Was There an Occupation?

The right to a day in court will not only be taken away from those without a passport; those who speak in a "minority" accent will likewise find the courthouse doors locked.

All told, what did the justice minister really want to do? Insert a small correction. Clerical. Fair, like most of the minister's ideas. Courts, he decided, cannot review claims that do not cite the identity card number or passport number of the plaintiff. Yet this is no naive directive. It is designed to nullify the basic rights of thousands of work migrants and residents from the territories. It will stop them from lodging claims in Israeli courts. One small step for bureaucracy, one giant leap for the occupation.

Paradoxically, the new directive symbolizes candor and integrity. At long last the State of Israel is starting to peel away the mask of duplicitous morality it has been wearing. Since 1967, Israel has rejected the "accusation" that is an occupying power. In fact, in a magnanimous outburst, it adopted the Geneva Convention and other international accords regarding the rights of residents "as though" it were involved in an occupation. The peak of its magnanimous posture was reached when the state opened the doors of the High Court of Justice to Palestinians, whether they had Israeli identity cards or not.

Most High Court decisions ratified the negation of Palestinian rights, and proffered legal legitimacy to military activities, even ones that brought about damage to life and property. The decisions served merely to clarify for the occupier how and when it might expropriate lands. This cloak of formal justice worked perfectly. The fact that Palestinians could pursue claims in court "proved" to Israelis that Palestinians enjoy rights. Justice was served. Palestinian appearances in Israeli courts became excellent propaganda material.

Of course, nobody wondered why Palestinian residents needed to appear in Israeli courts when they are subordinate to an occupying power that subscribes to international accords. After all, the state was required under those accords to protect the life, property and rights of Palestinians. In most instances, justice of a bullying sort was meted out. This was justice akin to the way things are settled in underworld arbitration.

Now, the state believes, the time has come to go one step further and realize the old dream of an occupation "without the High Court and without B'Tselem." A true bully doesn't have to wear a costume. From now on, the state will decide who is barred from bringing matters to an arbitrator, and it has hatched a brilliant scheme to claim this prerogative. A resident from the territories who wants to lodge a protest against this new directive in the High Court will not, of course, be able to do so, since the High Court will be barred from considering claims made by plaintiffs who do not have a passport.

This new directive is not perfect. Much to the chagrin of the justice ministry and Israel's government, it leaves too much latitude for potential Palestinian plaintiffs. Still, when it joins up with the finding of retired Supreme Court Justice Edmond Levy, who chaired the committee reviewing the status of the illegal outposts, that Israel "is not an occupying power," the suffocating intentions of its makers become clear. While Levy's claim is not a law, it nonetheless reveals where the weathervane of Israeli law is pointing; Its spirit makes clear that Israel no longer feels obliged to comply with international accords. The heavy tome that Levy released also proposes to nullify the High Court's 1979 ruling that banned the expropriation of lands for ostensibly military purposes and then to build settlements on them; in fact, the tome seeks to negate all rulings, orders and regulations that have, up to now, stopped settlers from settling anywhere they want in the territories.

The legal argument underlying these outrageous judgments holds that international accords apply to short-term occupations for the purpose of upholding the rights of the occupied until the dispute is resolved, whereas the Israeli occupation has continued for decades and its end is not in sight. In fact, the committee raced far ahead of right-wing political extremists. There is no occupation, it declared - or, if there is one, the necessity of it cancels out its existence.

Should the committee's recommendations be upheld, Israeli courts, particularly the High Court, are liable to be deluged by claims submitted by Palestinian residents - those who have passports and those who do not - who seek desperately to cling to the last glimmer of their rights. The justice minister foresees this scenario, and so his new policy would shorten the current line of High Court petitioners. Now, the only thing left to do is complete the directive. The right to have one's day in court will not only be taken away from those without a passport; those whose names sound "Middle Eastern" and who speak in a "minority" accent will likewise find the courthouse doors locked.