The Use and Abuse of International Law in the Occupied Territories

The Use and Abuse of International Law in the Occupied Territories

State of Exception

What role has local and international law played in the Occupied Territories?


Living and working as a lawyer in the Israeli-occupied West Bank, I have followed the changes that Israel has been making to the laws in force there since the late 1970s. Over the course of the first 24 years of its occupation, Israel imposed laws affecting every aspect of Palestinian life—from land and water use to mobility and zoning—that have enabled the establishment of Israeli settlements and redefined the lives of Palestinians on their own land. And yet, during most of these years, there was seemingly little or no interest shown by the Palestine Liberation Organization and the Palestinian political leadership based outside the Occupied Territories in these legal maneuvers, leaving it up to human-rights organizations like Al Haq, an affiliate of the International Commission of Jurists, and the Palestine Human Rights Information Center to document these changes and show how they violated international law.

When negotiations started in 1991 between Israel and the Palestinians, who were represented by a joint Palestinian-Jordanian delegation in Washington, I thought this situation might change, so I joined the delegation in order to ensure that any agreement signed by the PLO would not have the effect of consolidating Israel’s violations of international law. The West Bank delegation that I advised knew exactly what I was talking about, and yet we found little interest among the PLO’s Tunis leadership.

Throughout my time in Washington, I wondered why this was so. Did the PLO have an alternative plan to address Israeli and international law or a separate channel for negotiations? After the first year, I gave up and left the talks. Two years later, I read the 1993 Oslo Accords Declaration of Principles and saw my worst fears confirmed: The PLO had fallen into every trap that the Israeli delegation prepared. Just as I warned, Israel succeeded in consolidating the laws it implemented that restrict Palestinian life in Gaza and the West Bank and that enable the expansion of its settlements.

After the Palestinian Authority was consolidated in 1995, its leadership continued to ignore the legal dimensions of the occupation. In the absence of such pressure, Israel continued to implement all of its plans in the Occupied Territories, even when they were in violation of the accords.

Why did the PLO, the Palestinian Authority, and other representatives repeatedly fail to use the law to the Palestinian people’s advantage? How did their view of the law differ so significantly from the Israeli government’s? And how did Israel succeed in creating alternative legal regimes for regulating Palestinian lives that fell outside the purview of international laws relating to war and occupation? All of these questions have haunted the history of the region for the past half century, and they now find some compelling answers in Noura Erakat’s Justice for Some: Law and the Question of Palestine.

Israel’s legal maneuvers go back to 1951, when it won concessions in the United Nations’ Convention Relating to the Status of Refugees that allowed it not to recognize as refugees those Palestinians forced out of what became Israel in 1948, as long as they received assistance from the United Nations Relief and Works Agency. It is an exclusion that is in effect to this day.

Since that exception, Israel has done everything in its power to continue to manipulate and avoid adhering to those conventions under international law governing refugees. In the 1950s and ’60s, Israel kept the estimated 160,000 Palestinians who had not fled or been expelled during the 1948 war under what amounted to a martial-law regime through a declaration that the country was still in a state of emergency and the adoption of what came to be known as the Defense Emergency Regulations. By doing so, Erakat observes, Israel racialized martial law in order “to dispossess, displace, and above all, contain its native population.”

Even before the 1951 exception, Israel deployed legal measures to achieve this aim. In June 1948, orders were given to prevent the return of Palestinian refugees “by every means,” and an estimated 3,000 to 5,000 Palestinians attempting to return were killed by Israeli troops along the 1949 armistice lines. In 1950, Israel passed the Absentees’ Property Law, which effectively dispossessed approximately 750,000 Palestinian refugees denied the right of reentry to claim their lands. Many of the Palestinians who remained in Israel were declared “present-absentees” and had their lands confiscated as well.

After the 1967 war, Israel found itself facing a new set of conventions that it had to outmaneuver—those international laws applying to war and occupation. With the seizure of Gaza and the West Bank (including East Jerusalem), Israeli leaders had to develop a full-scale approach toward legalizing their occupation of Palestinian land, which was in violation of international law governing states that have seized territory during a war.

After annexing East Jerusalem outright 20 days after its army entered the city, Israel hesitated when it came to the rest of the West Bank. The Israeli army issued a military order that affirmed the principles of the Fourth Geneva Convention, thus acknowledging that Gaza and the West Bank were now occupied. But this lasted only a short time: Four months later, the order was rescinded, and Prime Minister Levi Eshkol began discussing with Theodor Meron, the Foreign Ministry’s legal adviser, whether Israel could build settlements in the Occupied Territories.

When Meron confirmed that it would violate the Fourth Geneva Convention, the Israeli government supplanted his recommendations with a legal argument put forth by Yehuda Zvi Blum, a Hebrew University law professor, who asserted that since Jordan was not a rightful sovereign over the West Bank, the territory that Israel now controlled was not occupied as a matter of law. Without any legal parallels for this situation, the territory was sui generis; therefore, Israel was allowed to exercise its authority there, as Erakat notes, “without either preserving the sovereign rights of its inhabitants or absorbing them under [Israel’s] civil jurisdiction.”

From 1967 on, this argument concerning the exceptional status of the Occupied Territories became central to Israel’s domination of them. Not only did Israel argue that it was still fighting a war like no other and that the Palestinians were not a juridical people—that is, a people with collective political and legal rights. Israel now also claimed that since the territories seized were not controlled rightfully by another state, there were no international laws to inform how Israel might govern such a territory. As Erakat notes, the invocation of “exception, like necessity and martial law,” afforded “Israel room for maneuvering” and allowed it to deploy “the sui generis framework as a sovereign act compelled by a unique circumstance.” As a result, Israel insisted that it was “within the bounds of law” when it came to establishing settlements. “A sui generis framework,” she adds, maintained “the veneer of legality while producing a violence that ‘sheds every relation to law.’ ”

In the long history of Israel’s colonization project, there are many other examples of such legal maneuvers. While declaring Palestinian lands “closed areas” became central to the post-1967 regime, arbitrary edicts under the emergency powers of the state were used to prevent Palestinians from cultivating their lands before that year’s war. Erakat writes that “from 1948 to 1953…350 (out of a total of 370) new Jewish settlements were built on land owned by Palestinians.” The ability to designate Palestinian land closed areas “bolstered the legal framework reifying Palestinian displacement” early on, creating a legal and political context in which Israeli settlement in the West Bank and Gaza was normalized.

The sovereign-exception framework became the core legal argument after 1967, serving to justify why Israeli settlers living in the occupied West Bank could be subject to different laws from those that applied to the rest of the population in the same area. It was also used to justify the extensive use of force against civilians in Gaza, where, as Erakat writes, “in effect Israel usurped the right of Palestinians to defend themselves because they did not belong to an embryonic sovereign, relinquished its obligations as an occupying power, and expanded its right to unleash military force, thus rendering Palestinians in the Gaza Strip triply vulnerable.” The sovereign-exception framework, she concludes, “has since become the bedrock of Israel’s military campaigns against the coastal enclave.”

As a human-rights activist in the 1980s, I took every opportunity in Palestine and abroad to warn against the devastation that the sovereign exception wreaked on everyday Palestinian lives in the Occupied Territories. I also pointed out the danger that it posed to any peaceful resolution to the Israel-Palestine conflict by enabling the establishment of Israeli settlements in the Occupied Territories, thereby making it prohibitively difficult to create a Palestinian state.

When I spoke to audiences in the United States, the usual response was that these settlements were necessary for Israel’s security and that as long as Israel had a Supreme Court to which the Palestinians could appeal, the situation could not be all that bad. In time, the justification that the settlements bolstered Israel’s security proved to have little standing, while the Supreme Court—when presented with an opportunity to rule on the legality of civilian settlements in the Occupied Territories—concluded that this was not a legal matter but a political one outside the purview of the court.

Instead of protecting legal norms, Israel’s Supreme Court excelled in making fine distinctions, such as that the occupation could be indefinite but not permanent. Had the court ruled on the illegality of the settlements, it could have saved the region from what now constitutes one of the biggest obstacles to making peace between Israelis and Palestinians.

The Supreme Court went further: It provided arguments for the Israeli government to continue the settlement enterprise, and in innumerable cases challenging the Israeli army’s practices, it used the argument of military necessity to justify the harshest and most egregious violations of Palestinians’ human rights.

Even as Israel consolidated its expansionist project through the law, the PLO directed its attention more to politics and diplomacy. After the 1968 Battle of Karameh, in which a large Israeli invading force was repelled by Palestinian and Jordanian fighters, the PLO unified the most active Palestinian movements and parties. In 1974, it made some notable diplomatic gains as well when its chairman, Yasir Arafat, was invited to address the UN General Assembly and make the case for the body to recognize Palestinians as a juridical people. Introduced as “the General Commander of the Palestinian Revolution,” Arafat cited the UN Charter’s commitment to freedom and the right of self-determination and insisted that these principles had to be extended to the Palestinians, as they were to many other peoples. The speech helped thwart an American and Israeli attempt to delegitimize the PLO and label its use of nonstate force as criminal and terroristic. It also helped win UN recognition of the Palestinians as a people with their own legal and political rights, in particular, the right to self-determination. As a result, Erakat writes, the Palestinian question was transformed “from a humanitarian crisis, punctuated by the overwhelming presence of an exiled refugee population across the Arab world, into a political crisis marked by the failure of current and former colonial powers to deliver sovereignty and independence to a colonized people.”

However, she points to the ambiguity in what was then hailed by many as a victory for the PLO: “By articulating its demands for peoplehood in the framework of international law and pursuing this goal at the United Nations, the PLO drew upon the same legal and institutional norms that legitimated Israel’s establishment, naturalized its existence, and protected its territorial and political sovereignty.” This turn to international law as a result “catalyzed a schism within the PLO between a ‘pragmatic’ camp that sought a state as an interim, or even final, step to full liberation and the ‘Rejection Front,’ led by the PFLP [Popular Front for the Liberation of Palestine], that insisted upon revolution in order to upend Zionist settler sovereignty.”

This question about how to relate to Israel and to international laws legitimizing its existence has continued to plague Palestinians’ politics and divide their different factions: Was the Palestinian liberation movement dedicated to creating a Palestinian state alongside Israel or in place of Israel? Also at issue was whether to engage in a diplomatic process with Israel in order to find a resolution to the conflict or to pursue liberation through every possible means.

The split continued into the 1980s and was one impediment in the talks that began in the early 1990s, as it was reflected in the divergent positions taken by the various Palestinian factions to the Oslo Accords. Even after the accords were concluded, this rift continued to divide Palestinian politics into two camps, with the vehement rejection of the accords by Hamas and the PFLP weakening the Palestinian Authority, which emerged as a result of the agreement.

Palestinian leadership would also be forced to reckon with another aspect of international law that serves as a critical area for inquiry in Erakat’s book and one of the key lessons she takes away from her analysis: that “the law is only as meaningful as the political will underpinning its enforcement.” In the case of Palestine, this was evident at many points throughout Palestinians’ long years of struggle, but never more so than at the time of the Oslo negotiations.

Having followed closely over many years the changes in the law and administration of the Occupied Territories, when I joined the Palestinian delegation, I lobbied the PLO to adopt a legal as well as a political strategy to counter Israel’s attempt to consolidate and enshrine its legal maneuvers in any agreement with the Palestinians. The PLO, however, was reluctant to do so, even in the secret negotiations that took place in Oslo in 1992 and ‘93. As Erakat notes, the PLO “leadership’s lack of appreciation for the law, and particularly for the law’s strategic malleability,” and “its single-minded goal of obtaining de jure recognition for the liberation movement” ended up blinding it “to the deleterious terms of the agreement it was drafting.”

While Palestinian negotiators at first sought a promise from Israel to cease all settlement activity, they ended up accepting something far less: Israel’s offer to recognize the PLO as the representatives of the Palestinian people. As Abu Ala, the chief Palestinian negotiator at Oslo, later explained the reasoning, “Israeli recognition of the PLO as the representative of the Palestinian people would also mean Israeli acceptance of the PLO’s political agenda, including the right of the Palestinian people to self-determination, and their right to establish an independent Palestinian state.”

As time has shown, Abu Ala could not have been more wrong. “As part of the Faustian bargain that is the Oslo framework,” Erakat explains, “the Palestinian Authority has internalized the colonial logic that its compliance and good behavior will be rewarded with independence.” Thus, by signing such an agreement, the PLO not only undermined the Palestinians’ larger legal claims; it also “severely altered the post-1965 Palestinian national movement and transformed it into a critical part of Israel’s settler-colonial machinery, rather than being the primary impediment to that apparatus.”

In the final portions of her book, Erakat describes the various legal campaigns that the PLO and then the Palestinian Authority have embarked on since the Oslo Accords, including a resort to the International Court of Justice in 2004 and an attempt to upgrade the Palestinian territories’ status at the United Nations from a nonstate observer entity to a member state.

Erakat concludes that in each instance, “the Palestinian leadership pursued a legal campaign aimed at, in the crudest and most rudimentary terms, holding Israel to account through international law.” At the same time, bent on winning US favor, the Palestinians’ strategy has not included any attempt to challenge the United States’ unequivocal aid to Israel, thus dooming it to failure.

A common thread running throughout these failings is the inability of the Palestinian leadership—both in the PLO and the Palestinian Authority—to appreciate that nations will not adhere to international law unless they are forced to. As Erakat shows, the opposite has often proved to be the case: Political will tends to undermine legal norms. Without the United States’ aggressive intervention on behalf of Israel, Israel’s legal arguments would not have succeeded. “Over the decades,” Erakat writes,

the United States has shielded Israel from diplomatic censure and ensured its military prowess in the region while tacitly endorsing Israel’s sui generis occupation framework that alters the territorial status quo by appropriating Palestinian lands but not the Palestinians on them. Consequently, U.S. Mideast policy has enabled Israel to expand its settlement enterprise without serious consequences.

With the Trump administration granting Israel even more impunity, this continues to be the case. When Prime Minister Benjamin Netanyahu promised to annex the Israeli settlements in the West Bank during his recent reelection campaign, the United States did not raise questions about its legality—in fact, the Trump administration had just recognized the Israeli annexation of the Syrian Golan Heights.

Trump has shown a willingness to go even further. On April 12, 2019, following a complaint by Palestinians calling on the International Criminal Court at The Hague to investigate Israel’s house demolitions and building of illegal settlements in the West Bank, Trump promised that “any attempt to target American, Israeli, or allied personnel for prosecution will be met with a swift and vigorous response.”

Concluding her book, Erakat argues that “Palestinians’ primary claim is not to control; it is to belong. The unbending refusal to center Palestinian claims and invert the equation of Jewish sovereignty equaling Palestinian oppression is preventing us from turning to more fruitful possibilities.” The law will be one mechanism for achieving this right to belong, but she notes that there is political work to be done, too. She quotes Gabriel Ash, an Israeli-American analyst, who points out that the Israeli citizenry suffers “from a congenital inability to belong to the land it claims as its homeland,” when what is necessary is “an Israeliness that is at home in the Middle East” by recognizing the rights of Palestinians who also live there. Erakat agrees but also recognizes this may not be possible in the current moment, with Israel’s decisive turn to the right and a government controlled by the country’s settler contingent.

While Erakat is correct in arguing that international law has failed to regulate or restrain Israel’s colonial project, what is absent from her book is any consideration of whether Israel has been perhaps too clever for its own good. Its success in avoiding the application of international law and in deceiving the Palestinian leadership into submission has worked against its own interests as well, foreclosing the possibility of peace. However limited Arafat’s leadership was, he was ready for compromise with his adversaries. By rejecting his willingness to compromise, Israel has perpetuated the conflict.

There also might still be some promise inherent in international law, even if it is currently neglected. The law, in Erakat’s narrative, has been cynically misused by Israel. Yet there still may come a day when international law can again serve as an arbiter in resolving conflicts. One hopes this is the case, because of its effect not only on the Middle East but on the rest of the world as well.

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