Independent Jewish Voices

Independent Jewish Voices Forty Years on: Israel, the Occupied Territories and International Law

How often do we spout terms like “human rights violations” or “Geneva Accords”, “military necessity”, “obligations in international law” or “occupied territories”, but never quite know what we mean?

On June 28 the IJV engaged the help of three legal luminaries to put flesh on the bones of these concepts. Without a wig in sight, the trio – Dr Susan Marks, Sir Geoffrey Bindman and Sir Nigel Rodley – may have raised more questions than they answered. Yet they certainly left audience members feeling much better informed than when they first entered the SOAS’s Brunei Gallery lecture theatre!

The meeting, as chair Tony Klug explained, was the first in a series aimed at focusing on principles of the IJV foundational document. In this case the challenge was to tease out the complexities entailed in IJV principle 3: compliance with international law.

Ably laying out the groundwork for the night’s proceedings, Dr Marks, Professor of Public International Law at King’s College, London, began by explaining the two broad areas of law that apply to Israel and the territories.

First comes international law concerning treaties and customary law between states. Like Britain, Israel accepts a “hybrid” approach, whereby only some of this law automatically becomes part of domestic legislation.

Second is international humanitarian law, essentially covered by the Hague Regulations (1907), the Fourth Geneva Protocol (1947) and the first addition to the Geneva Protocol (1977). Of these three edicts, explained Dr Marks in her crash course in jurisprudence, Israel is party only to the second. It further claims that the 1947 convention does not apply in the territories; even so, it says that it “voluntarily” applies the understanding, on humanitarian grounds.

So, given these parameters, how does Israel do? Not brilliantly, argued Dr Marks, quoting the testimony of the Red Cross and the UN Security Council. For instance, international law forbids “forced deportation” of populations, including transfer of the occupying power’s population into occupied territories. Israel has claimed that its settler movement is genuinely “voluntary”, but this line of argument has failed to convince external bodies. Likewise Israel’s treatment of “protected persons” – viz. Palestinian citizens of the OT – falls foul of international opinion on matters of house demolitions and the wall/ security barrier.

Overall, Israel disputes the idea of applying human rights law to the OT, claiming that humanitarian law only governs one’s own citizens. Further, Israel has argued that such laws only apply during peacetime; but given Israel’s emergency regulations – in place since 1948 – a plea of “legitimate self-defence” can and should override normal strictures on freedom of movement (says Jerusalem). Thus while the UN has ruled (in a non-binding verdict) that the wall is “inconsistent with the right to self-determination” and flouts human rights norms (regarding access to water, schools, etc.) Israel counters with the security argument – in much the same way as the USA and UK argue regarding special measures taken in the “war on terror”.

But can there be such a neat “trade-off” between freedom and security? Not really, argues Marks, quoting Ronald Dworkin and John Dugard. For one thing, Israel treats differently the security needs of two peoples – Israelis and Palestinians. Thus it discriminates by denying an identity between the two groups. And this approach “assumes precisely what needs to be demarcated”.

Israel’s attitude further ignores the longer term effects of the route of the wall on stoking future violence. Measures that could be deemed as “collective punishment” only add to this negative effect. In sum, house demolitions, arbitrary detentions, assassinations and un-negotiated wall-building actually could be said to undermine the much-quoted security argument.

Finally, she argues, there is the generic problem of human rights laws altogether: they focus well enough on particular problems, but tend to ignore larger questions of context. Hence the wall and settlements are all treated as “given facts”; denials of human rights turn into mere “errors to be corrected”.

Law itself, she warns, is wrongly used to legitimise bad systems. Israel is not unique in this respect; much of the machinery of international law is still in its infancy. Yet the example of the OT throws into sharp relief the problem.

Sir Geoffrey Bindman followed with an address that highlighted a theme to which Marks alluded. Namely, the paradox of an Israel that embeds the high ideals of equality of treatment in its admirable declaration of independence; versus political practices which in reality see successive governments “weasel out” of their stated legal obligations.

Turning to the acquisition of the OT in the first place, Bindman noted that international law does accept “temporary occupation” after war – but a 40-year duration is hardly temporary. Secondly, occupiers are legally obliged to interfere as little as possible with pre-existing populations – yet Israeli courts have vacillated, while Israeli governments have more directly shunned their obligations and responsibilities.

Adding to Marks’ comments on settlers, Bindman noted that the stricture on “population transfer” has also been apparently flouted in the case of the 9,000 Palestinians now held in Israeli prisons.

Again, settlers in the OT clearly enjoy rights that locals do not. Is this acceptable in international law? Evidently not, he argued, quoting Hebrew University professor Kretzmer. Indeed, settlements appear to be hardly neutral entities – rather they seem like deliberate instruments to predetermine the outcome of peace talks. Bindman added that expropriation of land and flattening of homes smacked of “collective punishment” – something expressly forbidden by international law.

Had the wall been built along the 1967 green line, he stated, it may have had some justification on grounds of "legitimate self-defence”. Instead, its meandering route suggested another un-stated cause, namely “gobbling up land”. As with the 2006 destruction of power stations in Gaza, arguments based on self-defence crumble when retaliatory or protective actions appear “grossly disproportionate”, or are openly and deliberately intimidating.

As to who has real authority, Bindman claimed that Israel’s military habitually countermands the Palestinian Authority’s ultimately limited jurisdiction. Checkpoints, restricted roads, and so on, in his view constituted orders whose “range and pettiness are quite extraordinary”.

To its credit, he said, Israel’s Supreme Court has on occasion intervened. Yet all too often, he added, quoting Israeli jurists, “security arguments win the day”.

In conclusion, Sir Geoffrey expressed disappointment that an otherwise energetic and enlightened Israeli public, including its legal fraternity, had not acted to stop “wreaking damage” on both Palestinians. Nor were they the only victims, he opined: Israel’s own soldiers, by pursuing questionable orders, end up being brutalised themselves.

Israel purports to uphold a “distinguished” rule of law, he said, a claim that carries at least some weight. But, he added in a somewhat scathing summation, if Israeli jurists do not obey or enact their own laws and standards, they cannot complain when others try to show them up as “humbugs and hypocrites”. All in all, he suggested, quite a challenge awaits that new peace envoy, Tony Blair!

Last of the three speakers was Sir Nigel Rodley, Professor of Law and Chair of the Human Rights Centre at the University of Essex. Gamely standing in at the last moment for Malcolm Shaw, QC, who was laid low by the ‘flu, Rodley focused particularly on the legal and political implications of the settlements.

While admitting the “built-in ambiguity” of UN 242 (1967) over questions of the extent of territory or territories to be vacated, he nonetheless accepted that there was no ambiguity over the explicit nature of the call for negotiations. However, while Israel formally accedes to this demand, in practice settlements have acted as a “spoke in the legal wheel”. And this probably deliberate distortion or imposition, said Rodley, has inevitably determined the shape of the political wheel.

Picking up on a theme raised by Susan Marks, Rodley noted that Israel has made much of disputing the applicability of human rights laws to “non-state players”. In much the same manner as Britain and the USA have tried to play it regarding the battle against terrorists. Yet Geneva does surely apply to the OT, he insisted, countering the prevailing Israeli judicial trend.

Sir Nigel admitted to feeling “more generous towards the Israeli Supreme Court” than Sir Geoffrey. The court had, he reminded listeners, explicitly ruled against torture in 1998; it also challenged the route of the wall and overturned the hitherto “reckless disregard of Palestinians” effected by the route. Plus Israel’s Supreme Court heard a case about alleged IDF misdeeds in Rafah while fighting was still going on – by notable contrast to the US Supreme Court, entirely silent so far about Guantanemo Bay, and indeed to virtually all other equivalent supreme courts.

Overall, though, he concluded that the system seems “designed to protect the settlements”. So until it is decided “what the settlements are for, and what they are doing”, it is hard to consider anything else.

Questions and Answers

Dozens of questions followed the formal addresses. These covered issues ranging from the right of resistance and the nature of Hamas to the precise borders of Israel, queries arising from the annexation of Jerusalem, the efficacy of international law altogether, and even the vexed question of Israel’s foundation.

Susan Marks explained that while there was indeed a “right to resist”, there were distinct limits. For instance, only military personnel are deemed “legitimate targets”. To the extent that assailants or would-be freedom fighters target civilians these acts could be categorised as war crimes. As to notions that conscription makes all Israelis military or potential military personnel, this, she found, was “very ambiguous” – and probably hard to sustain in a court of law.

To Bindman it seemed “crass” to call Hamas merely a “terrorist group”, and thus use this epithet to excuse Israel, or anyone else, from negotiating with them. After all, the party was democratically elected. And if Britain could talk with the IRA, he argued, why not Israel with Hamas?

Rodley, however, answered with a different nuance: “The Israeli government view might be unwise politically, but it is not unprincipled”, he stated. For Hamas participated in elections predicated on the structures of the PA, a body set up in the same Oslo talks that included recognition of Israel. Hence to deny Israel’s right to exist also, he seemed to imply, denies Hamas’s own right to govern.

On Israel’s particular take on UN 242 – which they formally accede to – Rodley was equally exacting. Old Israeli arguments about the conquered land not being legally acquired by predecessor regimes (viz. Jordan and Egypt) must perforce fall by the wayside. As to where Israeli borders really lie, in the absence of a formal and final regional peace treaty, said Rodley, there was no absolute consensus. However, the 1948/67 lines seem acceptable to most as a basis for talks – with the fate of Jerusalem requiring some yet-to-be-revealed “neutral umpire in the sky” to judge.

Marks tackled head-on a tough if cynical question about law being “merely an instrument of politicians”. Yes, she agreed, some say that; but (she implied) the same people also find themselves hoping that “if only international law were enforced, all would be well with the world”. You cannot have it both ways. And in practice it is neither all nor nothing. Even if the Israeli Supreme Court had just “tinkered around the edges”, even that was of some value…

One questioner wanted to know whether Israel itself was a legitimate entity, seeing as it had been “born out of terrorism”. To this Marks replied with the views of Derrida and Eagleton, who said that “violence in the creation of states is the original form of all politics”. Thus it is not unique to Israel’s creation. In reality the original “illegality” gets cured by the passage of time, she said. Where Israel can stand accused, though, is that its further expansion since 1948 has “engaged the norms of resolutions in international law”.

As opposed to a bird’s eye view, a legal eagle’s vision can be surprisingly different, listeners learnt. For instance, while Rodley characterised the Palestinian refugees’ putative right of return as politically and morally a “strong proposition”, he also issued a caution on behalf of lawyers everywhere. Namely, that the same right was legally established only after the displacement took place.

All speakers seemed to agree that Israel had tied itself in knots by variously describing the territories as occupied or not, depending on whether international law would assign it culpability. They also concurred that what was really a “conflict of nationalities” tended to “wear the lineaments of religion”. Take out the power of religion and quite a few problems would become manageable, if not wholly soluble.

It was a sanguine hope, and one that tallied with Tony Klug’s concluding remarks praising the meeting as a “valuable open space for real debate – without vilification”.

After such a stimulating and high-powered event, few could dispute the law’s role as part of the problem, yet also as a possible way out. As Bindman put it, “the fact that so many came here tonight means that law is not just a vainglorious pursuit. Rather, it is testimony to its centrality in these affairs”.

With thanks to Lawrence Joffe for this report.

Speakers

Professor Susan Marks Professor of Public International Law at King’s College, London.

Professor Malcolm Shaw QC Sir Robert Jennings Professor of International Law at the University of Leicester.

Sir Geoffrey Bindman Visiting Professor of Law at University College London and London South Bank University. Chairman of the British Institute of Human Rights.

Chair Dr. Tony Klug Middle East analyst. Former senior official of Amnesty International. Vice chair of the Arab-Jewish Forum.