David Kretzmer
In international law, the law of occupation is based on the assumption that occupation is a temporary solution to a military constraint. The assumption is that within a relatively short period the occupation will end with a political arrangement that will allow the residents of the occupied territory to enjoy their individual and collective rights. The law of occupation attempts to create a balance between the military needs of the occupying state and the interests of the population in the occupied territory. Alongside broad authority given to the military commander in order to ensure public life and public order during the transition period to a peace agreement, serious restrictions are imposed on the occupying state. The idea of temporariness is at the foundation of all the legal arrangements.
The greatest difficulty with the occupation regime that Israel instituted in the occupied territories since 1967 rests in the gap between the formal legal framework of “belligerent occupation” and the political position of all Israeli governments, which have rejected the very concept of occupation. On the one hand, in defending the severe restrictions on the freedoms and fundamental rights of the Palestinian population before the Supreme Court of Israel, the government relies on the formal legal framework of occupation; on the other hand, in every other forum (internal and international) the government denies the status of the territories as occupied territories, and ignores the restrictions imposed on an occupying state. The result is that instead of a temporary regime based on balancing the military interests of the occupying state with the interests of the occupied population, the regime in the occupied territories has become one that allows Israel to control a national group without granting its members the civil, political, and collective rights that all human beings in the modern world are supposed to enjoy.
The international law of occupation forbids the occupying power to settle its citizens in the occupied territory, and to appropriate its resources for its own use. The occupying state is supposed to respect private property, and to act as trustee of public property. Apart from the actual establishment of Israeli settlements in the occupied territories – which received international attention and denunciation – the most significant decision that caused the distortion of the occupation regime was permitting the use of public land for the benefit of the occupying state and its citizens. The initial intention of the military order that empowered the commander to seize government land was to protect land registered in the name of the government of Jordan. However, after the Supreme Court rejected building an Israeli settlement on private property that was seized allegedly for “military purposes”, the Israeli government decided to expand the settlement project to “state land”. The name change – from “government property” as in the original military order to “state property” as in the political decision – exemplifies the distorted concept represented by this decision. While the legitimate government is absent from the occupied territories – and in its place there is a temporary military regime – in Israeli terminology the term “state” refers to only one particular state. This linguistic and political move was not the only part of the government policy; the government also decided to take advantage of loopholes in the Ottoman property laws in order to declare uncultivated land as “state land”. This is how Israel took hold of about 350,000 acres of land that were declared “state land”. Only 0.24% of the “state land” that was allocated for private use was allocated to Palestinians.
The figures on allocation of “state land” reveal the true face of Israel’s rule in the occupied territories. According to international law, and in the view of the vast majority of the international community, Israel is an occupying state. According to the Israeli concept, the Palestinian residents in the territories are under an occupation regime, but the territory itself is not occupied. The result is that despite the formal legal framework, the regime is not really an occupation regime. It is a colonial regime. Or if you wish, an apartheid regime. Those who deny that the West Bank is occupied territory would do well to remember: an occupation regime – resulting from war – is not of itself illegal. Both a colonial regime and an apartheid regime are inherently illegal.
David Kretzmer is an expert in international and constitutional law. He is professor emeritus of law at the Hebrew University of Jerusalem and professor of law at the Sapir College.
He is a founding member of the Association for Civil Rights in Israel and of B'Tselem, and is a past Executive Director of both organizations. He has been a member of a number of international human rights bodies, and was a member of the UN Human Rights Committee.
