Litigating in the Occupier’s Court: A Reading of the Palestinian Authority’s Position*

Israel's Annexation Wall, view from Aida Refugee Camp, Bethlehem. (© Liliolivares.com, 2010) Israel's Annexation Wall, view from Aida Refugee Camp, Bethlehem. (© Liliolivares.com, 2010)

The applicability of international humanitarian law came into effect with the subordination of the West Bank and Gaza Strip to the Israeli occupation in 1967. Both customary law and treaties – the 1907 Hague Convention Respecting the Laws and Customs of War on Land and the 1949 Fourth Geneva Convention on the Protection of Civilian Persons in Time of War – require that an occupying power must be temporary and limit changes to the legal system that preceded it to cases of extreme necessity.

Military Order No. 2 of 1967, issued by the Israeli Military Commander, integrated the aforementioned provisions and kept in force laws that preceded Israel’s control of the occupied Palestinian territory, which could have been in line with international humanitarian law. However, the occupying power’s policies and practices, such as the imposition of Israeli civil law on occupied East Jerusalem and amending the scope of pre-existing laws through military orders, have been completely at odds with the rules and norms of international humanitarian law. The most dangerous practices are those that target Palestinian existence on their land, including natural resources and immovable properties. Policies are implemented by Israeli laws and regulations of land, planning and building, and powers of judiciary bodies including quasi-judicial committees.

Extension of the Israeli Supreme Court’s jurisdiction over the occupied Palestinian territory was rationalized as a means to provide oversight in monitoring the actions of the Israeli military. In the beginning, the Palestinian position rejected the extension of jurisdiction and refused dealing with the Supreme Court, considering it in serious violation of the norms of international humanitarian law and requiring a boycott. Despite the legitimacy of this principled stand, rejection posed significant challenges to Palestinians confronting the enterprise of Israeli occupation. For instance, as a result of Israel’s illegal annexation of Jerusalem and the subjection of it to Israeli civil laws, Jerusalemites had only two options for challenging Israeli policies aimed at expropriating their proprieties and destroying their homes: either to revert to using the Israeli court or to adhere to the initial boycott position and not challenge the implementation of the measures through the courts.

Early Palestinian discussions never abandoned, not even for a moment, the reference point of International Humanitarian and Human Rights Law. However, in practice international law did not protect Palestinians from Israeli violations. As a result, both the lack of international protection and imminent daily threats continue to inform the official Palestinian position. Before the Oslo process the Palestine Liberation Organization’s position for a boycott was expressed through elected mayors, the National Guidance Committee and the Unified National Leadership. After Oslo, the official Palestinian position is expressed by the highly pragmatic approach of the Palestinian Authority. The Palestinian Authority, as a project, sought to find a stance between two antithetical compulsions.

Originally, the Palestinian position rejected using the legal system so as not to confer any legitimacy on Israeli judicial measures that violate obligatory rules of international law. Additionally, Israel prevented Palestinian institutions from litigating before the Israeli courts. However, this ban was not imposed on Palestinian individuals and groups. Palestinian institutions provided financial support to affected persons to subsidize court and attorney fees, land surveys and plans, the costs of aerial photographs as well as fees of experts or specialists who examined fingerprints and provided other services. This is exactly what the Palestinian Authority is doing today.

What I want to emphasize here is that neither of the two positions (one that on principle rejects participation in the Israeli judiciary trap and the other that calls for exploiting the narrowly available margins of opportunity within the legal system) legitimizes extension of Israeli judicial power to the occupied Palestinian territory. The Israeli justice system remains an illegal implement of the colonial and occupying power. Nor do these positions end at the Israeli military courts or reduce the necessity of taking up Palestinian human rights in international judicial forums, which requires exhausting all domestic judicial measures.

The central difference between the two positions is motivated by a feeling (from the majority of Palestinians) of frustration by the lack of will or inability of the international community and the Palestinian leadership to compel the Israeli occupying power to respect the binding rules of international law. The Palestinian leadership fears losing control of the actions of affected Palestinians left without practical alternatives to attempting the courts. Both the general feeling of frustration and the Palestinian leadership’s lack of control have led to the overwhelming practice of the idiom: necessity knows no law, legitimizing dealing with the courts of the occupation.

Despite its pragmatic stance, the official Palestinian position has maintained a number of unwritten (until now) principles constraining its support for interactions with the Israeli legal system. It is worth mentioning the most important of these regulations particularly those that involve real estate, which are:

  • - In order to prevent Israel’s claim that colonization was implemented with the consent of Palestinians, a principled prohibition against accepting compensation for damages that are ongoing and/or for damages caused by the occupation;
  • - A land swap or exchange is prohibited, irrespective of losses or gains;
  • - A compromise is prohibited (Israeli court justices usually encourage parties to seek a settlement rather than a ruling) even if the price of rejecting one is a lost lawsuit;
  • - Suggesting alternatives, such as negotiating an alternative path for the Separation Wall, is prohibited because such alternatives are illegal as long as they are located in occupied territory;  
  • - For the same reason, the principle of arbitration is unacceptable;
  • - It is prohibited to waive rights or accept interim procedures such as renting;
  • - It is mandatory to invoke the norms of international humanitarian law and other relevant international laws as the foundation for all legal positions, which means to prohibit conferring legitimacy on the occupation’s illegal procedures while emphasizing the rights of protected persons and civilians.

The principles listed above may seem to be contrary to the due process required for pursuing justice in a law-abiding state. For example, under normal conditions compensation derived from an agreed settlement between the parties may indeed achieve just resolutions. The Palestinian Authority’s rejection of compensation may seem problematic and unreasonable. The same could be said about the prohibition against suggesting an alternative path to the Wall, rejection of accepting alternatives, rejection of arbitration, etc. However, such prohibitions are essential given the context of injustice implemented, in part, through the Israeli legal system. A Palestinian approach to the law is determined by the disparity between ‘normal’ conditions of a legitimate authority that confiscates land for public use and the Palestinian reality: occupation forces that confiscate land for exclusive colonization purposes. As such, it is impossible to accept the ‘fairness’ of compensation, arbitration, or alternative routes as long as they are implemented by an illegitimate authority – the occupying power.

Finally and in my personal opinion, there are three reasons why the long held Palestinian approach to engage, albeit with limitations, with the Israeli legal system continues without serious revisions despite decades of disastrous experiences, the continuing occupation and the emergence of a new fundamental variable, which is the recognition of Palestine as a non-member state of the United Nations providing more avenues for accessing international judicial forums. They are:

  • - The continuous pressure and the diversity of the challenges mentioned above facing all the occupied Palestinian territory creates many instances when using Israeli courts is the best of bad options. For instance, to delay the demolition of a home requires filing a petition with the Israeli legal system. Challenging falsified ownership documents in favor of Israeli colonies and in rejection of Palestinian rights requires appealing the Israeli Magistrate’s Court.
  • - There are several parties who benefit economically from the continuation of this reality. It may sound a bit strange, but let us imagine the number of beneficiaries who will lose sources of income if the Palestinian Authority implements a decision prohibiting Palestinians from addressing their claims in the Israeli courts?
  • - The need to avoid undesirable confrontation with many concerned actors. The adoption of a new approach toward the Israeli legal system is not free from political pressure or backlash, including from international actors, which is undesirable for many of the decision makers. Altering the Palestinian Authority’s approach to the Israeli legal system puts into question the type of relationship the Authority keeps with the Arab states and Europe in addition to the weight of confronting Israel and its allies.

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* Translated from the Arabic by Halimah Al Ubeidiya.