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Half a century of occupation threatens our international legal order

Israel’s policy of cherry-picking legal obligations vis-a-vis Palestinians undermines the credibility of our legal order established in the aftermath of World War II. This could have dangerous implications for the rule of law beyond the region.

By Gerard Horton

The Ofer military prison in the snow, December 15, 2013. (Photo by Oren Ziv/Activestills.org)

The Ofer military prison in the snow, December 15, 2013. (Photo by Oren Ziv/Activestills.org)

On June 7, 50 years ago, Israeli military forces occupied the West Bank and imposed martial law over the Palestinian population living in the territory. At the time, this measure was legal under the Fourth Geneva Convention (the Convention) which permits the use of martial law under specific circumstances and on a temporary basis. To this day, the military authorities continue to rely on the Convention as the jurisdictional basis and justification for prosecuting Palestinian civilians under military law.

Once martial law was established, Major General Haim Herzog, the military commander in the West Bank at the time, started issuing military orders regulating the lives of Palestinians living in the territory. Fifty years on there are almost 1,800 orders, many of which were initially only available in Hebrew. The military orders cover a wide range of subjects including murder, weapon possession, membership of banned organizations, throwing objects including stones, participating in a political assembly, vigil or procession of more than 10 persons, entering Israel without a permit, traffic control orders, land usage, zoning and construction.

At the same time as martial law was imposed the military authorities also established military courts to prosecute any infractions. As with the imposition of martial law, the legal basis for establishing the military courts is to be found in the Convention — a position also acknowledged by the military authorities to this day. Fifty years on, estimates suggest that between 775,000-850,000 Palestinians have been detained by the military authorities, including up to 45,000 children (12-17 years inclusive). Available evidence suggests that about half this number have been charged and prosecuted in the military courts, although it is difficult to obtain reliable data covering the full 50 years.

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Since its inception, the military detention system has been dogged by allegations of systematic abuse and denial of legal rights guaranteed under the applicable law. Concerns have been raised by UN General-Secretaries, UN agencies, the U.S. State Department, members of the U.S. Congress, the EU, governments of the U.K., Norway, the Netherlands and Australia, independent lawyer groups, as well as Palestinian and Israeli organizations. In 2013, UNICEF published a report which concluded that “the ill-treatment of children who come in contact with the military detention system appears to be widespread, systematic and institutionalized.” While some changes have been implemented, the level of complaint remains largely unchanged.

In contrast with Israel’s civilian legal system, the military authorities provide no legal aid services to the accused in the military courts. Defendants in the military courts are largely dependent on lawyers provided by the Palestinian Authority, non-governmental organizations or private lawyers. These legal services are, for the most part, funded by the defendant’s family, or by European and U.S. donors and taxpayers, thereby relieving the Israeli public of this expense and helping to ensure the financial sustainability of the system. In a further measure to ensure sustainability, every Palestinian convicted in the military courts is fined, which in 2011 contributed over $3.6 million to the military’s balance sheet.

Once convicted and imprisoned, the overwhelming majority of Palestinians serve their sentences in prisons located inside Israel, in breach of article 76 of the Convention which mandates that military courts and prisons must be located in occupied territory. This requirement is considered sufficiently important that its breach is classified as a war crime under international law; be that as it may, the Israeli Prison Service reports that 84 percent of Palestinian prisoners continue to serve their sentences outside the West Bank.

Palestinians take part in a protest in support of Palestinian prisoners on hunger strike in Israeli jails, in the West Bank city of Bethlehem, May 4, 2017. (Flash90)

Palestinians take part in a protest in support of Palestinian prisoners on hunger strike in Israeli jails, in the West Bank city of Bethlehem, May 4, 2017. (Flash90)

Since the first Israeli settlement was constructed in the West Bank in September 1967, Israel has sought to justify the policy on the grounds that the Convention has no de jure application due to a lack of clear sovereignty over the territory prior to 1967. While this attempt to justify settlement construction has been universally rejected, it also contradicts the arguments used by the military to justify imposing martial law and prosecuting Palestinian civilians in military courts. The danger is that this policy of cherry-picking legal obligations also undermines the credibility of the international legal order established in the aftermath of the Second World War — with potentially dangerous implications for the rule of law extending well beyond the region.

While there is no authoritative legal statement as to whether the occupation is still legal after 50 years, its duration, the construction of settlements and the acquisition of natural resources by Israel all suggest that the situation has, at some point, morphed into a de facto annexation in violation of Article 2 of the UN Charter with far reaching and unpredictable consequences.

Gerard Horton is a lawyer and co-founder of Military Court Watch. Gerard has worked on the issue of children detained by the Israeli military and prosecuted in military courts for the past eight years prior to which he practiced as a barrister at the Sydney Bar specializing in commercial and criminal cases.

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    1. Firentis

      Fifty years of occupation threatens international legal order? Fifty years. Well that sounds really urgent.

      More nonsense from the European troll army.

      When the Europeans start applying pressure on the Palestinians to actually accept living in peace next to Israel let me know. Until then all of their numerous proxy organizations on the ground are just producing anti-Israeli propaganda and I will treat it accordingly.

      Reply to Comment
      • Bruce Gould

        @Firentis: “Finally, for Israel, the most pervasive myth is that there is no Palestinian partner for peace. Palestinians are irredeemably rejectionist, runs this argument; they will not give up on their impossible goals and have never made real compromises, in spite of every generous Israeli proposal. The truth is that the history of the Palestinian national movement is one long series of military defeats and ideological concessions. Each of those slowly moved the Palestine Liberation Organization from rejection of any Israeli presence to acceptance and recognition of Israel on the pre-1967 lines, compromising 78 percent of historic Palestine. For years, the international community bullied and cajoled the P.L.O. to accept a Palestinian state in the West Bank and Gaza, the remaining 22 percent….When the P.L.O. finally did so, in 1988, the rug was pulled out from under it. Palestinians woke up to find that 22 percent of the homeland had been redefined as their new maximalist demand. Shimon Peres was among the few Israeli leaders to recognize the magnitude of the Palestinians’ concession. He called it Israel’s “greatest achievement.”


        Reply to Comment
        • Firentis

          When the Palestinian leadership accepts the principle of two states for two peoples I will happily join the Israeli center left. Until then all the supposed Palestinian concessions are just ploys by Palestinian leaders designed to fool people in the West while continuing to insist to their own people that they are still committed to the vision of eliminating the Jewish state.

          The only thing the Palestinians concede at the moment is that they are too weak to destroy Israel, not that they should permanently accept living in peace next to Israel.

          Reply to Comment
          • Ben

            Firentis, this is the sheerest empty name calling and propaganda you dish out. Time after time. You address absolutely not a single thing Gerard Horton or Bruce Gould writes. Not a single thing. “Two states for two peoples” is the latest empty, hyper-nationalist, fake security concern, nothing-burger obstacle making, simply a subsidiary clause of the already empty “recognize we are the nation state of the Jews and affirm our narrative and deny yours and say uncle” obstacle concocted by Netanyahu. Dressed up Feiglinism too. In the fascist evolutionary political branch. As Betz Uber says, “When the Europeans start applying pressure on the Israelis to actually accept living in peace next to Palestine let me know.”

            Reply to Comment
          • Firentis

            There is nothing to address in the article. It is written to function as propaganda by pro-Palestinian propagandists funded by Europeans. There is a military occupation that will continue as long as the Palestinians continue to insist that their national narrative is that Israel must be destroyed. There is Palestinian resistance and acts of terrorism that will be dealt with in the best way possible to ensure the safety and security of the citizens and soldiers of the State of Israel. The Palestinians consistently use “children” under the age of 18 in their war against Israel. It is hypocritical that their supporters then try to use the same children that have been arrested for violent behavior against Israel as propaganda against Israel. If they want there to no longer be arrested children the address for that is the Palestinian Authority and their parents that fill their heads with the belief that they should go out and kill Jews.

            Until the Palestinians begin to want peace this will continue. Peace consists of them accepting that they will end their war against the Jewish state instead of teaching their children that Israel will be destroyed if they wait long enough. They are not willing to do that. So this continues and it is entirely their fault and the fault of Western useful idiots that encourage them.

            And on top of that there is the incredibly stupid and absurd angle that this “threatens our international legal order”. This is just garbage that was tacked onto propaganda to make it sound more globally relevant.

            Reply to Comment
          • Ben

            The sheerest knee-jerk propaganda, and yes, cult like–see no evil, hear no evil. Chock a block, a thick soup: “nothing to address… written to function as propaganda by pro-Palestinian propagandists funded by Europeans…the Palestinians continue to insist that their national narrative is that Israel must be destroyed…acts of terrorism… safety and security.. the citizens and soldiers of the State of Israel…The Palestinians consistently use “children”…violent behavior…fill their heads with the belief that they should go out and kill Jews….”
            It all actually brings to mind Gil Gertel’s article:
            We have developed a large arsenal of justifications and explanations that we love to repeat to ourselves…None of these arguments justify 50 years of military rule over millions of Palestinians bereft of human rights. But we have come up with a strategy: we skip from argument to argument, again and again, until we confuse and tire out our interlocutors. When we argue with ourselves, we are always the victors. We are always right….”

            Reply to Comment
          • Firentis

            Propaganda is propaganda. The supposed “truth” presented in most of the articles here is a twisted version of reality created precisely with the purpose of achieving political objectives. Every single NGO that declares political objectives is a propaganda organization whose goal is to lie and cheat people into believing whatever version of events contributes to their political objectives. In Israel there are hundreds of NGOs sponsored primarily by the European governments whose entire reason for existence is to promote an anti-Israeli, pro-Palestinian narrative of the past, present and future. If you take these people seriously without looking at them as just gears in a propaganda machine and treating the garbage they produce accordingly then you are a dolt.

            Reply to Comment
    2. i_like_ike52

      “The rule of law”? “International order”? Please stop with the hypocrisy! There is no such thing. Is Assad’s mass terror in Syria legal? What about Saddam Hussein’s reign of terror and murder in Iraq? “Progressives” particularly in France and Germany, but not only, fell all over themselves to support those regimes. For that matter, what did the “progressive” European and American world do about the Khmer Rouge genocide in Cambodia? What about Putin’s invasion of Crimea and fomenting civil war in eastern Ukraine? What about the Turkish occupation of northern Cyprus? What about India’s unilateral annexation of Kashmir?
      What about Arafat’s terror war against Israel? Everyone pretended that he had nothing about it. All lies. So please get off your high horse.

      Reply to Comment
      • Joshua Fisher

        Wat about, what about? whataboutism is the only defense line the whining and weeping zionist snowflakes got left when you call them their a criminal record. Your crimes don’t become lesser crimes if your neigbour does it too.

        Reply to Comment
        • Lewis from Afula

          Joshua Fisher: The Land belongs to us. The Jordanians illegally squatting on our land MUSt get out. The entire lot of them need to be repatriated ASAP. End of problem.

          Reply to Comment
        • Itshak Gordin Halevy

          Which crime? Protect ourselves and our Jewish heritage? What is your problem Mr. Fisher?

          Reply to Comment
          • su

            Using your “Jewish heritage” logic consistently would mean that Israel should give up the coast between Ashdod and Ashkelon, which was never a part of the ancient Israelite kingdoms. The numerous archaeological expeditions carried out over decades in Ashkelon – one of five ancient Philistine cities that today encompasses what was, until 1948, the Palestinian village of al-Majdal – have shown that it was never conquered by the ancient Israelites. And even if one assumes that there was a conquest, the occupation of an area for a few years does not mean that it represented part of the a “formative territory.” Otherwise, the many Philistine raids and occupations of Israelite towns as far east as the Jordan Valley would also make these areas “less” Israelite.

            Reply to Comment