No Justice, No Peace
A lecture by Sir Geoffrey Bindman on the 40th anniversary of the occupation of the Palestinian territories to Amnesty International UK at the Human Rights Action Centre, London EC2 on 5 June 2007
I am very pleased to have been invited to speak on the occupation. It is a subject on which I feel very strongly. I have been to the West Bank and Gaza and I have seen for myself the appalling conditions of the Palestinians who live there for which the policies of the Government of Israel are largely responsible. I congratulate Amnesty on its publication to-day of its report “Enduring Occupation”. It contains vital information in depth on issues which I can barely touch on in this short address.
Because the law, and especially human rights law, is my particular interest I will concentrate on what I called in my recent short article in the Amnesty magazine “the paradox of Israel”. By this I mean the contrast between the high ideals of justice and democracy which are embodied in the legal and political structures within Israel itself, and the repressive policies carried out by Israel in the occupied territories.
Israel was established in 1948. The legal foundations of the State are derived largely from the Anglo-American model of constitutional democracy. The Declaration of Independence adopted when Israel was established says that it “will foster the development of the country for the benefit of all its inhabitants; it will be based on freedom , justice and peace…; it will ensure complete equality of social and political rights to all its inhabitants irrespective of religion race or sex; … and it will be faithful to the principles óf the Charter of the United Nations.”
These aspirations have arguably been achieved to a great extent within the borders of the State itself for Israeli citizens. There are two exceptions. Discrimination against Arab citizens is still rife at a number of levels; and the readiness of the courts to defer to “security considerations” has over the years undermined social and political rights.
The fundamental challenge to what otherwise appears to be broadly democratic legal and political system is in the occupied territories. I understand the demands of security and the need to resist violence from whatever source but they cannot justify throwing to the winds in the occupied territories the rule of law and human rights principles embodied in the Declaration of Independence and in subsequent basic laws passed by the Knesset.
First there is the legality of the occupation itself. This issue is twofold.
First: did Israel enter and take control of the territories lawfully? To the extent that this occurred in the course of the hostilities of the 1967 war this may be a academic question. International law recognises that occupations may occur lawfully on a temporary basis. However, in resolution 242 the UN Security Council immediately after the 6 day war on 22 November 1967 called for “the withdrawal of Israeli armed forces from the territories occupied in the recent conflict”. After 40 years it hardly seems plausible to argue that the occupation remains lawful. That is why John Dugard, the United Nations Special Rapporteur on human rights in the territories,in his recent report [1] has suggested that a further opinion be obtained from the International Court of Justice.
Secondly,- and of more immediate and practical importance - is the responsibility of Israel for the population of the territories and what it is permissible for Israel to do there. The Fourth Geneva Convention sets out the rules which give effect to the principle that the civilian population of a territory under belligerent occupation must be treated with respect and subjected to as little interference as possible. The Israeli courts have vacillated over the years as to whether they are bound by the Geneva Conventions and the Israeli government has never accepted such an obligation. Their argument is that the territories were not validly occupied previously by any other state, in other words that they were a sort of no man’s land that didn’t belong to any one else. This argument is based on a selective and quite implausible interpretation of article 2 of the Fourth Convention and has been rejected by the United Nations and every other international authority. Most recently, the argument has been conclusively analysed and rejected by the International Court of Justice in 2004 in its opinion on the construction of the wall in the West Bank. The judges conclude beyond doubt that Israel is legally bound by the stringent humanitarian obligations in the Convention. [2]
In fairness it should be said that the Israeli government has said it will observe the humanitarian obligations of the Geneva Convention but it has never made clear what obligations it regards as “humanitarian” and it it has plainly flouted them in numerous ways.
Among these is the prohibition of transfer by Israel into the occupied territory of any part of its own population. This is the crucial question of the legality of the settlements which have taken place over the last 40 years, now containing some 460,000 Israeli citizens. As Professor David Kretzmer of the Hebrew University remarks in his book on the Occupation [3] “According to the international law of belligerent occupation,the political status quo of occupied territories must be maintained so that their ultimate fate can be determined by political negotiation. In contrast, the political aim of settlements is to create facts that will predetermine the outcome of any negotiations….. Furthermore , the existence in the territories of a large number of settlers,who enjoy the full democratic rights of Israeli citizens and for whose benefit scarce land and water resources have been harnessed, has made the regime there much closer to a colonial regime than one of belligerent occupation.”
Article 49 of the Convention also prohibits individual or mass forcible transfers of residents of the occupied territory to the territory of the occupying power. Hence not only the illegality of the constantly expanding Israeli settlements, but also of the converse: the transfer to Israeli prisons of Palestinian residents of the West Bank, numbering now some 9000, equally violates the Convention.
Then there is the brutal treatment by Israeli occupying soldiers, including the arbitrary arrest and detention of many Palestinians. Family homes are demolished. House demolition is a form of collective punishment,violating international law, because it injures not only the individual whose conduct may or may not merit punishment, but families and relatives who may share the houses. There is expropriation of land and the exclusion – condemned by the International Court of Justice in the opinion already referred to - of many Palestinians from access to their land by the wall which now separates a large part of the West Bank from Israel. Some 80% of the wall has been built on Palestinian land, much of which is on the Israeli side of the wall from which its owners are thus excluded or their access severely impeded. The International Court of Justice made it clear that a wall on the Green Line, marking the agreed 1967 boundary of Israel, would be lawful, but it has clearly been erected not merely for security but as a means of expropriating territory and causing gratuitous disruption and harm to many Palestinians.The Israeli government has chosen to ignore the ruling of the ICJ and attempts in the Israeli courts to challenge the route of the wall have had little success.
Perhaps most damaging of all in terms of human life is the policy of assassination of alleged terrorists and arbitrary violence towards civilians. Many Palesrtinians have been killed and injured, including a high proportion of children, with apparent impunity. There is little evidence of any disciplinary action or prosecution of Israeli soldiers for crimes against humanity or even for lesser offences.
Much of this repression is associated with the perceived need to protect and advance the interests of the settlers. Thus the creation of a network of roads across the West Bank which Palestinians may not use – even if Israelis want to give lifts to Palestinians along these roads they are prohibited from doing so. It is this and other acts of discrimination against Palestinians which lead some to use the term apartheid in describing the treatment of Palestinians by Israel. Professor Dugard, who knows a lot about apartheid as a South African and author of the leading study of Human Rights in South Africa, [4] has said in his report that while on the face of it occupation and apartheid are very different regimes, there are many Israeli laws and practices which at the very least violate the 1966 UN Convention on the Elimination of all Forms of Discrimination and could violate the 1973 Convention on the Suppression and Punishment of the Crime of Apartheid.
The way in which the Israeli government has organised the administration of the West Bank also resembles that of a colonialist power. It has delegated authority to the military which administers the territories as a separate legal entity subordinate to the executive power of the Israeli government. While it is true that the Palestinian Authority has nominal power in some areas, the military issues regulations and orders controlling virtually every aspect of the life of Palestinians. The range and pettiness of the regulations which restrict and slow down the lives of ordinary people are extraordinary. Travel within the West Bank is seriously curtailed for Palestinians. I have alraady mentioned the restricted roads but these are only part of the story. On those roads which are accessible to Palestinians checkpoints are a constant hazard and many Palestinians including children, have been killed or injured as a result of their interaction with Israeli soldiers at these or elsewhere.
How can this gulf between the high ideals of the Israeli constitution be reconciled with the practice in the occupied territories? The Israeli judiciary has strong links with British and American judges and seeks to match their technical and ethical standards. Many Israeli academic lawyers and judges have been trained at least partly in Britian and America. The recently retired president of the Supreme Court Aharon Barak simultaneously held a professorship at Yale Law School.
By placing responsibility for the occupied territories in the hands of a military administration the Israeli government has tried to exclude judicial supervision and intervention to restrain their abuses. To its credit the Supreme Court has declined to be totally excluded and has been prepared to accept petitions for judicial review in some cases of activities in the West Bank, but it has been almost entirely ineffective because it has routinely deferred to arguments based on security. It has upheld house demolitions and for many years permitted torture. Although its attitude changed [5] , torture seems still to be in regular use.
On his retirement Judge Barak was praised as a champion of human rights and a judicial genius. Yet an Israeli writer,Gideon Spiro, has recently disputed his claim to balance human rights against the demands of security. “Miraculously” says Spiro, “whenever Barak perceives a conflict between the rights of occupied Palestinians and ‘security’, ‘security’ nearly always wins the day.”
Not only Chief Justice Barak, but his predecessors, Chief Justices Shamgar and Landau, for example, have shown reluctance to challenge human rights abuses where they affect Palestinians. Landau and Barak consistently rejected the view that the Supreme Court had jurisdiction to review alleged violations of the Forth Geneva Convention, even though the government had declared its intention tha the humanitarian provisions should be observed. Other judges but with less influence, like Judge Bach, disagreed with them. Had their view prevailed, many lives might have been saved by greater curbs on abuses.
Ultimately, governments are responsible for the abuse of human rights and the courts can always be defeated by a determined legislature. But those who administer the justice system should stretch the limits in defence of human rights. The Israeli Supreme Court has failed to do this. It could do and have done much more to mitigate the abused of the occupation.
For me personally, as for many others, it is a tragic disappointment that what once looked like a positive attempt to introduce an energetic and creative population into the Middle East which could bring economic, social and political benefits to the region has developed into an instrument of oppression in defiance of international law. This is hugely damaging not only to the Palestinians but the citizens of Israel as well,particularly to its young soldiers, many of whom have been brutalised by their role in the occupation. The record of several Israeli governments is a shameful betrayal of these ideals but the United States,which has failed to use its enormous influence to stop continuing gross human rights abuses, has a big share of the blame.
Where then do we go from here? This is a task for politicians, though they haven’t done a very good job up to now. John Dugard, with a limited brief,has confined his recommendations to arguing for the issue to be brought yet again before the International Court of Justice. Amnesty in its new publication has made a series of recommendations to the Palestinian armed groups, to the Palestinian Authority,and to the international community. Broadly these demand the proper observance of human rights standards. There seems little prospect of tackling these through any judicial process. We depend as so often on the imperfections of politics.The most urgent need is to lift the economic sanctions currently imposed on funding to Palestine. There is a humanitarian crisis which cannot wait for any resumption of political negotiation.