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Supreme Court's latest decisions inch towards West Bank annexation

The country’s highest court supports Israel’s right to despoil the West Bank – but won’t allow its residents to marry Israelis

About two weeks ago, the Supreme Court, sitting as the High Court of Justice, rejected an appeal by the Yesh Din NGO against the activities of quarries in the West Bank. Such quarrying seems to contradict international law, which forbids the exploitation of the resources of an occupied territory. The High Court, led by outgoing President Dorit Beinisch, rejected the appeal, citing some pretty strange reasons (read the decision in full here). One was that the quarrying has been going on for some 40 years, prompting the court to wonder why the petition was filed only recently, in 2009. Which means that yes, there’s exploitation, but it’s been going for quite some time, so that supposedly makes it fine. Another reason was that the quarrying is actually helpful to the Palestinian economy – which ignored the acknowledged fact that 94 percent of quarried stone and sand are exported directly to Israel.

The court made the absurd claim that according to the Oslo Accords, Israel is allowed to continue quarrying in the territories until a final settlement is reached. It did so while conveniently ignoring the fact that the Accords had an expiration date: May 1999. Almost 13 years have passed since, no final agreement was reached and none is foreseeable. The government of Israel – whose argument was accepted by the court – actually keeps saying that no such agreement will be reached. As for the Accords themselves, a long list of senior Israeli officials, prominent among them former Prime Minister Ariel Sharon, have publicly said it is dead, it has expired, bought a farm, joined the choir invisible. Furthermore, as Yesh Din notes (Hebrew), “International law expressly says that representatives of protected persons (residents of an occupied territory) may not renounce their secured rights (article 7 of the Fourth Geneva Convention).” (Actually, this seems to be Article 8.)

Retiring HCJ president, Dorit Beinish (Photo: government press office, CC BY-NC-SA 2.0)

Retiring Supreme Court President Dorit Beinish (Photo: government press office, CC BY-NC-SA 2.0)

Absurd? Perhaps not. The High Court further said that we must consider the fact that the occupation is “prolonged” and that we cannot freeze economic activity in the occupied territory until the occupation ends. This seems to be the first time since 1967 that the High Court retreats slightly from its concept of “held territory”, which it used until now, and actually updates it in accordance with reality. Its decision changes the status of the occupation from a temporary phenomenon – as a result of its temporariness we may, temporarily, suspend the rights of the local residents, since the “final settlement” will be soon upon us, though it may tarry – to the normal state of being.

Which is somewhat revolutionary, as the whole concept of occupation, in international law, is that it should be temporary, and as short as possible. The occupation of Nazi Germany and militaristic Japan, two marauding nations which were the worse danger to humanity aside from the Soviet Union, ended seven years after it began; The Israeli occupation of the West Bank, the Gaza Strip and the Syrian Heights (which was annexed in 1981) will soon celebrate its 45th holiday. It is hard to see such a prolonged occupation, under which most of the residents of the occupied territories were born, as anything but an annexation. And it’s a good thing that the Supreme Court begins, belatedly, to recognize reality.

But wait. The High Court recently made another, related, ruling. Last week, it rejected yet another appeal against the Citizenship Law. This law, voted in during the height of suicide terrorist attacks in 2003 as a temporary measure, forbids the residents of the West Bank from becoming Israeli citizens, even if they marry Israelis. The main victims, naturally, are Israeli Palestinians, who are prevented from marrying Palestinians residing in the West Bank. Or, rather, they can marry them – but such marriages will not grant their spouses Israeli citizenship or even residency. The majority ruled that while Israeli Palestinians do enjoy the right to create a family, which they affirmed to be a basic right, that right does not have to be exercised in Israel. You don’t say. I wonder how Justice Naor, who wrote this phrase, would view a decision saying that while she certainly has a legal right, as a woman, to equality, she is politely asked to exercise it in another country. One imagines she might have some objections.

So, when it comes to the exploitation of the territories, the High Court permits it because the occupation is now “prolonged”; But when it has to decide whether Israeli Palestinians have the right to pursue happiness, it rejects it because of a temporary measure (prolonged time and time again), and says that, yes, they have rights – but the government may revoke them.

Which is to say that the occupation is eternal, as is the second-class status of Israeli Palestinians. Israel can keep pillaging the West Bank as if it has been annexed, as if it and the West Bank are one undivided territory, it may go on transferring settlers to the West Bank, and at the same time deny the right of Palestinians to move outside their designated zones. Journalist Amira Hass already noted that as far as Israel is concerned, there are four classes of Palestinians, each with its own limited rights: Israeli Palestinians, who are almost citizens but, the High Court says, should seek their rights in some other country; Palestinians residing in Jerusalem, who enjoy (rapidly vanishing) residency rights; Palestinians residing in the West Bank, who live under military law; and Gazans, the most screwed of the lot, who receive the military occupation package deal + economic siege + drone attacks + particularly careless artillery fire.

So, according to the High Court, what was once Mandatory Palestine is now inhabited by a religious group that has all the rights and by an ethnic group – which coincidentally, happens to be the indigent people – most of whose rights have been denied. So, next time someone asks you why you think Israel is an apartheid state, tell them the highest court in the land said so.

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    1. Aaron

      I was at first unsympathetic to that whole spouse law, but apparently there was a pretty big number of people who were taking advantage of it, enough to put a dent in the demographics. Given that, is the law totally a question of good versus evil? Does any state have any legitimate interest at all in deciding who can become a resident or citizen? For instance, can Japan legitimately restrict immigration to ethnic Japanese, even in cases of marriage? If so, then what’s special about this case?
      The analogy to a woman’s right to equality is a bit misguided, I think. When did anyone get the right to bring in anyone they choose from outside the country? Where specifically does this right come from? Is it in the positive law? A metaphysical right? Where?
      The post-1967 occupation has been going on for a long time, but so have the hostilities. There has been no “[t]ermination of all claims or states of belligerency and respect for and acknowledgement of the sovereignty, territorial integrity and political independence of every State in the area…,” etc. This isn’t World War 2. The war continues, so does the occupation. Whether or not it’s prudent to continue the post-1967 occupation, the fact is that the war over the 1948 occupation has not ended.

      Reply to Comment
    2. aristeides

      The question is one of equality. The law singles out Arabs for unequal treatment. Jews are certainly allowed to bring in their spouses without regard to nation of origin – as long as they’re Jewish. Arabs are denied that same right.

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    3. Lisa

      @Aaron – yes, countries have the right to regulate their immigration policies. But this has to do with regulating the rights of Israeli citizens. In the U.S., all citizens have a constitutional right to equal protection under the law. When you tell an Israeli citizen that they can marry whomever they want, but if you marry someone from the West Bank, you cannot live with them in the country in which you are a citizen, you are denying equal protection under the law to that Israeli citizen. The only way to make this a law that equally applies to all citizens as a matter of immigration policy, is to say that ANY Israeli citizen who marries ANY non-citizen cannot live with their spouse in Israel. So if an Israeli marries an American, they will have to move to the U.S., or live separately. You see, Aaron, equality for all citizens is a requirement to be a democracy. And that’s where the rubber hits the road for the claim that Israel can be both a “Jewish” state and a democracy. You can’t be a theocracy and democracy at the same time.

      Reply to Comment
    4. Michael W.

      This may fall under the principle of two states for two peoples. Israel, characterized by its Jewishness, has limited interaction (or limits its citizens’ interactions) with the West Bank, where a Jew can not live legally.

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    5. directrob

      “Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family.”
      There is no rule that says until it will “put a dent in the demographics” as that would be racist.

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    6. Isn’t this simply the latest branch of the tree of fraud that started growing with “a land without a people for a people without a land”?

      It seems to me that to the great majority of Israelis, the Palestinians are truly not people. The absurdity of the rulings described are quite in keeping with the Original Fraud.

      Accepting Zionist premises, one of the primary ones being that Palestinians have no standing, these latest rulings should not be surprising and are not illogical.

      To the rest of the world, it’s another step out on the branch of extremism, cloaked with the sobriety of legal process. The best thing to be done is to document it as you are doing so that all can see the charade.

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    7. Jan

      The more I know about Israel the more sickened I am by the country that says it is my “homeland.” Had I been born an Israeli I would have left many years ago not being able to stomach the occupation that the racism.

      Way back in the early 1950s my father who had raised money for what he had hoped would be a bi-national state was visited by Israelis who left because they could not stomach the racism endemic in the early days of the State. It has only gotten worse since the ’50s.

      Reply to Comment
    8. Well, here I lie, my ideals mortally wounded. From what little I have read, the logic of the marriage decision rests on a racial corporate existence for Israel. The incoming Chief Justice said something like “human rights should not lead to national suicide.” This national suicide is not suicide bombing. In fact, had the decision gone otherwise (one should keep in mind the vote was 6-5), I have no doubt that the Israeli security apparatus would have held up spousal residency by a year or more; and I think the Court would do nothing to accelerate the venting process. This decision is not about security from violence; it rests clearly on the logic suggested by Aaron, above, that such marriages represent a “demographic threat.” The Court is overtly shifting to corporate protection of Jews (not identical to the protection of citizen Jews) both within Israel and the occupied territories.
      In doing so, the Court abrogates the Israeli Declaration of Independence, which provides for full equality in social and political rights for citizens. This would cover, as Lisa, above, says, a uniform right of entry (at identical threshold) for all those marrying an Israeli citizen, irrespective of race. And those on the High Court know this.
      Which is the rather weak hidden hope. There will be contention over this decision on the Court. A single turned vote would have kept the ideal of the Declaration alive while letting the security apparatus dealy entry at its will. The Court’s right has declared war–and it almost lost its testing ground. If you give up on the pricipled rule of law you hand over yet another victory. It took 60 + years to overturn US Supreme Court sanction of Jim Crow segregation, another 25 years to remove it as applied; some think to this day the ideal remains unfulfilled.
      Not all Justices sat on this decision. Watch the Knesset. If it continues its path toward de facto absolute soverignty you may yet see rebellion from the High Court. The importance of words is that they outlive us all. So I will keep fighting on my present death bed.

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    9. Aaron

      Again, if citizens had a right to bring in one (or reportedly, sometimes more than one!) non-resident of their choice, then yes, I’d agree that it denies rights to some citizens. But again, where is this right? It is not implied by the right to marry and live with someone.
      Just to clarify, I think it’s obvious that it’s good, on the face of it, for people to be able to live wherever they want. A state can’t prevent them from doing that without a good reason. But the State of Israel, like most states, has a good reason. So as usual, you’ve got two conflicting goods that you have to choose between. That’s what I was trying to say, that it’s a choice between two goods, not between good and evil.

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    10. Aaron

      Greg, you’ve discovered that Israel’s self-definition as a Jewish state implies a concern with demographics and a corporate view of Jews? Well, yes. Zionism is a form of racism, in the current meaning of the word “racism.” There is no such thing as a non-“racist” Zionism. So if you can’t swallow it, spit it out.

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    11. Hostage

      @ Aaron regarding the statement “There has been no “[t]ermination of all claims or states of belligerency and respect for and acknowledgement of the sovereignty, territorial integrity and political independence of every State in the area…,” etc.

      That actually requires Israel to drop its belligerent claim of a right to – wait for it – place another people and their territory under belligerent military occupation. The Report of the Sharm el-Sheikh Fact-Finding Committee (aka “The Mitchell Report”) said the Israeli withdrawal from Arab territory acquired by force is a prerequisite to the subsequent termination of all states of belligerency:
      “During the June War of 1967, Israeli armed forces occupied the West Bank, including East Jerusalem, and the Gaza Strip, as well as the Syrian Golan Heights and the Egyptian Sinai Peninsula. UN Security Council Resolution 242, passed in 1968, restated the inadmissibility of the acquisition of territory by war and applied this international principle specifically to the Israeli occupation of Arab territory. Since then, all serious efforts to end the Israeli-Arab conflict have depended on implementation of this resolution requiring the Israeli withdrawal from Arab territory acquired by force and the subsequent termination of all states of belligerency.
      Security Council Resolution 1322, consideration of which forms part of this Committee’s mandate, makes explicit reference to several other Security Council resolutions, all of which emphasize the de jure applicability of the Fourth Geneva Convention (“Convention”) to the Occupied Palestinian Territories, the illegality of Israel’s unilateral annexation of Jerusalem and of the steps Israel has taken to change the city’s character. The international community, including the five permanent members of the UN Security Council, has repeatedly affirmed that the Convention applies de jure to the Occupied Palestinian Territories and the International Court of Justice has noted that the Geneva Conventions are customary international law as well. Israel itself originally recognised the Convention’s de jure applicability but subsequently reversed itself.
      The Committee’s recommendations are in line with the Convention, and appear directly linked to the Convention’s application. Israel’s settlement policy, for example, is “illegal under international law” precisely because of the application of Article 49 of the Convention which prohibits the transfer of an Occupying Power’s civilian population into the territory it occupies.” …
      Israel’s emphasis on security considerations alone, while taken very seriously by the Palestinians, cannot dictate the course of peace talks or attempts to end the current crisis. The PNA has repeatedly expressed its desire to resume security cooperation with Israel within the context of those elements necessary to make such cooperation sustainable. The Committee has correctly identified that security cooperation is not sustainable without meaningful political negotiations and that such negotiations cannot exist while Israel continues to colonise the territory from which it is ostensibly negotiating a withdrawal.”

      Reply to Comment
    12. Aaron, the issue is one of equal protection as guaranteed by your Declaration of Independence. That document forbids descrimination by race amongst other things. Thus race cannot be used as a category of exclusion baring Israeli citizens from importing their spouce. You can deny all such importations, but not exclude one racial category.
      These words are in your founding document. If you cannot abide by them, then spit your founding out.
      As to one good weighed by another, by your logic you might forbid Israeli Arab citizens from having more than two children because of the demographic danger to the Jewish State which, apparently, they at that point don’t really belong to. As the minority 5 Jutices opposing this decision noted, a demographic threat based on importing one’s spouce is hysterical. The Jewish character of the State is enshrined in the right to free ingress of Jews, which does not apply to other races (so an Arab would have had to be the spouce of an Israeli citizen for entry, but Jews need no such condition at all). The logic you suggest could as well be applied to the explusion of Arab Israeli citizens, which would also contravene the direct decision of your founders in the Declaration. True Israeli patriotism is not with you.

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    13. Hostage

      Re:Journalist Amira Hass already noted that as far as Israel is concerned, there are four classes of Palestinians

      Well that should also include the Palestinian citizen/refugees and their descendants who have no right to leave and return to their country of origin or nationality, while Jews living anywhere else have boundless discretion to enter the country and take up residence.

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    14. Aaron

      There’s plenty of ethnic discrimination going on behind this law, but it’s not against the Israeli citizen, it’s against the non-citizen spouse. Obviously, that harms the citizen too, but the intent is only to keep out the non-citizen. It’s an example of what the Catholics call “double effect”: the citizen is affected as a consequence, but that was not the intent or motivation. You can say that the citizen doesn’t care whether she was the intentional or unintentional victim, but I think the question of intended and “double” effects makes a difference morally and juridically.

      Reply to Comment
    15. Aaron

      On a couple side issues: Don’t appeals to the Geneva Conventions support my point, that this should be viewed as mostly a “normal” occupation as covered by the Conventions, abnormal mainly in its length? I mean, assuming that this is an occupation in the legal sense as well as the common usage of the word “occupation.” The question of settlements, as opposed to the occupation itself, seems irrelevant to the topics in the article here.
      I had second thoughts about my “conflicting goods” point right after I pressed the Submit button. Practically any evil act is an attempt to achieve *some* good, no matter how disordered. What I was trying to get at is that both sides are reasonable here. It’s not good versus evil.

      Reply to Comment
    16. Once citizenship is granted to non-Jews in a substantial way, as was done with its Arab residents, the logic of demographic conflict is forever curtailed–unless that citizenship is revoked. The past Knesset decision to grant citizenship trumps corporate Jewish Israel, by its own hand. The harm is indeed directly against the citizen petitioning the State for entry of his/her spouce. Certainly no one who honors Judaism can deny that the making of a family is a fundamental form of human happiness. The citizen is not collaeral damage, but rather the intended, direct hit.
      It doesn’t really matter, as I just post on this site, but I want to make my position on Zionism and Israel clear. Israel is a State within the United Nations. It has a founding document created with the UN, and that document is a meta-constitution, framing certain parameters of a full constitution; this meta-constitution is, as far as I know, unique in constitutional thought, a creative product of Israel at its inception. Israel has power; it is as real as the sun. Zionism is irrelevant for me, for the Declaration of Independence enshrines free ingress of all Jews (save for issues of criminality, I guess), and that can never be taken away. What happens within Israel, after ingress, is similary framed by the Declaration. Its promise of full equality in social and political rights nullifies any State action on direct demographic competition among citizens as envisioned by the majority of the High Court panel. Crucially, the Declaration forbids use of race to skew that equality. I firmly believe that this High Court decision will some day be declared unconstitutional; and I assert yet one more time that Israel is not totally bereft of a written consitution.
      The occupation is analytically distinct, if not so in life. If you cannot advance toward the promise of equality among your citizens, I think the occupation permanent.
      “The alien living with you must be treated as one of your native-born. Love him as yourself, for you were aliens in Egypt. I am the LORD your God.” Leviticus 19:34 (with other verses of similar content elsewhere) The totality of the Torah is inconsistent. Choose which parts to live by.
      This fight is not between Arabs and Jews. It is between Jews and Jews; Arabs and Arabs. And this is the view I will defend in my remaining time.

      Reply to Comment
    17. Aaron

      Greg, there’s a lot we agree on. I agree that the Declaration of Independence is an important part of Israel’s constitution. I agree that if the intent of the law were to restrict the citizen’s actions based on the citizen’s ethnicity, it would be unconstitutional. We both apparently agree that Israel has a legitimate interest in restricting non-Jewish immigration (questions of marriage aside).
      As is often the case, the apparent disagreement over morality actually involves a disagreement over facts. You say the citizen is “the intended, direct hit.” I take the legislators’ and judges’ descriptions of the law’s purpose at face value when they say otherwise. Partly, that’s because I support the law because of its overt justification, not because of some covert intent against Arab citizens, so I can believe that others are motivated by that overt reason as well. Though maybe if you believed that the citizen *was* “collateral damage,” like the wife of a criminal sentenced to prison, you would still oppose the law. So our disagreement probably isn’t *all* about facts. In any case, I do respect the position you’re arguing.

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    18. directrob

      “… disagreement over morality actually involves a disagreement over facts …”
      This is clearly case of a different moral compass, not a case of different facts.

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    19. aristeides

      Aaron, the logic of your position requires you to accept racism as a good. Don’t you find this rather perverse?

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    20. Aaron,
      This is probably a dead thread, but I chanced back so will reply:
      It’s not that I worry about restricting non-Jewish immigration; it’s that the right of Jewish ingress is unalterable via the Declaration. Whatever I think of, say, the huge Russian influx is irrelevant. The right of ingress is foundational.
      I frame the actual question at hand as the right to make a family. Importing a spouce is not the same as marrying a criminal. A wife may have her life shattered because her husband is convicted of a crime; but they are both autonomous agents under the criminal code. Her husband has forfited his right to a family of the moment through his criminal act. If the sole reason for forbiding a spouce to enter Israel is her/his ethnicity, the Declaration forbids such; race and ethnicity may not be used to deny equal application of law. So that which ensures Jewish ingress stops the hand of the State in this matter, and I expect this ruling to be overturned way down later.
      On an equally important note, I believe your Declaration your best refuge to increasingly unstable legal and political acts within Israel. I think you have a sense that the Knesset is unstable. So I, not a Jew, advocate the Declaration as the obvious place where people of differing views can stand, together, at least of a while.

      Reply to Comment
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