Opinion |

The Occupation Is a Political Matter, Not a Legal One

A just solution must consider Israel’s security and identity needs. From the perspective of international law, the Palestinians have no ‘right’ to end the occupation, which was the result of a defensive war

Ruth Gavison
Ruth Gavison
Israeli soldiers block the entrance to the Hebron's Jewish neighborhood, in the West Bank, September 18, 2016.
Israeli soldiers block the entrance to the Hebron's Jewish neighborhood, in the West Bank, September 18, 2016.Credit: HAZEM BADER/AFP
Ruth Gavison
Ruth Gavison

We are marking the 50th anniversary of the Six-Day War and Israeli security forces’ control over part of the territories captured during that war: the Golan Heights and the West Bank (or Judea and Samaria). For more than two generations, young people have been born into this reality in which Israel acts as the proprietor in the West Bank.

Most Israelis, Jews and Arabs, no longer remember the reality in which the Jewish people had a state in only part of the Land of Israel. The argument over the future of the territories is ripping apart Jewish society in Israel. It’s not at all clear that Israeli democracy has the strength to decide on this issue, or even to conduct the argument without irreparably splitting Israeli society.

I’m one of those who believes that the continuation of this internal rift is a threat to Israel’s ability to remain the national home of the Jewish people in their ancestral homeland. I believe that this jubilee year is a cause for great worry, not celebration.

I understand the spirit of the occupation’s opponents, Jews and Arabs, who have despaired of the chance to change the situation through politics and are therefore trying to turn the question of the occupation into a legal one (with the justification that the occupation is illegal and must end immediately) or one of human rights (with the justification that the Palestinians have the right not to live under occupation, so Israel must end it immediately). Such formulations create the impression that this isn’t a political question that requires a decision and difficult concessions from all parties, but a legal obligation – or at least a moral obligation for Israel that justifies demands that it end the occupation immediately without conditions.

I understand the temptation to phrase things that way. But I think such a step is mistaken and dangerous. It does not advance the end of the occupation but actually deepens the deadlock. It makes us cast our hopes on a debate disconnected from the crucial political, social, cultural and religious processes in Israeli and Palestinian society. It also weakens, on both sides, the fortitude needed for painful concessions based on an agreement between the people and their leaders on what’s the best outcome under the present circumstances.

For Israeli society, such a step blurs the need to distinguish between the deep disagreement about the West Bank’s future and what is shared by the great majority of Israelis (a commitment to Israel’s existence as a democratic state that allows self-determination for Jews despite the theoretical and practical opposition to this in the region). This step creates the impression that the conflict’s just solution is only a matter of identifying the answer based on international law and human rights without referring to Israel’s security, military and identity needs, or to the conditions required to provide a solution for these needs.

Undue pressure on the Israeli side

According to this view, an agreement with the Palestinians isn’t based on painful concessions from both sides but on pressure on Israel to make it do what it must – but refuses to do. Most Israelis continue to express their preference for dividing the land and preserving Israel as a democratic state with a stable Jewish majority.

This is based on the assumption that such a step will change the conditions that led to the war in 1967; Israel will no longer face military and diplomatic challenges that reject its right to exist as the national home of the Jewish people. Adherence to the legalistic and human-rights discourse only convinces Israel’s Jews that they have no one to talk to and nothing to talk about because this isn’t a genuine invitation to negotiations but a demand from Israel for action where the outline of the results is known in advance – and is unacceptable.

At the same time, this devotion blurs the distinction between a human-rights struggle and the political struggle over views and preferences. These two types of struggles are essential in a free and democratic society, and they must be defended from harm by government. Still, there is a big difference – both from within and without – between a political struggle and a human-rights struggle. The political struggle is between people or groups that have preferences, interests or different – and even opposing – viewpoints. In comparison, democracy, the rule of law and human rights are meant to be values accepted by everyone.

Political disputes play a central role in democracy and are decided on in a wide range of channels for discussion, compromise and arrangements in the political system, which includes the principle of majority rule. Defending the rule of law, democracy and human rights is also in the hands of political and social institutions, but lawyers and the courts, which are not elected institutions, play a special role in protecting them.

Translating the question of the occupation into the language of the law and human rights conceals the political, security and ideological aspects that are supposed to be decided in the political arena. This is how in Israel, part of the battle against the occupation has taken the form of legal wrangling whose goal is to remove Jewish residents from the places claimed to be illegal, or the exposure of Israeli soldiers’ violations of the laws of war.

Accordingly, civil society organizations depict their fight against the occupation as a fight for human rights or the rule of law. This difference has implications both in Israel and abroad. Countries aren’t supposed to intervene in political struggles in another country. But if there is a violation of human rights or democracy itself – which are “international” values – the ban on intervention is weakened. And many Western countries rely on this distinction when they finance civil society groups in foreign countries.

Political acts vs. human rights

But of course classifying the issue as a matter of democracy or human rights is controversial in itself. The results of this dispute can be a sweeping, indiscriminate and ineffective struggle in favor of or against the organizations that describe themselves as human-rights groups but clearly take sides politically. This is without a doubt the situation in Israel. The ambiguity between a political act against the occupation and the struggle for human rights could weaken the latter because the struggle’s unique strength is its nonpartisanship.

Some aspects of democracy and human rights are related to the continuation of the occupation. A human-rights problem can be found in Jewish settlement on private Palestinian land. But from the perspective of international law, the Palestinians have no “right” to end the occupation – which was the result of a defensive war – and Israel has no obligation to end it without a peace agreement. This isn’t just an interpretation of the legal situation. It’s the necessary conclusion from the UN efforts to create incentives against the unjustified use of force.

Few people today remember the circumstances of 1967 that led to the occupation. But Israel has the right and obligation not to act in a way that could expose it and its people to security and diplomatic risks, which must be reduced significantly in a binding agreement ending the occupation. All parts of Israeli society must stand together on this issue.

So it seems to me that it would be best for Israeli society if we agreed to conduct the fight against the occupation as a political battle. After all, there are extremely serious justifications for ending the occupation or limiting it that don’t touch on the Palestinians’ rights at all. Instead, they relate to the conditions necessary for Israel to be a democracy where Jews enjoy their right to self-determination in their historical homeland.

This isn’t a legal dispute, it’s the most important political dispute that Israeli society must address – and in a way that does not rip it apart irrevocably. At the same time, the supporters of the Greater Land of Israel must be committed to the rule of law, human rights and purity of arms. Such a consensus would preserve Israel as a more free and democratic society. It would also let us more seriously address the challenges and implications of the long drawn-out occupation.

Prof. Ruth Gavison, an Israel Prize winner for her legal research, is an emeritus professor of law and holder of the Haim Cohen chair for human rights at the Hebrew University of Jerusalem.

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