentioned Benvenisti percisely because the Wikipedia quote was attributed to him.
      .
      Kolumn9, the disputed sovereignty over the territory has nothing to do with its occupied nature, insofar as it is beyond dispute (except for the handful of people who adhere to Levy’s interpretation) that Israel is definitely not it’s rightful sovereign.
      .
      As to the rest of your questions, I would ask that we defer them to another time.

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    44. Kolumn9

      Noam, is it thus your position that according to international law Israel has no legitimate claim whatsoever to sovereignty over the Western Wall? If so, then on what basis, and please avoid referring to the territory’s occupied nature considering that you have already admitted that the sovereignty of the area is disputed and that it has nothing to do with its occupied nature?.
      .

      That is the part I have trouble grasping. The argument usually states that the area is occupied and Israel can have no rightful sovereignty over an area that is occupied yet I fail to understand how it being occupied can have any impact or relation to the underlying dispute over its sovereignty.

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    45. Noam W.

      You are correct, Israel has no claim, under international law, over the western wall.
      .
      When I say disputed, it doesn’t mean the soveregnity is free for all open for anybody to claim the land is theirs. What it means is that it is not clear who does have sovereignty. Israel does not have sovereignty, not because of the way it took control over the area, it has no sovereignty because when the last sovereign who held it legally – the British under the UN mandate, did not relinquish sovereignty o er it to Israel. This lack of sovereignty cannot be changed by taking over the territory by force of arms.

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    46. Kolumn9

      Noam, thanks for answering my questions. Your answer suggests that the British did not relinquish sovereignty to anyone as they explicitly abandoned the mandate and presumably any associated sovereignty. The argument that Israel has no claim on the basis that the British did not relinquish sovereignty to Israel would seem to exclude all other claims as well. Or is it that this logic does not apply to the Palestinians because it only applies to other states while the Palestinians have a claim to the territory on the basis of the lack of other legitimate claims and on the basis of self-determination? I think I understand the argument for applying the Geneva Convention there and I think I understand the Palestinian claim deriving from self-determination, but I don’t understand the argument for the sanctity of the green line in being the line where Jewish claims to the land end and Palestinian ones reign. Theoretically they derive from the same basis of self-determination that provides the Palestinians with claims on the basis of the British abandonment of the Mandate and the absence of a legal transfer of sovereignty to any state. In other words, if the disputed sovereignty of the land goes back to the British Mandate, then at what point did the Jewish claims to the entirety of the British Mandate end?
      .

      Note: I realize that the question isn’t limited in its extent to the West Bank and could easily include an answer whereby all or some Israeli territory within the green line has questionable sovereignty.
      .

      Thank you in advance for answering the questions.

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    47. Noam W.

      Kolumn9, I am not sure I understand you question – but if I do – the British relinquished the mandate pursuant to the UN partition plan which awarded sovereignty east of the Green line to the Palestinians (which were immediately occupied by Jordan) and west of it to Israel (more or less).

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    48. Aaron

      One last question about the books mentioned here, and sorry for hijacking this thread into a private conversation. I’m going to buy a book on international public law now, and then later probably a book on the law of belligerent occupation. On the former, I think I’ll buy Shaw’s International Law. On the latter, I was wondering about Dinstein’s The International Law of Belligerent Occupation. Are you familiar with that one? Is it good? It has the advantage of being relatively cheap. Benvenisti’s book looks good, but costs more than $100.
       
      I’m looking for books (in English) that are relatively non-ideological, and ideally that would even consider “minority” interpretations of the law. Basically, books that both you and Edmond Levy would respect as good introductions to international public law. Would that include any of the books mentioned here? Any books at all?

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    49. While Ami Kaufman is certainly right that the Israeli system has by far enabled the, um, vaugely occupation like thing, consider American law before Brown v Board of Education; consider the racial climate of the day; consider who appointed the Justices making, shockingly now and then, a unanimous decision. I make no claim that your post Aaron Barak court will shift soon or easily; but I point out that the Citizenship Law case pivoted on one of (I think) 13 votes. And I do make the claim that each case, each Court hearing is a fight over ideas; most fights are lost, most of the time. Until they’re not. Must others give up on legal thought to satisfy the anger of those truly seeing the enforced despair in the Bank? Must I despair of law for the anger of others?
      .
      I make one other claim for your High Court in the future: things may reach a point where the High Court’s pivot may be the only way out. Will it happen? I don’t know. But I would not blot the Court from the possibility.
      .
      Simjim
      .
      who is probably gone now, no, I do not say wait patiently for 100 years. Without real Palestinian resistence there is no hope. But I do wonder what those dissenting 6 High Court Justices said. I remember the single voice of US Justice Harlan. And while that case would not have changed the Bank had it gone differently, it would have created a wedge, a new place from which to move forward.
      .
      Noam W.,
      .
      If soverignty was lost to everyone through the inaction of the British upon physical departure, so soverignty as self determination resides with the people living there, occupation is against the people living there and so exists. I am getting pretty old, and likely myopic, but this sounds weirdly like some of the arguments preceeding the American Rebellion (for the Brits sake). The people manifest is something of a natural event, arising from the socio-economic relationships, and indeed the policing occupation, that make their lives. An American originalist would then have to argue that the Israelis may not absorb the West Bank against the people manifest. And, although I abhore violence, probably because I have never been faced with it, the American instance was violent. Israel may not win, but its own hand.

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    50. Last line should have read: “Israel may not win, by its own hand.”
      .
      And yes, angry ones, I know this doesn’t change things a whit.

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