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Court allows lawless occupation due to “special circumstances”

In Israel, exceptions to the law justify the occupation, and protective measures do not protect those to whom the measures are applied. The state of exception is slowly but surely crossing the green line.

By Noam Wiener

Twice in the last few days, “special circumstances” have made news in Israel.

First, Prime Minister Benjamin Netanyahu suggested setting aside regular criminal procedure and trying settlers who are suspected of terrorizing the Palestinian population in special courts. Second, the Israeli Supreme Court used the special nature of the Israeli occupation as a justification in its decision on quarrying rights in the West Bank, departing from the well-established law of occupation on exploitation of natural resources.

The Supreme Court’s decision dealt with quarrying permits given to Israeli corporations who quarry materials in the West Bank to be sold in Israel, effectively legitimizing that these companies take precious resources from the occupied territory, for their own gain, into Israel.

As a child growing up near Tel Aviv, the only significance of the word “special” to me  was additional whipped cream and a cherry on top of my soft-serve ice-cream at the Montana ice cream parlor. As I grew up, however, and studied law, the words special, extraordinary, and exceptional started taking on a different meaning. No longer denoting the cherry on top, special conditions and extraordinary circumstances beget a much more sinister meaning when applied to the politics of the law.

Whenever I hear judges or law enforcement bureaucrats (police officers, prosecutors, members of the General Security Services, etc.) talk about special circumstances, the hairs on the back of my neck stand, because I know they are about to circumvent the law. And almost without fail, when a law enforcement official is about to circumvent the law, that circumvention enables greater repression rather than greater freedom. As some philosophers have noted (some in awe, others with harsh criticism), creating an exception to the rule is the ultimate power of the sovereign state.

In a state governed by the rule of law, the law is supposed to bind everybody in all situations, citizen and government alike. Limitations on sovereign power and authority are supposed to be, in a law-governed state, set in stone (literally – the Ten Commandments were the original rule of law for the Jewish people). These limitations restrict the ability of the state and its actors to violate individual liberties, and they determine the boundaries of freedoms vis-à-vis the individuals amongst themselves. Consequently, when a sovereign deviates from these boundaries, it deviates from the rule of law. Often “special circumstances” are used to permit sovereigns to declare that the rules no longer apply, and to decide that freedoms may be circumscribed.

The history of “special circumstances” is long and storied. The notorious “Star Chamber” of medieval and renaissance England was allowed to circumvent due process in “special” cases. Japanese Americans were put in internment camps during the Second World War due to the necessities of the “critical hour”. Using the power of the state, freed prisoners were placed in “schutzhaft” in Germany in the 1930s and 40s. Almost sixty years later, in the United States, the administration felt that the extraordinary conditions of the “war on terror” justifies extraordinary renditions and special military tribunals were constituted to try terror suspects circumventing due legal process.

Netanyahu’s proclamation about trying settlers outside the regular system and the Israeli Supreme Court decision about Palestinian quarries are therefore not new phenomena in human history. The attempt to justify the abuse of power because special considerations arise is just another sign of our decline into lawlessness in Israel.

The West Bank has always been on the margins  of the rule of law, a sort of nether region where the powers of the army and the police vis-à-vis Palestinians and Israelis alike is not entirely clear. Like all other ills related to abuses of power, the lawlessness of the West Bank is not containable, and the language of special and extraordinary circumstances is seeping into the “clean” language of the Supreme Court, and is turned against the settlers themselves.

Last week, when Netanyahu decided that settlers suspected of terrorism will be tried by military tribunals, he attempted to give up on regular legal procedures and rules of evidence and circumvent the legal process to achieve easy results. I have no sympathy for terrorists of any religion or race. But if we claim moral superiority over terrorists, that claim should be that for law abiding people, the ends do not justify the means. In criminal law, that statement translates into due process of law and observance of the rules of evidence. This means that there should be no circumvention of the right to be represented, no rounding corners with regard to torture, and no ability to accept evidence that would be thrown out in a regularly constituted court of law. Subjecting the settlers to extraordinary tribunals, thereby circumventing the rule of law, is absolutely the wrong way to go about solving the problems in the West Bank. It is wrong when applied to Palestinians, and just as wrong when applied to Israelis.

Regarding the Supreme Court opinion about the West Bank quarries, at the core of the petition is the basic principle of occupation. In this principle, an occupation is a sort of a trust, a situation in which the occupying country holds on to the occupied territory for the benefit of its inhabitants until the inter-state conflict that created the occupation is resolved.

But in its opinion, the Court states that due to the long and special nature of the Israeli occupation, the principle that occupation is a trusteeship can be set aside. With a swift stroke, the Israeli Supreme Court began unraveling the yarn it has spun for the past forty five years according to which there is rule of law in the West Bank. From now on, the rule of law can be set aside because of the special nature of the occupation. I noted above how exceptions to the rule of law are a raw manifestation of sovereign power – but the Supreme Court’s ruling did not just apply that power of exception, it defined it. In other words, the Supreme Court determined that a state of exception, in which special powers can be used and the normal rule of law no longer applies, perpetually exists in the West Bank due to the special nature of the occupation. The Supreme Court effectively determined that this state of exception is boundless and all-encompassing in regards to the occupied territories.

In the world of law and politics, “specials” do not connote shopping discounts, “extraordinary” does not connote outstanding, and protective measures do not really protect those to whom the measures are applied. The state of exception is slowly but surely crossing the green line. Israelis who thought they had no reason to be concerned about what was happening “over there”, are starting to find out that they have good reason to be worried.

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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    1. Mikesailor

      So, what should be done? Should the Israeli Court uphold international law, or should they be a kangaroo court bowing to the domestic polity? Would the granting of Palestinian membership at the UN (even through the General Assembly as an ‘observer state’) and the subsequent application of the Palestinians to the ICC be contemplated where the Israeli court has become unable, or unwilling, to uphold the ‘rule of law’? I do not worry about the ‘settlers’ because they are politically protected within Israel and all cases against them are dropped for ‘insufficient evidence’ or non-prosecution. And, I dare say, that any ‘settler’ hauled before a military tribunal will likewise not suffer the same fate as a Palestinian brought before the same tribunal (97% conviction rate for Palestinians, I highly doubt that same rate for Israeli Jews). Instead, I wonder about the truly defenceless living under a military occupation which has now been normalized as a ‘special circumstance’, and the meaninglessness of Israeli legal pronouncements by the ‘Supreme Court’ which has shown it doesn’t deserve that or any ‘legal’ appellation. The Israeli Bar is truly a cowardly organization.

      Reply to Comment
    2. Aaron

      If someone could point out the specific paragraph(s) of the decision that give(s) the occupation exceptional status, I’d be grateful. I’m interested in reading it (if I’ll be able to understand the Hebrew legalese).
      I don’t think I understood the whole argument of this article. Is it against sovereignty and in favor of the rule of law, or is it only against “fraudulent” sovereignty, a wrongful declaration of the exception? If the former, then that seems just to be ignoring one part of the whole dilemma: that sometimes sovereign decisions are necessary protect the normal order. Think of Carl Schmitt imploring Reichspraesident Hindenburg to apply his “sovereign” power under Article 48, to declare an exception and outlaw the Nazi and Communist parties.
      I think Walter Benjamin’s thesis seems even more apropos than Schmitt or Agamben. Of course you know it, but for those who haven’t read it: “The tradition of the oppressed teaches us that the ‘state of emergency’ in which we live is not the exception but the rule. We must attain to a conception of history that is in keeping with this insight. Then we shall clearly realize that it is our task to bring about a real state of emergency, and this will improve our situation in the struggle against Fascism. One reason why Fascism has a chance is that in the name of progress its opponents treat it as a historical norm. The current amazement that the things we are experiencing are ‘still’ possible in the twentieth century is not philosophical. This amazement is not the beginning of knowledge – unless it is the knowledge that the view of history which gives rise to it is untenable.”

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    3. Noam W

      Aaron – parts 8-10 and 12-13 of the decision.

      The argument is that modern sovereigns have a dangerous power potential – they can, if left unchecked – carve out spaces in the rule of law – where they can revert back to being sovereigns in a pre-French revolution sense – omnipotent arbiters with the ability to act as judge jury and executioner. And that there are worrying signs that this process is taking place now in Israel.

      Schmitt imploring Hindenburg (I am not familiar with this bit of history – so I will take you word for it) to outlaw the Nazi’s is not an argument for emergency decrees. The demise of the Weimar republic is the text book example for why emergency powers are so dangerous.

      I am not trying to invoke a Benjamin type re-understanding of the entire cosmos we live in. I am much more modest and only wish to draw attention to the dangerous path Israeli democracy is heading in. It is a path that some states have managed to bounce back from (the US had struggled with this problem right after the revolution with the Alien and Sedition Acts, with the attempt to limit Habeas Corpus during the Civil War and with the other examples listed in the post itself), Germany’s democracy was not so robust.

      Where we (Israelis) land, depends greatly on our awareness and on our ability to muster sufficient democratic fortitude.

      Reply to Comment
    4. Aaron

      Thanks, I’ll read those parts of the decision.
      Schmitt made the case for banning anti-parliamentary parties in Legality and Legitimacy, written in 1932. While the Nazis later ruled (legally) by a perpetual state of exception, a declaration of exception by Hindenburg, as Schmitt and others called for, could have prevented them from coming to power in the first place. Parliamentarism was clearly not working at the time.
      I think Schmitt discussed Lincoln’s emergency decrees in The Dictator, which I haven’t read.

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    5. Deborah

      Very interesting article. This unfortunately is the post 9/11 world where the Israeli and US government work hand and hand to invoke all kinds of “special circumstances” to justify extra judicial behavior on the part of the executive branch of their respective governments.

      Reply to Comment