What is behind the left’s anger at a government commission report that rejects the existence of the occupation? The report presents an opportunity to replace empty political rhetoric and legality with a focus on facts on the ground.
The Israeli left responded with a mixture of laughter and rage to former Justice Edmond Levy’s report on the status of the West Bank and its claim that “there is no occupation.” One commentator particularly baffled was human rights lawyer Michael Sfard, who wrote that the “report was written in Wonderland, governed by the laws of absurdity.” Instead of the laws of absurdity, Sfard wants us to continue embracing the laws of war.
Such responses reflect confusion. Their underlying assumption is that claiming what is going on in the West Bank is not an occupation means morally accepting it. But even though the report fails to describe the domination of Palestinian life in the West Bank, that conclusion does not follow. Why, then, are so many of us, within Israel-Palestine and internationally, so attached to the occupation category?
One of the central arguments the report makes is that the West Bank is not occupied, because occupation is a temporary situation. Israeli control in the West Bank, on the other hand, has no end in sight. This argument sounds quite pernicious. It assumes that just because Israel took violent custody over this area, it gained rights to it. However, while it is true that 20th century international law has forbidden the acquisition of land by force, such movements from fact to norm are not unfamiliar to international lawyers.
A more constructive approach should embrace parts of the conclusions, instead of rejecting it wholesale. The strategic goal should be to point out what does follow logically from sovereignty over the West Bank. West Bank Palestinians must immediately be granted the right to citizenship and political participation. Not granting such rights would augment growing accusations of apartheid against Israel. Alongside possible investigations by the International Criminal Court, this would fuel the transnational movement for democracy in Israel-Palestine – which Israelis and Palestinians are of course part of.
The occupation paradigm has historically served Israeli governments to fend off criticism by pretending to negotiate, and this report sends a clear message to audiences abroad. The golden age of negotiation is long gone. Rather than waiting for a messianic conclusion to “peace talks,” pro-democracy citizens of the world must support likeminded Palestinians and Israelis right now.
Make no mistake – regardless of the conclusions, the legal reasoning in the report is flawed. Many arguments are omitted in what seems to be an intentional mischaracterization of the standard legal position on this issue. This sloppy work seriously reduces the credibility of the report. However, the report does laudably capture what has been happening on the ground for a long time now. It exposes how the settlements were a premeditated project fostered by Israeli governments, and that there was consequently never a serious intention to allow the Palestinians to exercise self-determination. The Israeli left has been making these claims for years. Why should we discard them when they come from a committee appointed by a far-right government?
As Noam Sheizaf pointed out, the argument that the West Bank is “not occupied” because the Jordanians never acquired legitimate authority there is not new. But Levy’s report does reflect a refreshing willingness for international legal creativity. It does not abandon the legal method all together, but unabashedly connects often-abstract legal doctrine with political power and political will. We must learn from that. It is imperative to develop new normative vocabularies instead of the familiar fetishism for the international law, as interpreted in Geneva. The latter may aim to protect humans from arbitrary state violence, but has nothing serious to say about freedom. Its underlying purpose is bodily integrity, not the liberation of the soul.
Abandoning the occupation paradigm will enable us to rethink self-determination for both groups much more ambitiously. It will encourage us – Israelis and Palestinians – to address real-life grievances on our own, not wait for some future remedy from the High Court of Justice, which in any case has failed.
One way to start would be to shift focus. The last bastion of human rights the report addresses – after it has done away with occupation – is the right to property under the Universal Declaration of Human Rights. An obvious different focus is the right to citizenship. Instead of focusing on buildings and land, a report premised on equal rights will focus on men, women, children, voting, discrimination, and access to public services, such as water.
Such reports may seem to already exist – ignored because weak human rights organizations rather than strong governments write them. That is partly true, but standard human rights reports are all written through the occupation prism. They are therefore limited in what they can wish for, and cannot offer changes to the structure of the regime.
Like Levy’s, such a report will depart from existing doctrine by redefining domestic institutions. Some may say it will describe a wonderland, as it will require cooperation between Israelis and Palestinians, which doubtless seems like a dream. But those who fight to preserve the occupation paradigm are the ones currently ignoring the reality.
The strongest argument for the occupation paradigm is that without it we have no law at all, which makes it ostensibly impossible to speak truth to power. But we should admit that, almost invariably, the only body that gains from this paradigm, which pretends that Palestinians and Israelis are divisible, is a government always seeking to divide us further.
Itamar Mann is a doctoral candidate at Yale Law School.