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Gad Barzilai
Professor of International Studies, Law, and Political Science in the
Jackson School of International Studies, and the Law, Societies and Justice
Program at the University of Washington.
The Agonizing Absurdity of “Enlightened
Occupation”
The imposition of the Israeli Supreme Court’s [ISC] jurisdiction over OPT cases in the early 1970s was not an absolute mistake,
either for Israelis or Palestinians. The former could use the court, where
convenient, to impose a few restrictions on military operations in the OPT, however insignificant. For Palestinians,
appeals to the ISC in OPT cases were
a means of publicizing some of Israel’s
severe abuses of human rights. Generally, however, the ISC’s formal adjudication
in OPT cases had the damaging
effects of formally legalizing and practically legitimatizing Israel’s military occupation. Palestinian
appeals to the ISC were almost all dismissed and have allowed Israel to argue that its military
control of the OPT falls under the
“rule of law”. It was through the myth of judicial review and the illusion of
the “rule of law” that the dehumanizing oxymoron of a “justified occupation”
was generated.
Now, at the outset of the 21st century, the ISC’s adjudication
of OPT cases is even more
damaging. While Palestinian appeals to the ISC may elicit some out-of-court
settlements, the court will continue to support the status-quo. As the
contradictions between the rulings of the ISC and the International Court of
Justice on the legality of the “Security Wall” demonstrate, rather than providing
Palestinians with a shield of human rights, the ISC is shielding the state from
effective judicial review. In fact, ending the ISC’s jurisdiction over the OPT may stimulate Palestinians to file more appeals
to international courts. Equally, it may force Israelis to acknowledge, more
directly, the brutal reality of the damage that the occupation has inflicted on
human rights and principles of democracy, in Israel as well as the OPT. Finally,
it may strengthen the Palestinian judiciary and thereby support Palestinian
national aspirations of independent state to co-exist peacefully with Israel
in its pre-1967 borders.
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