An Israeli ‘norms bill’ : next step in further annexation of the West Bank

source: Legal Forum for Israel (2016). “Legal Forum Annual Conference 2016.” Available at: http://www.haforum.org/825-2/ [Accesed 18 May 2016].

On the first of May 2016 Ayelet Shaked, Israeli Justice Minister and member of Bayit Yehudi, announced her ambition to revive earlier attempts for assimilation of the legal status of colonizers in the West Bank to that of Israeli citizens. If this announcement materializes into the passing of a so called ‘norms bill’, this would constitute yet another step in Israel’s policy of apartheid in the occupied Palestinian territory, and de facto annexation to the state of Israel. The passing of a ‘norms bill’ further erodes international law as applicable to the occupying power in a situation of belligerent occupation.

Legal rule of a belligerent occupant

Article 43 of the Regulations Respecting the Laws and Customs of War on Land, annexed to the Hague Convention (II) of 1899 and (IV) of 1907 regards legislative obligations of the occupying power during belligerent occupation.^[1]

“The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.”

The occupying power’s executive and judicial branch of the Military Government is obliged to restore and ensure, as far as possible, public order and life in the occupied territory. The occupier’s legislative branch is obliged to respect the laws in force in the occupied territory except in the case of “empêchement absolu”. When a necessity arises, Israel is allowed to enact new legislation, as well as to repeal, suspend, or modify pre-existing laws. The laws or amendments introduced are to be enforced by the military governor and remain in force as long as the occupation lasts and not longer than this stretch of time.

Article 64 of the 1949 Fourth Geneva Convention displays the terms of Article 43 of the Hague Regulations more precisely. Israel can legally suspend or repeal existing law, as well as enact new legislation (1) when there is the need of the Occupying Power to remove any direct threat to its security and to maintain safe lines of communication; (2) when it touches upon the duty of the Occupying Power to discharge its duties under the Geneva Convention; and (3) in case of the necessity to ensure the “orderly government” of the occupied territory.

Current dual legal system in the West Bank: different laws for ‘different people’

Since Israel took over the West Bank in 1967, it applied different legal frameworks on persons according to their ethnicity. Regarding the application of distinct legal frameworks on colonizers and Palestinian residents in the West Bank, justice Dorner of the Supreme Court of Israel in HCJ 548/04 Amana v. Commander of IDF Forces in the Judea and Samaria Area stated:

“The main thing to me is the different status in the areas of Judea and Samaria of Israeli citizens and the local population…Israeli legislation has distinguished between the status of Israeli citizens and the status of the local population by applying to the Israelis personally the laws of the state of Israel, except for legislation concerning land. Even the gap concerning land was narrowed down by the Military Commander, who granted the Israeli settlements in Judea and Samaria the powers of a local government…without giving the local [Palestinian] communities in the same area equivalent powers or making them part of the Israeli  Councils…under these circumstances, the different treatment of the two populations does not constitute discrimination, but a permissible distinction, based on the relevant difference between them“^[2]

By mouth of justice Dorner separation and segregation is justified by internalizing – on jurisprudential level – “differences” between the local population and colonizers living in the same area. Such a clear separation of law along racial lines is entirely compatible with the legal definition of apartheid.^[3] General Officer Commanding (GOC) decrees function as a proxy for giving effect to Israeli civil and criminal law to colonizers in the West Bank.^[4]

Applicability of Israeli Administrative Laws to colonizers in the West Bank amounts to assimilation of the legal status of colonizers to that of Israeli citizens – while Palestinian residents are governed by a mixture of military orders and Jordanian administrative laws. Israeli criminal and detention law as well as the right to due process follows the logic of personal application the occupied territory, while military law follows territorial application. This leads to colonizers enjoying more guaranteed rights than Palestinians. A case in point is the fact that colonizers are brought before civil courts, while Palestinians are – in suspicion of participation in the same conduct – brought before military courts. Differences in legal protection are further obvious in: the authority to arrest a suspect, the maximum period of detention prior to trial, the right to an attorney, minimum due process protections at trial, the maximum applicable punishment^[5] and release prior to completion of a sentence.^[6]

Inequality between colonizers and Palestinians is situated moreover in the domains of traffic law, freedom of expression and protest, planning and building, restrictions on freedom of movement, immigration policy and the freedom to choose a place of residence.^[7]

A norms bill: the same wine in new bottles..

At a conference in Jerusalem organized by the Legal Forum for the Land of Israel Israel’s Justice Minister, Ayelet Shaked, stated on the first of May 2016 that she sees it her duty to pass a bill that effects in every law being passed in the Knesset having direct application in the colonies in the West Bank. Shaked, member of the right-wing Bayit Yehudi, made it clear that she dedicates her staff to elaborating this assimilative bill within one year from now.  The idea was met with vehement opposition by senior ministry staff, including former attorney-general Yehuda Weinstein.^[8]

Shaked merely follows in the footsteps of her predecessors. Meir Shamgar, designer of the legal infrastructure in the West Bank in 1967 and president of the Supreme Court from 1983 until 1995 recommended this approach. Former military advocate general Maj. Gen. (res) Danny Efroni in 2014 urged the Israeli attorney general in a letter to apply this approach of extraterritorial application of Israeli law.^[9] During Netanyahu’s last term, a norms bill pursuing the extraterritorial application of Israeli law was brought before the Ministerial Committee for Legislation by MKs Orit Strook and Yariv Levin. Due to the objections of then-Attorney General Yehuda Weinstein, Netanyahu suspended the move, and it remained that way until its recent reintroduction.^[10]

Shaked did not discuss the bill with Israel’s Ministerial Committee for Legislation, but she disclosed that she has spoken to former Chief Justice Aharon Barak regarding the possibility of signing in a basic law that would allow the Knesset to circumvent rulings made by the High Court, adding that at present there is a disagreement over the size of the MK majority that should be needed in order to pass legislation that bypasses the High Court’s decisions.^[11]

It is not clear whether assimilation would take place by virtue of the legislation itself or by an order of the military rule.^[12]

… with a bitter aftertaste.

Besides the Zionist Union by person of MK Tzipi Livni being concerned about a scenario of a bi-national state with a possible Palestinian majority in the Knesset,^[13] the idea of official direct legal assimilation of colonizers with Israeli citizens raises some fundamental legal and political concerns.

The “necessity” exception of article 43 of the Hague Regulations allows Israeli legal interventions, through the military commander, in order to remove any direct threat to Israel’s security, to discharge Israel’s duties under the Geneva Convention, and in order to maintain “orderly government” in the occupied territory. None of these can be legally pursued by the installation of constitutionalized discrimination in the form of a dual legal system based on racial criteria.

A norms bill furthers a system that already threatens the future of a possible two-state solution. A final status agreement was supposed to be concluded years ago under the terms of the Oslo Accords, which gave temporary legitimacy to the colonies. The personal applicability of Israeli civil and criminal law by proxy of military orders in the West Bank signals the death of any of the 1995 agreed upon provisions. A norms bill transfers sovereignty directly to the Knesset – in direct contravention of international law provisions regarding belligerent occupation. This heralds the definitive burial of the proclaimed two-state solution.

Extraterritorial application of Israeli law, including land laws and planning and zoning laws serves Israel’s right wing expansionist ideology in trampling two constitutive aspects of legal belligerent occupation: temporality and the sovereignty not being transferred to the hostile power. Implementing the norms bill constitutes one more step in the crawling annexation of the occupied Palestinian territory.

Extending assimilation of illegal colonizers with the legal status of Israeli citizens does strengthen colonizers’ impunity in the West Bank, widens the gap between legal status of colonizers and Palestinian residents, and intensifies the culture of fear. This results in pushing the already harsh living conditions of the communities in the West Bank to its limits, threatening many more lives.

As to the legal effects of the statement of Shaked, members of the Joint List expressed their fear that the bill would be passed regardless of any opposition. Even if the government is not in support of the bill, there would be enough members of the opposition to grant support of the bill in order for it to pass.^[14]

The norms bill would affect particularly building and planning in the occupied territory. Today Israeli land laws and planning and zoning laws are not applicable in the West Bank. Although the Israeli Supreme Court fills in some gaps in illegal extraterritorial application of Israeli legislation, the bill would afford for direct general application of land, zoning and planning laws passed in the Knesset.

What it comes down to

The passing of the norms bill as proposed by Shaked, is in direct breach of international law.

1. Direct assimilation of the legal status of colonizers in the occupied Palestinian territory with that of Israeli citizens further averts from the proclaimed two-state solution. This political change of direction cannot be decided upon unilaterally.
2. Conveying legal sovereignty over the occupied Palestinian territory directly to the Knesset breaches the fundamental principles of belligerent occupation: temporality and the prohibition of transfer of sovereignty to the hostile power.
3. Extension and elaboration of the dual legal system in the West Bank, based on racial criteria does amount to apartheid.
4. The passing of the norms bill accelerates de facto annexation as is already taking place today.

It is therefore recommended for third state parties, non-governmental organizations and other stakeholders to apply pressure on the State of Israel to renounce any norms bill.

[1] For a more detailed discussion, see: Dinstein, Y. (2004). Legislation Under Article 43 of the Hague Regulations:Belligerent Occupation and Peacebuilding. Program on Humanitarian Policy and Conflict Research, Harvard University, Occasional Paper Series, p. 1-8.

[2] HCJ 548/04 Amana v. Commander of IDF Forces in the Judea and Samaria Area, 58(3) PD 373, 380.

[3] Khalel, S. (2016). “Critics slam Israeli proposal for dual legal system“. Al Jazeera, 6 May 2016. Available at: http://www.aljazeera.com/news/2016/05/critics-slam-israeli-proposal-dual-legal-system-160506113800584.html [Accessed 18 May 2016].

[4] Tsimuki, T. (2016). “Shaked Seeks to Apply Israeli Law on West Bank Jewish Settlers.” Ynet News, 2 May 2016. Available at: http://www.ynetnews.com/articles/0,7340,L-4798296,00.html [Accessed 18 May 2016].

[5] See for example the petition in HCJ 4057/10 Association for Civil Rights in Israel v. Military Commander in Judea and Samaria, submitted on 25 May 2010.

[6] Adamczyk, S. (2013). Driven Out. The Continuing Forced Displacement of Palestinian Residents from Hebron’s Old City. p. 43. Norwegian Refugee Council. Available at: http://www.nrc.no/arch/_img/9208359.pdf [Accessed February 22, 2016].

[7] Association for Civil Rights in Israel (2014). “One Rule, Two Legal Systems: Israel’s Regime of Laws in the West Bank.” Available at: http://www.acri.org.il/en/wp-content/uploads/2015/02/Two-Systems-of-Law-English-FINAL.pdf [Accessed 18 May 2016].

[8] Harkov, L. & Bob, Y. J. (2016). “Ayelet Shaked: Apply Israeli Law to the West Bank within 1 Year.” The Jerusalem Post, 2 May 2016. Available at: http://www.jpost.com/Arab-Israeli-Conflict/Justice-Minister-Shaked-Apply-Israeli-law-to-West-Bank-within-1-year-452847 [Accessed 18 May 2016].

[9] Lieber, D. (2016). “Plan to Apply Israeli Law in West Bank: Equal Roghts or Creeping Annexation?” Times of Israel, 2 May 2016. Available at: http://www.timesofisrael.com/plan-to-apply-israeli-law-in-west-bank-equal-rights-or-creeping-annexation/ [Accessed 18 May 2016].

[10] Tsimuki, T. (2016). “Shaked Seeks to Apply Israeli Law on West Bank Jewish Settlers.” Ynet News, 2 May 2016. Available at: http://www.ynetnews.com/articles/0,7340,L-4798296,00.html [Accessed 18 May 2016].

[11] Tsimuki, T. (2016). “Shaked Seeks to Apply Israeli Law on West Bank Jewish Settlers.” Ynet News, 2 May 2016. Available at: http://www.ynetnews.com/articles/0,7340,L-4798296,00.html [Accessed 18 May 2016].

[12] Legal Forum for Israel (2016). “Legal Forum Annual Conference 2016.” Available at: http://www.haforum.org/825-2/ [Accesed 18 May 2016].

[13] Harkov, L. & Bob, Y. J. (2016). “Ayelet Shaked: Apply Israeli Law to the West Bank within 1 Year.” The Jerusalem Post, 2 May 2016. Available at: http://www.jpost.com/Arab-Israeli-Conflict/Justice-Minister-Shaked-Apply-Israeli-law-to-West-Bank-within-1-year-452847 [Accessed 18 May 2016].

[14] Touma-Suleiman in Khalel, S. (2016). “Critics slam Israeli proposal for dual legal system“. Al Jazeera, 6 May 2016. Available at: http://www.aljazeera.com/news/2016/05/critics-slam-israeli-proposal-dual-legal-system-160506113800584.html [Accessed 18 May 2016].

A train from Al-Khadr to Al-Quds

Today, 15 May 2016, marks the bitter 69^th anniversary of the Nakba, the catastrophe that befell Palestinians in 1948 and that Israel keeps pursuing on a day to day basis. Israel forcibly displaced Palestinians in 1948, in 1967, in between and up till now. The creation of coercive environment is a major means for forcible displacement. A coercive environment refers to an environment that is so intolerable in all its aspects that Palestinians are often left with little option but to leave their homes and communities.[1]

Ongoing Nakba since 1917

One of the Israeli policies that amount to the creation of a coercive environment consists out of suppression of resistance. The right to resist is guaranteed in international law as a derived right fro, the “right to peaceful assembly” (article 20 UDHR, article 21 ICCPR)[2] and “the right of freedom of expression” (article 19 UDHR, article 19 ICCPR). In international customary law the right to resist is based on an amalgam of UN General Assembly Resolutions. Resolution A/RES/3246 (XXIX) of 29 November 1974 confirms the right to resists as follows:

     “3. Reaffirms the legitimacy of the peoples’ struggle for liberation from colonial and      foreign domination and alien subjugation by all available means, including armed struggle; (…)

7. Strongly condemns all Governments which do not recognize the right to self-determination and independence of peoples under colonial and foreign domination and alien subjugation, notably the peoples of Africa and the Palestinian people;” (emphasis added)

International law is clear: Israel is ‘strongly condemned’ by the international community. This however does not refrain it from maintaining suppressive actions whenever Palestinians exercise their right to resist.

The power of resistance is its celebration, not of what is but of what could be. It is the space in which the logic and force of domination is contested by the power of subjective agency to subvert the process of socialization.[3] Today we celebrate what could be: the right of return for displaced Palestinians – internally and over the borders of the occupied territory and historic Palestine. We celebrate what legally speaking should have been accomplished already long time ago: the Palestinian right of self-determination, the Palestinian independence of Israeli colonial domination, the Palestinian right to peaceful assembly, the Palestinian right to freedom of expression. We celebrate these unfulfilled rights that put a shame on the whole international community and that make hollow the whole international and human rights framework.

In the whole occupied territory as well as internationally different actions remember the ongoing Nakba. In Bethlehem a train travelled the road from Dheisheh Camp to Aida Camp. This train pulled wagons that carried the names of the villages from where Palestinians now living in the camps were expelled. Lots of pedestrians accompanied the vehicle, chanting, singing, waving flags. The train stopped at Bab Zkak, a main crossroad in Bethlehem, where the Nakba statement was proclaimed. People greeted each other, national and international media covered the event, journalists and reporters witnessed how peaceful Palestinian gathering and expression of opinion was exercised. The train, the people, the chanting and singing, the flags and the banners amount to subvert the process of socialization of occupation.

Then on it went, towards Aida Camp. When just halfway the straight road to Aida Camp, we heard the first ‘plops’ of gas canisters being fired from the Israeli tower that oversees Aida Camp and its surroundings. People started running back because of the gas. The train kept its track.

A little fire broke out in the garden of the building next to the intercontinental hotel, and an Israeli sniper was located in one of the restaurants on the other side of the street. The Bethlehem fire brigade came and extinguished the fire.

The train managed to return from the Israeli tower and pursued its trajectory into Aida Camp, where it was greeted with more Israeli gas.

Once again we see Israeli suppression in action: gas and snipers in response of Palestinian peaceful assembly and expression of opinion.

Once again we see the importance of the celebration of what should be possible: a train from Al-Khadr to Al-Quds. In a liberated Palestine, in a time and place where existing international and human rights law are observed. Palestinians have had enough of the ongoing Nakba, the ongoing catastrophe of forced displacement and suppression.

#EnoughNakba

 

[1] http://www.badil.org/en/publication/press-releases/77-2016/4586-pr-en-120516-22.html

[2] UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III); UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, vol. 999, p. 171.

[3] Giroux, H.A. (1988). Teachers as intellectuals. South Hadley, p. 162, MA: Bergin Garvey; Giroux, H.A. (1983). Theory and Resistance in education. South Hadley, p. 142, MA: Bergin Garvey.

How (not) to speak on resistance and steadfastness – Palestine.

As Rangitsch (2007) reminds us of: the ongoing Palestinian struggle in resistance and steadfastness constitutes a foundational layer of Palestinian national identity – taking the place of the nation state, which propagates national identity in cases other than the Palestinian one.[1] In order to get a better understanding of the meaning of resistance and resilience, I explore the delineation of concepts.

Resistance (muqawama) can be defined with Giroux as a “personal ‘space’, in which the logic and force of domination is contested by the power of subjective agency to subvert the process of socialization.“[2] The power of resistance is its celebration, “not of what is but of what could be“,[3] and the energy it mobilizes for social change.[4]

“Resilience” or “steadfastness“[5] (sumud) is often directly linked to the Palestinian struggle of decolonization and de-occupation, as a main trait of it. Sometimes understood as creative actions of resisting suppression[6], sometimes referring to simply “being”, persevering, resisting by not fleeing the state, this concept is broadly understood to not contain armed violence. A concise attempted definition of steadfastness can be found in Jamal’s (2005) analysis of Palestinian steadfastness as a political strategy.[7] Jamal describes how steadfastness as a Palestinian political strategy for confronting Israeli policies in the occupied territory took a high flight as soon as in the Palestinian National Committee (thirteenth PNC session) the aim of establishing a Palestinian state in the West Bank and Gaza crystalized. Aiming “to protect the main characteristics of Palestinian existence in the occupied homeland and its national identity in its political, economic, cultural, psychological and ideological forms“, the concept of steadfastness did not refer to mere passive retention of the land and continued presence on it.[8] Steadfastness thus encompasses “the protection of the Palestinian entity in all its aspects on the national soil” – which might refer to active policies of preserving the Palestinian identity in school curricula,[9] ensuring equal access to education,[10] contesting Israeli appropriation of traditional Palestinian food,[11] organizing social and business events from within the Palestinian community without non-Palestinian funding.[12]

Distinction between “resistance” and “resilience” as the former being something active and the latter having a passive character thus falls short of covering the content of these intertwined concepts.

The active – passive scale heralds how definition and delineation of “resistance” and “steadfastness” is a balancing act on the tightrope of substantive sincerity and terminological feasibility. Existing frameworks and definitions need to be critically scrutinized in order for them to keep up with the reality they refer too. In pursuing this however, it is important not to lose out of sight the practical realities that a rights-based approach brings with it in terms of current popular terminology and legally fixed definitions.

Speaking of “steadfastness” as an independent concept apart from “resistance” annihilates every analytical perspective. Positioning “steadfastness” as a form of “resistance” then again draws the ration skew and serves nothing but oversimplification. Working with existing legal frameworks, academic records, top down and bottom up analytics, makes it inevitable to cling to terminological restrictions of the kind of “armed” (or “violent”) versus “unarmed” (or “civil”) resistance. This by times defunct terminological classification however, should not affect a clear and informed substantive apprehension of “resistance” on the one hand and “steadfastness” on the other hand – as well as an understanding of the nature of the relation between the two. I therefor take a step back in order to create some necessary space for conspectus.

I discern “resistance” (muqawama), the contestation of domination by the power of subjective agency, as an instrument of politics of resistance – while “steadfastness” (sumud) is a means of politics of survival. Both resistance and steadfastness are thus instruments, means, by which goals of perseverance are pursued. It is safe to say that ultimately, politics of resistance are in function of politics of survival – in that resistance to dominant policies aims at the survival of a people, at the preservation of a nation.

 

Politics of resistance   Resistance – muqawama

Politics of survival   Steadfastness – sumud

 

This distinction on the level of politics allows to tell apart resistance from steadfastness as to their immediate goals, without losing out of sight the consistency of the concepts. This inclusive frame functions as a lens through which separate operations and activities can be understood – be they labeled as civil, armed, non-violent, violent, popular or institutional resistance – and regardless of who is carrying out the acts of de-adherence to colonial dominance.

With this conceptual framework being meaningful for the sake of substantive sincerity, terminological feasibility demands the utilization of current terminology in its broadest acceptable meaning. In prevailing literature a distinction is made between “civil resistance” (non-violent resistance) and “armed resistance” (violent resistance). Without adhering to this distinction, adaptation of this terminology is functional when exploring the existing legal framework regarding resistance and resilience / steadfastness.

[1] Rangitsch, S. (2007). Tracing Symbolic Discourses of Steadfastness and Resilience: Collective Memory, Social Practice and Palestinian (Trans)Nationalism. Thesis submitted to Central European University Nationalism Studies Program. Master of Arts. Advisor: Rabinowitz. Budapest, Hungary. p. 15.

[2]  Giroux, H. A. (1988). Teachers as intellectuals. South Hadley, p. 162, MA: Bergin Garvey.

[3] Giroux, H. A. (1983). Theory and resistance in education. South Hadley, p. 142, MA: Bergin Garvey.

[4] Sleeter, E. C. (1989). “Multicultural Education As A Form of Resistance to Oppression.” The Journal of Education, Vol. 171, No. 3, 59.

[5]  “Resilience” and “steadfastness” will be used redeemable.

[6] https://www.opendemocracy.net/civilresistance/katherine-hughesfraitekh/nonviolent-resistance-in-palestine-steadfastness-creativity-and-hope (Accessed March, 4, 2016).

[7] Jamal, A. (2005). The Palestinian National Movement: Politics of Contention, 1967-2005. Indiana: Indiana University Press. p. 62.

[8] Jamal, A. (2005). The Palestinian National Movement: Politics of Contention, 1967-2005. Indiana: Indiana University Press. p. 62.

[9] Kestler-D’Amours, J. (2011). “Forced Israeli curriculum violates Palestinian’s education rights.” Electronic Intifada, 17 October 2011, available at: https://electronicintifada.net/content/forced-israeli-curriculum-violates-palestinians-education-rights/10497 [Accessed 5 April 2016]; Barghouti, S. (2009). “Palestinian History and Identity in Israeli Schools.” Available at: http://www.badil.org/en/component/k2/item/1265-palestinian-history-and-identity-in-israeli-schools.html [Accessed 5 April 2016].

[10] Kestler-D’Amours, J. (2011). “Forced Israeli curriculum violates Palestinian’s education rights.” Electronic Intifada, 17 October 2011, available at: https://electronicintifada.net/content/forced-israeli-curriculum-violates-palestinians-education-rights/10497 [Accessed 5 April 2016].

[11] White, B. (2015). “Israel’s obsession with hummus is about more than stealing Palestine’s food.” The National, 23 May 2015, available at: http://www.thenational.ae/opinion/comment/israels-obsession-with-hummus-is-about-more-than-stealing-palestines-food [Accessed 5 April 2016]; Abunimah, A. (2015). “Why Sahlab (and Hummus) still aren’t Israeli.” Electronic Intifada, 6 February 2015, available at: https://electronicintifada.net/blogs/ali-abunimah/why-sahlab-and-hummus-still-arent-israeli [Accessed 5 April 2015].

[12]  Conversation with Jawwad N. from Al-Khalil, on 27 March 2016.

Biblio

Giroux, H. A. (1988). Teachers as intellectuals. South Hadley, MA: Bergin Garvey.

Giroux, H. A. (1983). Theory and resistance in education. South Hadley, MA: Bergin Garvey.

Jamal, A. (2005). The Palestinian National Movement: Politics of Contention, 1967-2005. Indiana: Indiana University Press. p. 62-… .

Rangitsch, S. (2007). Tracing Symbolic Discourses of Steadfastness and Resilience: Collective Memory, Social Practice and Palestinian (Trans)Nationalism. Thesis submitted to Central European University Nationalism Studies Program. Master of Arts. Advisor: Rabinowitz. Budapest, Hungary.

Sleeter, E. C. (1989). “Multicultural Education As A Form of Resistance to Oppression.” The Journal of Education, Vol. 171, No. 3, 51-71.