Chipping Away at 50 Years of Occupation

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We approach the fiftieth anniversary of Israel’s occupation of Palestine with one very important question in mind: will we see another 50 years of military rule, forced displacement, and theft of Palestinian land and resources? There are no prospects for peaceful resolution of the conflict that result in the restoration of the human rights of the Palestinian people or an end to the theoretically temporary jurisdiction of occupation law (although many still insist they can see the unicorn of a “two-state solution” despite endless settlement expansion somewhere on the horizon).

In contrast, Israeli officials now talk of “managing the conflict,” seemingly preferring the status quo to any negotiation that forces them to give up land they have unlawfully colonized with settlements. American policymakers are resolutely sunk in a bottomless well in military and diplomatic support for Israel, renewed in 2016 at $38 billion for the decade ahead, without any attempt to change Israeli policies, aside from the now distant bleats from the Obama administration that Israel is “cementing a one-state reality of perpetual occupation that is fundamentally inconsistent with Israel’s future as a Jewish and democratic state.”[i]

Palestinians seem resigned and defeated. Gone is the bluster of Hamas, apparently exhausted from rattling its Gaza cage, unapologetically lobbing shoddy rockets into Israeli cities despite the resulting tsunami of airborne Israel Defense Forces (IDF) devastation in its territory. The Palestinian Authority (PA) is more focused on its own political survival, facing a credibility crisis and the growing power of Mohamad Dahlan, PA President Mahmoud Abbas’ arch-nemesis, who is reportedly supported by the United Arab Emirates.[ii] And the Palestinian violent “resistance” now is represented by men, women, and teenagers using kitchen knives to stab random Israelis, inflicting nothing but fear and casualties, while wrongfully praised by Hamas as “revenge.”

One of the few bright lights of hope—at least for justice, and the promise to deter, one day, the ongoing Israeli crimes of land and resource theft as well as the unlawful Israeli and Palestinian attacks on civilians that characterize every outbreak of war—is the International Criminal Court (ICC) prosecutor’s newly secured jurisdiction and ongoing examination of crimes committed in and from Palestine since June 2014. In November 2016, the ICC prosecutor’s annual report on ongoing preliminary examinations noted her office was continuing its work to establish whether there was a reasonable basis to open an investigation.[iii] If the prosecutor decides to open a formal probe, the ICC will be the first international body with the competence to criminally sanction Israeli government officials for their role in transferring Israeli civilians into settlements in East Jerusalem and the West Bank, as well as Palestinian and Israeli military and civilian leaders implicated in other war crimes.

There are other global efforts now focused on distinguishing between Israel and Israeli settlements. The European Union has shown a newfound willingness to comply with its own laws requiring labeling settlement goods[iv]—for which France issued implementing regulations in 2016[v]—and deprive settlements of the benefits of preferential trade agreements. There is also a growing swell of progressive Jews who seek to boycott Israeli settlement goods,[vi] believing that such a targeted measure will pressure the Israeli government to abandon its settlement policies, while strictly disassociating themselves from the global “Boycott, Divestment, and Sanctions” movement that seeks to more broadly punish the Israeli government for a wider range of abuses against Palestinians, including ending the occupation itself. Human Rights Watch has called on all businesses to end operations in or with settlements to uphold their human rights responsibilities; we have found that it is impossible to do business with settlements without contributing to or benefiting from the infrastructure of abuse on which such settlements depend.[vii] A global campaign to get FIFA, the world football federation, to stop sponsoring games in unlawful settlements in the West Bank has highlighted the human rights abuses inherent in doing business in settlements. And last year, the UN Human Rights Council mandated the UN High Commissioner for Human Rights to create a database of businesses operating in or with the settlements, presumably as a public, individualized declaration of the council’s disapproval of such activities.[viii]

What these measures suggest is that it is not just civil society actors active in a variety of social and political boycott movements, but governments and businesses as well, that can positively influence abusive governments to comply with their human rights obligations simply by upholding their own laws and responsibilities. In South Africa, it was the boycott of financial services companies of the apartheid state that ultimately contributed to its capitulation and transformation. Following the Rana Plaza disaster in Bangladesh, companies were at the forefront of signing new agreements to protect worker safety, leading the EU and U.S. to increase pressure on the Bangladeshi government. The worldwide anticorruption and transparency movement has led to new disclosure laws in Europe, Canada and the US that required extractive companies to disclose their payments to governments for natural resource production. Public campaigns directed towards the International Olympic Committee to condition Saudi Arabia's participation in the 2012 Olympic games on the inclusion of women athletes in their Olympic delegation and an end to discrimination against women in sports led Saudi Arabia to include four female Olympic athletes for the first time in its history and to make a host of commitments to end discriminatory policies.

In this case, the Israeli government has lashed out against anti-settlement measures with a bevy of rhetoric and retaliatory legal and diplomatic actions that curb not only acts but also critical speech. It has passed a law creating civil, tort liability for mere endorsement of a boycott of Israel or its settlements (very broadly defined as “deliberately avoiding economic, cultural, or academic ties with another person or body solely because of their affinity with the State of Israel, one of its institutions or an area under its control, in such a way that may cause economic, cultural, or academic damage” [italics added]), and in March passed legislation barring foreigners advocating boycotts from entering the country.[ix] It has supported “anti-boycott” legislation in Europe and several U.S. states that would sanction not only those who actively boycott Israel or its settlements, but also organizations or individuals who endorse such a call.[x] And at the same time, it is expanding its existing settlements[xi] with tens of thousands of new housing units, roads, and infrastructure, passing legislation in February that “legalizes” settlements (so-called outposts) it had not previously “authorized” that had been built on land taken from individual Palestinian landowners.[xii]

The practical dilemma, of course, is that even if advocates against settlements miraculously succeed in pressuring Israel to end settlement construction, withdraw its at least 500,000 citizens living on occupied territory, mostly in Jewish-only communities, and return the land it has taken to its Palestinian owners, they will not necessarily end the Israeli plunder of water, minerals, and stone from Palestinian lands, which occupation law prohibits but Israel disregards, like its disregard of many of the other protective measures of occupation law.

More troublingly, an end to settlements will not thereby cause an end to the occupation and the deprivations of an occupied population’s rights that many provisions of occupation law permit. Even properly applied, for example, occupation law allows military courts of occupation forces to try civilians with military rules or even indefinitely to detain them without trial. The Israeli military has authority in an occupation to restrict freedom of movement based on security reasons or military necessity, and to use this to prevent Palestinians from leaving the occupied territory, even if it means they miss jobs, schools, or family members abroad. It also claims the authority to determine where Palestinians can live and to take, use, or declare off limits private property to meet its security needs. These outcomes might be ones that are tolerable for a short duration in the circumstances of war and emergency, but over the long term, they make normal life impossible. And so the legal dilemma we face is that occupation law was intended as a temporary state of affairs, but when applied in perpetuity, effectively authorizes the perpetual deprivation of these rights.

This unseemly reality has led more and more advocates and experts not only to identify the protection gaps of the permanent application of occupation law, but to think creatively about expanding the use of human rights protections, with a more robust focus on civil and political rights, including equality under the law for all people in a territory subject to a government’s jurisdiction or control, without regard to race, religion, or national identity. The legal framework for articulating these demands is still being constructed and debated. But many in the movement for rights and freedom in Palestine are increasingly pushing in this direction, as they press up against the distressing anniversary of an ugly, abusive military occupation with no end in sight.