Opinion

So Pompeo Said It

A religious agricultural-communal settlement in eastern Gush Etzion, West Bank, October 3, 2019.
Olivier Fitoussi

Oom-pah-pah, oom-pah-pah, Trump-Pompeo, Trump-Pompeo. “The establishment of Israeli civilian settlements in the West Bank is not per se inconsistent with international law.” The Trump-Pompeo declaration is worth about as much as the statement that the Earth is flat. Trump-Pompeo can push on the Earth from both sides, rest their chins on it until their faces turn as red as a ripe strawberry – and the ball will remain round. Or elliptical, to be more precise.

But the declaration brings back into our consciousness the question, which in the past was asked many times in the Supreme Court: What is the source of the legal authority by which the State of Israel imposes a military government on some two and a half million people, who have been born and died, who are being born and dying for the 52 years in the occupied territories? In recent years the question has disappeared. It happened when the military government of the occupied territories became almost obvious, and the territories were absorbed into the scarred tissue of Israeli society. So much face lifting. So much concealment.

Anyone who is searching through Knesset legislation will not find any mention of the occupied territories, the military governor, military orders, checkpoints, banned entry, work permits, wanted men, prisons, courts, the authority of the Shin Bet, arrests, imprisonment, administrative detention, family reunification, family separation – nothing of the daily life of the residents of the territories, which is completely controlled by the military government, is to be found in legislation, only in the directives of the military governor. Beginning on June 6, 1967, from the first order on the arrangements of government and law, which was signed by Maj. Gen. Chaim Herzog, the first military commander of the territories – and up through today.

Thousands of directives and orders, which were issued under the authority of the international law that regulates the control in occupied territory, according to which every country of the culture that learned the lessons of the Great War and World War II, which are included in the Hague Conventions and the Fourth Geneva Convention of 1949 – which Israel signed, but the Knesset never approved – discuss the protection of a civilian population during war between nations or under belligerent occupation. The Geneva Convention forbids deportations and house demolition, and especially the transfer of the population of the occupying nation to the occupied nations, out of the understanding that such a transfer – or encouragement of the movement of the population from the occupier to the occupied – will necessarily create a situation in which the local population has an inferior status than the population of the occupying country.

International law is the source of the authority of the military commander. Not a divine promise, not a messianic vision, but the law of nations, which wanted the Geneva Convention to protect the occupied population, who are called in the convention “protected persons,” because the authors knew how vulnerable and weak the residents of the occupied territories were, how much they were subject to the good will of the conqueror, who viewed them as enemies. International law granted the occupier the rights of the legislator, judge and punishment – but limited its power to harm the population under its protection with dozens of directives. It does not matter is the occupied territories are ours because they were always ours, or because they did not belong to any country – a claim that was accepted by the committee headed by former Supreme Court Justice Edmond Levy. Either way, if they “belong to us,” then why are they not subject to the legislature, instead of a military government? The former president of the Supreme Court, Meir Shamgar, who dreamed up the occupied territories as the military advocate general, as the attorney general and as president of the Supreme Court, saw his dream fulfilled – the territories would be subject to the grace of the military commander but would not damage the democratic nature of Israel – and with more than just a bit of his help.

International law does not permit the occupier to confiscate thousands of acres of land that are not privately owned, and build cities and communities populated by the occupiers who enjoy all the civil rights of the occupying nation, including the right to vote for their representatives in the Knesset, to be members of Knesset themselves, ministers, judges in the military courts judging their neighbors, the “protected” local residents, and justices of the Supreme Court that is asked to and approves the actions of the military commander.

The main point is that international law views all the military arrangements in the occupied territory as a temporary situation, which is supposed to end a short time after the end of the situation of belligerency. None of its authors imagined the continued existence of a military government, which the local population has no democratic ability to influence, and has no representation in any governmental branch, except possibly for the mayors who have minimal authority – over the period of two generations.

The Supreme Court has also ruled that any action in the territories requires temporariness, impermanence. For this reason, Justice Moshe Landau in 1979 ordered the evacuation of the settlement of Elon Moreh in the northern West Bank, because the leaders of the settlers came to the Supreme Court and said in their affidavits that they had no intention of ever leaving the site. The assumption that Elon Moreh was evacuated because it was built on privately-owned land has taken root, and as a result the settlements that have been established on “state land” are an exception to this ruling. But in truth, Elon Moreh was evacuated because it was not temporary, and the claim that it was built to provide regional defense for the area from a Jordanian invasion was revealed to be a lie.

At least twice in my cases, the Supreme Court was required to discuss the legality of the settlements on state-owned land, and twice it evaded deciding based on the claim that this question was not justiciable. The most imperialist Supreme Court, which ruled that everything is justiciable, retreated bashfully from deciding on the question of the legal status of the settlements.

Trump-Pompeo, which seems based on the legal opinion of the legal department of the State Prosecutor’s Office or the international law department of the Military Advocate General’s office, mumbled something about the Israeli Supreme Court recognizing the legality of some of the settlements while banning other settlements – and apparently meant the settlements on state-owned land as opposed to the settlements on privately-owned land – but this is baseless. The Supreme Court ruled that permanent settlements must not be established, and only temporary actions of the military commander, which are intended to carry out his position as the protector of the protected persons in the area, are allowed – and I smack my forehead and wonder if the time hasn’t come to go back to the Supreme Court and ask if the settlements are legal. I have been waiting in line for 52 and a half years. I deserve an answer from the authorized agent of the law.