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.