I'd really like to be angry at Dorit Beinisch, the chief justice of the Israeli Supreme Court. On the eve of her retirement, Beinisch abandoned her role of pushing the Israeli government to honor legal restraints in the occupied territories. Instead, in what could be her last major ruling on Israeli actions in the West Bank, she has given a stamp of approval to colonial economic exploitation.
But let's put petulance aside. One message of Beinisch's judgment is that judicial resistance can stretch only so far. Even the highest tribunal in the land cannot reverse a national policy as basic as continuing to rule the West Bank. Another message—whether or not Beinisch intended it—is that treating a situation that has lasted 44 years as "temporary" is absurd. The occupation is not an acute disease; it is a chronic one.
Beinisch's ruling came in a suit filed three years ago by the Israeli human-rights group Yesh Din, based on the work of land-use researcher and activist Dror Etkes. The suit asked for an order stopping ten Israeli companies from operating quarries in Area C, the portion of the West Bank under full Israeli control. (The autonomous Palestinian Authority administers the land designated Areas A and B.) Most of the rock taken from those quarries is trucked into Israel for use in construction.
Yesh Din argued that the quarries' operations violated the 1907 Hague Convention on the laws of war. Under the convention, an occupying military power is an "usufructuary”—meaning it can use the fruits of occupied land but must safeguard property and resources. (The usufructuary of an apple tree could pick the apples but not chop the tree down.) More basically, the suit said, the convention requires the military commander who rules occupied territory to act for the good of the local inhabitants, not for the occupier's economic interests. Prima facie, carving out West Bank rock for Israeli profit breaks that rule.
Implicitly, the case pointed to wider issues. Officially, the West Bank has been under temporary military rule awaiting a diplomatic accord on its future since Israel conquered it in 1967. The policy that most obviously contradicts this official status of limbo is the building of Israeli settlements. But Israel has also made the West Bank a captive market for its products, even as it restricts Palestinian industry. Palestinian firms have not been allowed to join Israel and Jordan in extracting potash and bromide from the mineral-rich waters of the Dead Sea. And Palestinians buy cement (a manufactured good) from Israel, while Israeli firms extract gravel (a raw material) from West Bank quarries.
Beinisch seemed like just the justice to challenge this arrangement. Her judgments include ordering the demolition of Migron, the best known of West Bank settlement outposts established in defiance of local law. She has blasted the government for failing to carry out previous rulings against outposts. She wrote the ruling in favor of the West Bank village of Bilin, requiring the government to move the massive security fence running through its fields. Beinisch's record has infuriated the parliamentary right, which this week passed a law to ensure that a more conservative judge will succeed her as chief justice.
But Beinisch accepted the government's argument that the quarry question was political and diplomatic, not judicial. Under the 1995 Oslo II accord, she wrote, Israel and the Palestinian Authority (PA) are supposed to negotiate the future of the quarries.
Beinisch could have stopped with this technical reason to reject the suit, but she couldn't resist addressing its merits. Since the Israeli occupation was "formally temporary, but certainly long-term," the laws of occupation had to be adjusted, she said. The military commander had to act for the good of the local population and allow economic development. The quarries' products are used in the West Bank and Gaza as well as Israel, and the royalties they pay help finance services by the Israeli Civil Administration, she noted. So they could keep working, as long as the government didn't license new quarries.
Law professors will parse many paradoxes in this judgment. I'll stick to one: the contradiction between "temporary" and "long term." Those concepts don't go together. In normal human affairs, 44 years isn't temporary. That's three-fifths the life span of the Soviet Union and longer than East Germany lasted as a country. Beinisch entered the bar after the occupation began. She is retiring before it ends. When Israel conquered the West Bank, neither personal computers nor cell phones existed. Economic development is certainly needed. But expecting the military commander to administer development as if he were the elected representative of the local population rather than an agent of the Israeli government makes less sense than expecting the West Bank to export snow to Siberia.
Reading the ruling, I wanted to shout at its author: Your Honor, tell them they can't maintain the fiction of temporary occupation. Tell Prime Minister Benjamin Netanyahu's government to annex the West Bank and give Palestinians the vote, or to withdraw, or to resume serious peace negotiations with the Palestinians—or for heaven's sake, at least to admit that it has no intention of doing any of these things and that it regards the wretched reality as permanent.
Of course, a court can't make such a ruling. It turns out that a politically embattled court cannot even tell the government to close the quarries or to compensate the Israeli owners and turn the operations over to the PA to develop (or close down) as it sees fit. Besides the fact that the judiciary can't set policy, it can't order Israeli-Palestinian diplomacy to succeed. The hidden profit from Yesh Din's suit is that Beinisch's ruling points out the injustice, the simple absurdity, of a temporary occupation that lasts forever, even if the court failed to provide redress.
But it shouldn't have to. The donor countries to the PA—including the United States—could demand that Israel turn over control of natural resources and industrial development to the Palestinian government in Ramallah so that it can get off the dole. The Israeli political opposition, starting with Kadima leader Tzipi Livni, could finally explain to Israelis in short sentences containing large numbers that they are paying for settlements and military occupation while private companies skim off a profit. Palestinian leaders who have begun talking about mass, unarmed resistance could start by organizing sit-ins on the roads from the quarries. The court's impotence is infuriating because the political actors have failed to act.
In June 1967, at an Israeli cabinet meeting a week after the West Bank was conquered, Justice Minister Ya'akov Shimshon Shapira mocked proposals from cabinet colleagues to maintain permanent Israeli rule of the territory while giving the Palestinians local autonomy. In "a time of decolonization," he demanded, "who’s going to accept that?" That's still a good question, and not just for Chief Justice Dorit Beinisch.
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