Monday, July 16, 2012

The Occupation Paradox: Anything but the Truth

On July 15. 2012, Ha’aretz ran an editorial attacking the State of Israel for issuing a military order intended “to deport peace activists”. The paper’s editors take a forthright stand on the protection of democratic principles. Unfortunately, they do so by making up a story that never was. Below, the  editorial confronts the facts:

  “The Israel Defense Forces top brass did not wait for the cabinet’s decision regarding the report issued this week by the Edmond Levy committee. ‏(The report ruled that the entire West Bank is not occupied territory and therefore rendered the Oslo Accords null and void.‏)”

What the Levy Report actually stated was that Israel’s military presence in the West Bank does not constitute an “occupation” as that term in defined under customary international law. That finding is not new. The point was made by Professor Yehuda Blum in 1968, in his article “The Missing Reversioner” (3 Israel Law Review 279).  It was and remains the official view of the State of Israel.

The argument that the territory is not under “occupation” in the sense that the term is employed in international law has nothing to do with the validity of the Oslo Accords. The Accords are not contingent upon defining the West Bank as “occupied”. The conclusion reached by Ha’aretz is simply incorrect and misleading.

Moreover, the criticism voiced in the opening sentence creates some imaginary relationship between the order issued by the IDF and the Levy Report. The two subjects are entirely unrelated. The Report concerns the status of the West Bank in international law, and the legal status of Israeli settlements. The military order grants the Immigration Police jurisdiction in the West Bank. Similar orders grant jurisdiction to the Israel Police, and the Prison Service. In the absence of such an order, none of those organizations would have authority to operate in the area. That has nothing to do with the findings of the Levy report. The linkage made by Ha'aretz is entirely imaginary. It is a red herring created by the editors in order to enable them to criticize the IDF.

“GOC Central Command Nitzan Alon has signed an order enabling the Immigration Police to operate in the occupied territories, including Area A ‏(which is under the jurisdiction of the Palestinian Authority‏). Chaim Levinson reported in Friday’s Haaretz that the Immigration Police are permitted to search Palestinians’ houses and detain any person the officer has “reasonable cause” to suspect of being there without a permit.”

These statements of fact are actually conjectures and untruths. The order signed by the general makes no mention of Area A.  The order also does not permit the Immigration Police to search a Palestinian home on the basis of “reasonable cause”. In fact, the order expressly states that the Immigration Police cannot search a dwelling without a search warrant issued by a judge. The assertion that a Ha’retz reporter made an incorrect report on Friday, does not make that report factually true on Sunday.

“The IDF spokesman commented that the order authorizes the officers to transfer foreigners staying in the territories illegally ‏(according to Israeli law‏) to Israel’s territory for the continuation of law enforcement procedures in their case.

Two years ago the Supreme Court ordered the release of two international activists, whom the Immigration Police arrested in Ramallah and wanted to deport. Justice Asher Grunis ruled the officers had no authority to act outside Israel’s sovereign jurisdiction. He also ruled that, according to the interim agreement with the Palestinians from 1995, the IDF has no authority to conduct searches in Area A for illegal sojourners. Every time it seems that terrorists who carried out attacks on Israelis had come from that area, Israel stresses that the agreement places the responsibility on the Palestinian Authority, which has taken over all the security and civilian authorities.”

The report of the Court’s ruling is essentially true. It was precisely in response to the Court’s finding that the Immigration Police lacks jurisdiction to operate in the West Bank that the state declared its intention to correct the legal situation. The issue then as now was not that of the rights of peace activists, but rather the status of the Immigration Police.

“A state claiming to be democratic and enlightened does not issue military orders to deport peace activists, who wish to protest against the iniquities of the occupation. The new order demonstrates the contradiction between the claim that the territories are not occupied, on the one hand, and the use of military orders on the other.”

The argument as to what a democratic state does or does not do in regard to “peace activists”  is not relevant. It’s only connection to the  issue is that the petitioners in the previously mentioned case were allegedly members of the ISM movement. The purpose of the order, as is clearly explained on the website of the IDF Chief Military Advocate’s Unit, is to address the issue of illegal foreign workers: “With the spread of the phenomenon of illegal residence in Israel, the Judea and Samaria region has also become a work destination for foreigners, who reside their unlawfully.”

“If the territories are not occupied, as the Edmond Levy report says, the Immigration Police do not require a military order to act beyond the Green Line. All that remains is to apply Israeli law to all West Bank residents and give them the right to vote and stand in elections.”

This statement is a continuation of the earlier misrepresentation of the concept of “occupation”. It makes the false assertion that if the area is not under occupation, then the Israeli authorities automatically have jurisdiction, But jurisdiction of the Immigration Police is not contingent upon the question of whether or not the West Bank is occupied territory under international law. As long as Israel has not extended its sovereignty to the area, the Immigration Police, or any other Israeli governmental agency, has no jurisdiction there unless it is granted such jurisdiction by the military authorities.  The statement regarding the application of Israeli law is simply a non-sequitur.

"The penetration of a civilian Israeli authority into Ramallah exhibits the huge abyss between Prime Minister Benjamin Netanyahu’s declarations about wanting to advance the two-state solution, and the existing Israeli policy, which is heading toward a binational reality."

This is an interesting political opinion, but is entirely unrelated to the issue, and cannot be supported by the fact that the Immigration Police have been granted authority to arrest and deport illegal aliens residing in areas under Israeli military rule.

As often seems to be the case, the editors of Ha’aretz appear to have forgotten that while they are entitled to their own opinions, they are not entitled to make up their own facts.

Avinoam Sharon