A Temporary State of Permanence

Although Israel never annexed most of the occupied territories, its actions constitute a de facto annexation that gives the Palestinians the worst of all possible worlds.

Aeyal Gross
Aeyal Gross
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Palestinians use a ladder to climb over the separation barrier with Israel in al-Ram, north of Jerusalem. June 19, 2015.
Palestinians use a ladder to climb over the separation barrier with Israel in al-Ram, north of Jerusalem. June 19, 2015.Credit: AP
Aeyal Gross
Aeyal Gross

In the 2000s, criticism grew about the way in which the “peace process” had become a cover for the prolonging and deepening of the occupation.

Today, those days are over, and negotiations are not even visible on the horizon. Consequently, there is no end in sight to the Israeli occupation of the Palestinian territories, which began in 1967.

In less than two years we will mark the jubilee of the occupation, so it is not too early to begin the debate about whether this is the longest occupation in modern history.

Whether Israel will achieve that dubious title depends on one’s viewpoint concerning Tibet. If we accept the Tibetan version that their region is occupied by China, then they have been under occupation longer than Israel’s occupation of Palestinian lands, and we will have to settle for the silver medal.

However, in contrast to China, which annexed Tibet, Israel has not formally annexed most of the territories it conquered in 1967 (with the exception of the Golan Heights and East Jerusalem). It has not applied Israeli law to them in its entirety or granted the inhabitants Israeli citizenship. In that case, does Israel treat the territories as occupied territory according to international law? Not exactly.

Although there has been no formal annexation, a partial, de facto annexation has taken place. This de facto annexation takes the form of the cities and communities Israel has built in the territories, in which it has settled hundreds of thousands of its citizens. It has applied Israeli law to them and the communities in which they live. But this has been done selectively: only for the Israelis and Jews living in the territories.

This, then, is a partial annexation – though it can be said to be worse than full annexation, in which all the inhabitants of the annexed territory are supposed to enjoy equal rights.

The partial de facto annexation dovetails with Israel’s simultaneous recognition and nonrecognition of the status of the territories as occupied, according to its convenience – in a pick and choose method. At times, Israel recognizes the existence of an occupation (in the sense that it does not treat the territories as part of Israel and maintains a military regime over the Palestinians, relying on international law). At other times, though, it does not, rejecting the idea that the territories are occupied and establishing settlements in them, claiming that the provisions of international law that prohibit this do not apply there.

In any event, the state’s establishment of settlements and cities in the territories, in which it has settled its inhabitants, suggests a distancing from the concept of occupation in contemporary international law.

Ceased to exist

Concurrent with the emergence of the principles forbidding the use of force and the acquisition of territory by force – along with the centrality of self-determination and human rights – the notion that a state can annex territory captured in war ceased to exist.

In the modern concept, occupation is a temporary situation that is created in the wake of hostilities and does not accord the occupying state sovereignty on the ground. Accordingly, the state is prohibited from applying its laws in these territories and from settling its citizens in them or annexing them.

However, this has not been the case with the Israeli occupation in the territories for a long time. Although Israel did not annex the West Bank, the partial de facto annexation described above effectively achieved the results of annexation but without the price that Israel did not want to pay – that is, granting citizenship to the Palestinian inhabitants or applying Israeli law to them equally.

Once we recognize that the situation in the territories is one of de facto annexation, it becomes clear that Israeli rule there is no longer temporary, as is meant to be the case in occupied territory. A situation that was meant to be temporary has become indefinite in duration.

One can see how this reversal of the arrangement between temporary and indefinite repeats itself over and over again. It is not only the occupation that has been transformed from a temporary situation into one that is unlimited in time: The interim arrangements of the Oslo period – which created an unholy mixture of limited self-rule by the Palestinian Authority and continued Israeli military occupation – were supposed to have been in effect for five years, but were transformed from a temporary situation into one of indefinite duration.

In fact, even the “peace process” ceased to be a temporary state of affairs and became a condition of indefinite duration, even if it is currently in deep freeze.

This reversal makes it possible for situations that are inconceivable other than as temporary, short-term conditions, to continue into what looks like eternity. The absence of a “diplomatic process” allows what the writer David Grossman called the “yellow wind” to go on blowing in the territories.

But even if the peace process resumes, there is no guarantee that the resulting situation will be anything other than an endless continuation of what was supposed to be temporary, in a form that goes on denying the dignity, freedom and equality, and often life itself, of the Palestinian population.

The writer is a Law Professor at Tel Aviv University and Haaretz’s legal commentator.



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