A Time to Speak Out: Independent Jewish Voices on Israel, Zionism and Jewish Identity

By Abe Hayeem, Augustine Thompson, Anthony Rudolf and 21 more

In A Time to Speak Out, a collection of strong Jewish voices come together to explore some of the most challenging issues facing diaspora Jews. With articles on such topics as international law, the Holocaust, varieties of Zionism, self-hatred, the multiplicity of Jewish identities, and human rights, these essays provide powerful evidence of the vitality of independent Jewish opinion as well as demonstrating that criticism of Israel has a crucial role to play in the continuing history of a Jewish concern for social justice. At once sober and radical, A Time To Speak Out reclaims an often intemperate debate for those both inside and outside Israel who prefer to confront uncomfortable truths.
Nearly all contributors were associated with the Independent Jewish Voices declaration which, when launched in Britain in 2007, opened a floodgate of responses. Independent Jewish Voices is a group of Jews in Britain from diverse backgrounds, occupations and affiliations who have in common a strong commitment to social justice and universal human rights.

• Language: English
• Publisher: Verso UK
• Release date: May 5, 2020
• ISBN: 9781789604153

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Israel and Palestine

GEOFFREY BINDMAN

The Occupation: Is It Legal?

Independent Jewish Voices signatories may have different views on many issues, but they are united in their commitment to human rights. Human rights are embodied in international law, which responsible societies accept their obligation to obey. There are cynics who dismiss the whole idea of international law as a sham because, unlike most nation-states, the international community has failed to establish a solid constitutional framework. Yet there are few states that openly admit to flouting international law. Even the most authoritarian and repressive regimes at least pay lip-service to the rule of law in both its domestic and international manifestations. Experience has taught us to scrutinize such pretensions with great care.

Israel is a paradox. It is not an authoritarian or repressive regime. It has all the attributes of a democracy on the Anglo-American model. It is a nation of many lawyers who take pride in the respect of their state for the rule of law. Unfortunately, pride is very far from justified when one examines the policies and practices of the Israeli government towards Arab citizens in Israel and towards Palestinian Arabs in the Occupied Territories. Unlike most of those who support the occupation (including Israelis themselves), I have visited the West Bank and Gaza and have seen for myself the appalling conditions there in which people are compelled to live. A recent detailed account of those conditions is contained in a report by Amnesty International, Enduring Occupation, published in June 2007.

The paradox of Israel is in the stark contrast between the high ideals of justice and democracy that are embodied in the legal and political structures within Israel itself, and the repressive actions carried out by the Israeli armed forces in the Occupied Territories. While there have been ingenious attempts by Israeli politicians and a few others to argue that these actions are consistent with international law, the consensus among international lawyers is that Israel has been and continues to be guilty of serious violations.

The legal foundations of the state are in its Declaration of Independence of 1948, which says that it

will foster the development of the country for the benefit of all its inhabitants; it will be based on freedom, justice and peace … ; it will ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex; … and it will be faithful to the principles of the Charter of the United Nations.

These aspirations have arguably been achieved to a great extent within the borders of the state itself for Israeli citizens. There are two exceptions. Discrimination against Arab citizens is still rife at a number of levels;¹ and the readiness of the courts to defer to ‘security considerations’ has over the years undermined social and political rights.

The fundamental challenge to what is otherwise a broadly democratic legal and political system is the occupation. The demands of security and the need to resist violence from whatever source it may come are compelling, but they cannot justify throwing to the winds the rule of law and human rights principles established not only in international law but in Israel’s own Declaration of Independence and in subsequent basic laws passed by the Knesset.

A key issue is the legality of the occupation itself. It has two aspects. First: did Israel enter and take control of the Territories lawfully? The occupation started during the hostilities of the 1967 war but its current legality is not a merely academic question. It goes to the root of the present status of Israel’s claim to control and settle the Territories. Israel in fact continues to deny that it is an occupying power. International law recognizes that occupations may occur lawfully on a temporary basis. But in Resolution 242 the United Nations Security Council, immediately after the Six Day War, on 22 November 1967, emphasized the inadmissibility of the acquisition of territory by war, and affirmed that the UN Charter required ‘the withdrawal of Israeli armed forces from territories occupied in the recent conflict’.

After forty years it hardly seems plausible to argue that the occupation remains lawful. John Dugard, the former UN Special Rapporteur on human rights in the Territories, raised the issue in his January 2007 report, and suggested that a further opinion be obtained from the International Court of Justice (ICJ) to follow its recent opinion on the legality of the wall or barrier erected by Israel along (or near) the boundary between Israel and the West Bank.²

Second, and of more immediate and practical importance, is the responsibility of Israel for the population of the Territories and what it is permissible for Israel to do there. The Fourth Geneva Convention sets out the rules giving effect to the principle that the civilian population of a territory under belligerent occupation must be treated with respect and subjected to as little interference as possible. The Israeli courts have vacillated over the years as to whether they are bound by the Geneva Conventions and the Israeli government has never accepted that obligation. It has consistently denied that the Fourth Geneva Convention applies to their occupation of the West Bank.

The government argument rests on the claim that the annexation of the West Bank by Jordan in 1950 has not been recognized by the international community. The relevant passages of Article 2 of the Fourth Convention read as follows:

… the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognised by one of them.

The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.

The contention of the government is that this does not cover the occupation of the Territories because they are not ‘the territory of a High Contracting Party’, Jordan having no lawful sovereignty over the West Bank. The argument only stands up if you read the second sentence in isolation and not the first.³ The first sentence covers all armed conflict between parties to the Convention, regardless of territorial sovereignty. This is the view of the United Nations General Assembly and Security Council, the International Red Cross and other international authorities. Most recently, the Israeli government’s case has been conclusively analysed and rejected by the International Court of Justice in its 2004 advisory opinion on the construction of the wall in the West Bank. The ICJ said that Israel is fully bound by the stringent obligations in the Convention. It also concluded that the erection of the wall was unjustified and has led to a number of violations of international law. Only one of the fifteen judges, Judge Buergenthal, dissented from the majority. He did so because he thought the ICJ should have rejected the request to give an advisory opinion, not because he disagreed with the conclusions of the majority on the illegality of the conduct of the Israeli government.⁴

In fairness it should be noted that Israel has said it will observe the humanitarian obligations of the Geneva Convention but it has never made clear what obligations it regards as ‘humanitarian’, and it has plainly flouted them in numerous ways. In particular it has violated the prohibition on transfer by the occupying power of any part of its own population into the occupied territory. This prohibition strikes directly at the status of the settlements that have been a crucial feature of Israeli policy in the Occupied Territories over the last forty years. There are now 460,000 Israeli citizens illegally resident in the West Bank. As David Kretzmer says:

According to the international law of belligerent occupation, the political status quo of occupied territories must be maintained so that their ultimate fate can be determined by political negotiation. In contrast, the political aim of settlements is to create facts that will predetermine the outcome of any negotiations … Furthermore, the existence in the territories of a large number of settlers, who enjoy the full democratic rights of Israeli citizens and for whose benefit scarce land and water resources have been harnessed, has made the regime there much closer to a colonial regime than one of belligerent occupation.⁵

The Convention also prohibits individual or mass forcible transfers of residents of the occupied territory to the territory of the occupying power.⁶ Hence, not only is the transfer of Israeli citizens to the constantly expanding settlements illegal, but also the converse: the transfer to Israeli prisons of Palestinian residents of the West Bank, numbering now some 9,000, is equally in violation of the Convention.

Then there is the brutal treatment by Israeli occupying soldiers, including the arbitrary arrest and detention of many Palestinians. Family homes are demolished. House demolition is a form of collective punishment, violating the Convention, because it injures not only the individual whose conduct may or may not merit punishment but families and relatives who may share the house.⁷ Other forms of collective punishment are also common, including curfews and road closures. There is expropriation of land and the exclusion – condemned by the International Court of Justice in the opinion already referred to – of many Palestinians from access to their own land by the interposition of the wall that now separates a large part of the West Bank from Israel. Some 80 per cent of the wall has been built on Palestinian land, much of which is on the Israeli side of the wall, to which access by its owners is severely impeded or from which they are completely excluded.

The advisory opinion made it clear that a wall on the Green Line, marking the 1967 boundary of Israel, would be lawful. The actual wall, they found, had been erected not merely for security but as a means of expropriating territory and causing gratuitous disruption and harm to many Palestinians. The Israeli government has chosen to ignore the opinion of the ICJ and attempts in the Israeli courts to challenge the route of the wall have had little success. However, a recent decision of the Supreme Court has ordered a significant re-routing of the wall to avoid severe hardship to residents of an Arab village.⁸ In this case, the Court rejected the security justification claimed by the government.

Generally, the Israeli government argues that the wall is justified by its success in reducing the number of suicide bombers. This claim has a strong appeal to public opinion. It also has some support in international law, which recognizes ‘military necessity’ in appropriate circumstances and also the right to self-defence. The ICJ opinion on the wall considered that Israel’s right to employ otherwise unlawful measures for self-defence, permitted by the UN Charter,⁹ would only apply where an attack came from outside the territory it occupies. ‘Necessity’ arises only where the steps taken are ‘the only way for the state to safeguard an essential interest against a grave and imminent peril’. The ICJ said it was not convinced ‘that the construction of the wall along the route chosen was the only means to safeguard the interests of Israel against the peril which it has invoked as justification for that construction’.

In Israel, as in the United States and Britain, governments seem incapable of resisting the easy assumption that all legal restraints are dispensable in the face of the terrorist threat. In Israel especially, the history of suicide bombing enhances the animosity towards Palestinians in general that seems to infect political thinking and the willingness to abandon humanitarian standards. But the supposed balance between freedom and security is a false one. Ronald Dworkin has pointed out that those whose freedom is sacrificed by repressive laws and practices are not the same people whose security is protected. Israelis increase their security not at the expense of their own freedom but at the expense of the largely innocent civilian population of the Occupied Territories.¹⁰ Measures that do this are unlawful where they are neither necessary nor proportionate. But they are also counter-productive in two ways: they create justifiable resentment among the innocent, some of whom may be provoked to revenge, in extreme cases even by suicide bombings; and they are incompatible with the respect for democratic values that Israel professes.

The International Commission of Jurists has appointed a panel of eminent jurists under the chairmanship of Judge Arthur Chaskalson, President of the Constitutional Court of South Africa, to conduct a global inquiry into the impact of terrorism and counter-terrorism measures on the rule of law, human rights and humanitarian law. Members of the panel recently visited Israel and the Occupied Territories and met senior officials, including the Chief Justice of the Israeli Supreme Court and President Mahmoud Abbas of the Palestinian Authority. In preliminary observations on its visit, the members of the panel pointed out that the targeting of civilians not directly participating in hostilities is never permissible under international law and that oversight by an independent civilian judiciary is a key to any accountable counter-terrorism policy. The panel underlined the need to avoid measures that could lead to the exacerbation of tensions, alienation and violence. They were struck by the extraordinarily negative impact of the separation wall on the everyday lives of the inhabitants of the West Bank.

Those who rightly protest at suicide bombings carried out in the mistaken belief that they advance the Palestinian cause often fail to observe or explain the fact that more Palestinians, including many children, have suffered death and injury in recent years at the hands of the Israeli security forces than there have been Israeli victims of attacks by Palestinians.¹¹ Although Israeli governments have carried out or condoned a policy of assassination of alleged terrorists and arbitrary violence towards civilians, there is little evidence of any disciplinary action or prosecution of Israeli soldiers for crimes against humanity or even for lesser offences. After British filmmaker Tom Hurndall was killed in Gaza by an Israeli soldier, diplomatic pressure by the British government and a demand for extradition of the soldier to stand trial in Britain have so far failed to sway the Israeli government.

Much of this repression is associated with the perceived need to protect and advance the interests of the settlers. Thus the creation of a network of roads across the West Bank that Palestinians may not use; even if Israelis want to give lifts to Palestinians along these roads, they have been prohibited from doing so. It is this and other acts of discrimination against Palestinians that lead some to use the term ‘apartheid’ in describing the treatment of Palestinians by Israel. John Dugard, a South African and author of the leading study of human rights in South Africa,¹² said in his 2007 report that, while on the face of it occupation and apartheid are very different regimes, there are many Israeli laws and practices that at the very least violate the 1966 UN Convention on the Elimination of All Forms of Discrimination, and could violate the 1973 Convention on the Suppression and Punishment of the Crime of Apartheid.

Furthermore, the way in which the Israeli government has organized the administration of the West Bank resembles that of a colonial power. It has delegated authority to the military, which administers the Territories as a separate legal entity and with little supervision by the Israeli government. While it is true that the Palestinian Authority has nominal power in some areas, the military issues regulations and orders controlling virtually every aspect of the life of Palestinians. The range and pettiness of the regulations that disrupt the lives of ordinary people are extreme. Travel within the West Bank is seriously curtailed for Palestinians. Restricted roads are only part of the story. On those roads that are accessible to Palestinians, checkpoints are a constant hazard and many Palestinians, including children, have been killed or injured as a result of their interaction with Israeli soldiers at these or elsewhere.

By placing day-to-day responsibility for the Occupied Territories in the hands of a military administration the Israeli government has tried to exclude judicial supervision and intervention to restrain their abuses. To its credit the Supreme Court has declined to be totally excluded, and has been prepared to accept petitions for judicial review in some cases of activities in the West Bank, but it has been almost entirely ineffective because it has routinely deferred to arguments based on security. It has upheld house demolitions and for many years permitted torture. While the attitude of the Supreme Court changed in 1999,¹³ there is evidence that torture is still in use.¹⁴

The former president of the Supreme Court, Aharon Barak, on his retirement in early 2007, was widely praised as a champion of human rights and a judicial genius. Yet an Israeli writer, Gideon Spiro, has disputed Barak’s claim to balance human rights against the demands of security. ‘Miraculously’, says Spiro, ‘whenever Barak perceives a conflict between the rights of occupied Palestinians and security, security nearly always wins the day’.¹⁵

Not only Chief Justice Barak, but his predecessors, Chief Justices Shamgar and Landau, for example, have shown reluctance to challenge human rights abuses where they affect Palestinians. Landau and Barak consistently rejected the view that the Supreme Court had jurisdiction to review alleged violations of the Fourth Geneva Convention, even though the government had declared its intention that the humanitarian provisions should be observed. Other judges, such as Judge Bach, a survivor of the Holocaust, disagreed with them. Had their view prevailed, many lives might have been saved by greater curbs on abuses.

Ultimately, governments are responsible for the abuse of human rights, and the courts can always be defeated by a determined legislature. But those who administer the justice system should stretch the limits in defence of human rights. The Israeli Supreme Court has failed to do this. It could have done, and could do, much more to mitigate the abuses of the occupation.

The violations of international law described in this chapter seem largely counter-productive. They are hugely damaging not only to the Palestinians but to the citizens of Israel as well, particularly to its young soldiers, many of whom have been brutalized by their role in the occupation. There is no easy means of enforcing international law. John Dugard, with a limited brief, confined his recommendations to arguing for the issue to be brought yet again before the International Court of Justice.

His successor as Special Rapporteur, Martin Scheinin, in his first report in November 2007, again found serious incompatibilities between Israel’s counter-terrorism laws and practices and its international human rights obligations. He recommended legislation by the Knesset to ensure compliance with the principles of legality, including the immediate withdrawal of Jewish settlements in the Occupied Territories and the replacement of the still unfinished barrier with a security infrastructure that respects the Green Line or is otherwise accepted by the Palestinians.¹⁶

Amnesty International, in its report ‘Israel/Occupied Territories: Road to Nowhere’, has made a series of recommendations to the Palestinian armed groups, to the Palestinian Authority and to the international community.¹⁷ Broadly, these demand the proper observance of human rights standards. Doubtless the Eminent Jurists Panel led by Judge Chaskalson will deliver similar exhortations. What is needed is an effective means of challenging violations of international law through a judicial process. The eventual extension of the jurisdiction of the International Criminal Court may point the way forward. Meanwhile, we are at the mercy of the imperfections of politics and diplomacy.

LYNNE SEGAL

Solidarity at a Distance and Dreams of Peace

‘I am afraid for the Jews of Israel’, Grace Paley, that wise observer of friend and foe, wrote in 2003. Having just learned of Paley’s death, I feel in urgent need of her sharp wit and compassion. Paley was ‘afraid for the Jews of Israel’, she wrote, because for thousands of years Jewish people had lived without a state of their own, and were they to want one, she continued, her trademark irony now in full swing, next thing they’d need ‘an army, airplanes, nuclear weapons, borders, checkpoints, and maybe a big wall and a lot more land’. Maybe! The black humour mounts, as she imagines the voice of her radical father, restlessly turning in his grave:

My God, I’m glad I’m six feet under. And the Jews of America say all this is OK? They don’t yell stop? I think they lost their Jewish minds. Us. Poor people hounded all over the earth for a couple thousand years and now they want to be the hounds? I want to correct him, No, no, Pa, there are people on both sides. A lot who want to live like human beings. You would recognize them. He said sadly, I know, of course. Usually they’re better, the people. But always in the end I have noticed how it grows, the state and its terrible power.¹

The state and its terrible power! Some Jewish people were always fearful of it, positioning themselves as champions of the outsider within, the stateless and the dispossessed, among whose numbers they were so often to be counted. I have my own whispering ancestors, long disregarded for taking the ‘wrong’ line on Israel, before it even came into being. As the founder of the Hebrew Standard in Sydney in 1895, the first and for many decades the only Jewish paper in Australasia, as well as its selfless, industrious editor for over thirty years, my grandfather (Alfred Harris) spent the last two decades of his life embattled in bitter disputes over the political goals of Zionism. He feared for the Arab population of Palestine, who had lived there for fourteen centuries, were a Jewish state to be established in that region. As late as 1941 he summarized his anxieties in a series of editorials entitled ‘Zionism Today’, remaining adamant that what he called ‘Political Zionism’ is ‘unjust, dangerous to a degree, even cruel in its inevitable consequences and, after all, unobtainable’.² What he got right, sadly, has proved as prophetic and enduring as what he got wrong. Outside the Arab world, his views were dismissed for the next fifty years. Interestingly, his fears about the cruelties that might attend a fully triumphant Zionism are once again beginning to receive an airing in some Jewish thought today, even in the occasional ‘post-Zionist’ writing of a few Jewish Israelis.

The latest, most notorious expression of such post-Zionist thinking comes from a former Israeli politician, once candidate for the Labour leadership and Speaker of the Knesset, Avraham Burg. In his recent book Le-Natseah Et Hitler (Defeating Hitler), he points out that the West solved its mid-twentieth-century ‘Jewish problem’ largely as Hitler would have wished, by underwriting the removal of European Jews to Israel.³ Most western states, and the United States in particular, refused to open their doors to Jewish people during or immediately after the Holocaust, leaving its survivors, still traumatized, displaced and dispossessed in Europe, often facing little option but to leave for Palestine.⁴ In recent years, other Israeli texts have rather similarly argued that the Israeli state was founded on the negation of the diasporic Jew, that is, on contempt for that cosmopolitan internationalist disposition, less bound by ties to soil, sword and state. In his impressive chronicle of the impact of the Holocaust on Zionism, Tom Segev reported the overwhelming disdain for Hitler’s victims expressed by the ‘new Jews’ in Palestine.⁵ Israeli psychologist Yosef Grodzinsky, along with historian Idith Zertal, corroborate his views, writing of Israel’s initial insensitivity towards Holocaust survivors who, to this day, as a group, remain poorer in Israel than elsewhere in the world.⁶ All these books confirm that the first Prime Minister of Israel, Ben-Gurion, was embarrassed by Jewish survivors, a view he only began reversing in the 1960s as Holocaust memory came to serve Israel as a tool against any critics of its aggressive policies towards the native Palestinians. Israel received massive reparations for the treatment of Holocaust survivors, yet has seemed to care so little for those who survived. In 2007 frail and elderly Holocaust survivors have found it necessary to picket the Knesset, revealing that they are barely able even to meet their essential medical expenses.⁷

The state and its terrible power! The extraordinary growth of Israel’s military might has made it one of the most threatening regional powers of the last half-century.⁸ Israel already receives overwhelmingly the highest amount of government aid from the United States of any foreign country, but in August 2007 its American backer agreed to give it an additional $30 billion in military aid over the next decade.⁹ This is more appalling news for those working for peace in this spectacularly unequal struggle over territory in what so often seems the cursed Holy Land. Observing the overweening military power of Israel, watching it resort to it as the first option in the confrontations that inevitably attend occupation, tears and pessimism always threaten to overwhelm hopes for any morally acceptable end to the conflict there. It has lasted so long. Even dreams of reconciliation are beaten back before the shattering realities of Palestinian lives in Gaza, East Jerusalem and the West Bank.

‘When I began walking in Palestine a quarter of a century ago, I was not aware that I was travelling through a vanishing landscape’, Raja Shehadeh opens his sad but beautiful book Palestinian Walks.¹⁰ For its indigenous population, this new landscape is one of humiliating containment, fear and intermittent acts of violence; for its newcomers, Israeli soldiers and the expanding ‘illegal’ settlers they guard, it is a front line on permanent alert, guns within reach, instant readiness to kill. As I write these words, another email arrives, telling me that three Palestinian children were shot playing in Gaza yesterday (29 August 2007), innocent victims of a military unit of the Israeli army aiming at what was thought to be a rocket launching station near Beit Hanoun (though apparently no rocket launchers subsequently came to light).¹¹ My newspapers don’t bother to report such routine events; they fall beneath the radar that registers the newsworthy. Over a decade ago, there was international celebration at the signing of the Oslo Peace Accords in September 1993, but their limited aspirations were already thoroughly undermined before the century’s close, most obviously by successive Israeli governments allowing systematic Israeli expansion into Gaza and the West Bank (in line with the strategic plan of Ariel Sharon, who would become prime minister of Israel in 2001). It was the breakdown of the Oslo initiative that triggered the second intifada of Palestinian resistance, accompanying the powerful intensification of Israeli military control over and enforced separation between ever-smaller Palestinian enclaves. As if to secure Israeli–Palestinian enmity in perpetuity, this impasse is being, literally, set in concrete. The ongoing construction of the separation wall in the Occupied Territories follows a route cutting like a sheaf of daggers between pockets of closed-off Palestinian communities. All around and in between them, ever larger Jewish ‘settlement blocs’ on the hillsides of the West Bank are to be annexed into Israel, linked together by roads accessible only to Israelis. ‘Yes, this is apartheid’, as former Israeli MK, once Minister for Education and Culture, Shulamit Aloni argued in January 2007. In sorrow, this eminent Jewish politician listed more of the ways in which her government was daily denying the human rights of Palestinian people: ‘We not only rob them of their freedom, land and water. We apply collective punishment to millions of people and even, in revenge-driven frenzy, destroy the electricity supply for one and half million civilians. Let them sit in the darkness