Forty Years after 1967: Reappraising the Role and Limits of the Legal Discourse on Occupation in the Israeli-Palestinian Context

Israel Law Review, Vol. 41, pp. 6-12, 2008

Hebrew University International Law Research Paper No. 22-08

8 Pages Posted: 5 Nov 2008

See all articles by Yuval Shany

Yuval Shany

Hebrew University of Jerusalem - Faculty of Law and Institute of Criminology; Israel Democracy Institute

Date Written: November 2, 2008

Abstract

The law of occupation, as largely codified in the 1907 Hague Regulations on the Laws and Customs of War on Land and the 1949 Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War, has traditionally strived to protect the basic rights and interests of the population of occupied territories through the introduction of legal standards which serve as constraints on the power of the occupying force. At the same time, the laws of occupation confer upon the occupier considerable powers of government, which it may (and sometimes must) exercise in lieu of the displaced sovereign state. Still, in some, if not most instances where the law of occupation is applied, the rights and interests of the local population appear to remain under-protected and the occupier arguably fails to satisfactorily exercise its governmental authorities. This begs the question to what extent do the specific norms and principles of the law of occupation and the legal discourse that affects their application actually shape reality under conditions of conflict and occupation. The 40th anniversary of the Israeli occupation of the West Bank and Gaza Strip, marked in 2007, presents a unique opportunity to take stock and critically assess the impact of legal rules and the legal discourse in situations of occupation. This is because the Israeli occupation over the West Bank and Gaza Strip has some singular features, which seem to make it a particularly useful case study for examining the role and limits of the laws of occupation and the legal discourse in which it is anchored. First, the exceptional length of the Israeli occupation introduces an important temporal factor, which could highlight some of the deficiencies associated with the laws of occupation (such deficiencies may not appear in shorter occupation situations). The time factor is accentuated by the many turbulences, which took place over time in the West Bank and Gaza Strip - uprisings, colonization, power sharing arrangements, partial withdrawals, etc. Consequently, many problems related to the model of government and other underlying assumptions informing the occupation law discourse are bound to reveal themselves in such a prolonged and mutating form of occupation.

Second, the Israeli occupation is exceptionally legalized. It is the most conspicuous long-term occupation situation in which the occupier has accepted the applicability, at least de facto, of a significant part of the body of laws of occupation (it may be noted, by way of contradistinction, that the laws of occupation were not applied by Israel in the Golan Heights or East Jerusalem); furthermore, the Israeli authorities have also opened up the doors of Israeli courts for petitions filed by residents of the occupied territories alleging violation of the international laws of occupation and/or Israeli administrative law (which binds all Israeli state agencies, including the military). Indeed, many thousands of petitions have been filed to date before the Israeli Supreme Court, challenging a wide variety of measures taken by Israel in the Occupied Territories. This, in turn, increased the influence and prominence of the legal discourse relating to the occupation and created significant expectations as to the power of law to shape reality on the ground.

The fact that Israel is generally committed to the rule of law in its internal affairs, adds another important dimension to the assessment of the utility of the legal discourse in occupation-related matters. Given that law is generally respected in Israel, failure of the laws of occupation to meet their humanitarian goals - as had arguably occurred in the West Bank and the Gaza Strip - might derive from intrinsic reasons related to the shortcomings of that body of law of occupation, and not from extrinsic reasons pertaining to the general status of law per se in Israel.

Third, the geopolitical situation in the West Bank and Gaza Strip differs from the classic paradigm of the law of occupation in some important ways. Most significantly, Jordan and Egypt - the two nations from which the area was seized in 1967 - have renounced any claim of title over the territory and have supported the self-determination claims of the Palestinians. In addition, Israel itself has claimed sovereignty over parts of the occupied area (most notably, East Jerusalem). These complicating factors render the Israeli occupation an interesting case study for reviewing the elasticity of the laws of occupation and the limits of such elasticity: To what degree can such laws accommodate circumstances unforeseen at the time in which the principal treaties were formulated? To what degree do the laws possess correcting mechanisms that facilitate their periodic updating?

Keywords: occupation, israel. palestine, IHL, military, international law, gaza', west bank, ILR

Suggested Citation

Shany, Yuval, Forty Years after 1967: Reappraising the Role and Limits of the Legal Discourse on Occupation in the Israeli-Palestinian Context (November 2, 2008). Israel Law Review, Vol. 41, pp. 6-12, 2008; Hebrew University International Law Research Paper No. 22-08. Available at SSRN: https://ssrn.com/abstract=1293953

Yuval Shany (Contact Author)

Hebrew University of Jerusalem - Faculty of Law and Institute of Criminology ( email )

Mount Scopus
Mount Scopus, IL 91905
Israel
972 2 5882541 (Phone)
972 2 5823042 (Fax)

Israel Democracy Institute ( email )

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