Between Idealism and Realism
Written by: Aeyal Gross
Why did I write The Writing on the Wall? I can point to a few moments as prompters. The first was a debate within Israeli human rights organizations in 2000, when the Second Intifada began. Until then, human rights groups had usually focused on specific violations of the law of occupation, based on a view shared by many according to which international law has nothing to say about the legality of occupation as such. My view, however, was that addressing particular violations legitimized continued Israeli control under the cover of occupation as a temporary regime. This debate led me to develop the thesis that the acceptability of occupation as a legal regime rests on several basic norms. Chief among them is the principle that occupation is a temporary deposit and, should the occupier depart from it, occupation is illegal. Orna Ben-Naftali was developing similar ideas at the time and, after teaming up with Keren Michaeli, we published our article “Illegal Occupation.” The Writing on the Wall begins from where we left off in that article, focusing on the need to shift from a “merely factual” approach to occupation to what I term a “normative approach.”
The second moment was Israel’s withdrawal of its settlers and its permanent military presence from the Gaza Strip in 2005. Since Israel retained control over many aspects of life in Gaza, a debate ensued as to whether Gaza was still occupied territory. These discussions seemed like an enactment of Felix Cohen’s “heaven of legal concepts,” where legal concepts are “thingified” in what Cohen characterizes as “transcendental nonsense.” Insofar as we continued to deal with it in the on/off terms of traditional international law, occupation fitted Cohen’s category of “magic solving words,” referring to terms incapable of solving anything. Cohen’s legal realist approach suggests that norms should not follow from abstract concepts but rather the opposite. When applying Cohen’s insights to occupation law, we need to consider whether the liabilities and duties of an occupier should attach to certain acts. The backdrop was thereby set for a functional approach to occupation, which looks at the substance of control rather than at whether there are “boots on the ground” or not. In the course of the writing, the normative and functional approaches were increasingly revealed as complementary. If occupation is a normative rather than merely a factual framework, it entails duties when the occupant continues to exercise power, even if control no longer takes the form of “boots on the ground,” as in Gaza.
The third moment was my experience when reading Israeli High Court of Justice cases that, in addition to international humanitarian law, applied human rights analysis to the Occupied Palestinian Territory. Advocates of implementing this strategy in occupied territories argued it would strengthen protections for people living under occupation. Reading these cases, however, I realized that a rights analysis shifts the vertical balance between the rights of the occupied and the security of the occupier to a horizontal balance between both parties’ rights. Applying human rights, then, upsets the balance built into humanitarian law ensuring special protections to people living under occupation and widens the justification for limiting their rights. In the Israeli case, the settlers’ security adds a burden unanticipated in international law—for example, to protect settlers from potential violence, Israel’s HCJ allowed the demolition of Palestinians’ houses. While humanitarian law places strict limits on the destruction of civilian property in occupied territories, a human rights analysis allowed to “balance” the property rights of Palestinian owners against the rights of settlers that the occupying army claimed it must protect.
These three moments led me to a critique of the framework of occupation that points out its limits and its legitimizing effects. The book offers a critique of the legal framework and a different way of thinking about occupation, without pretending that a normative and functional approach is a panacea to the flaws of the current approach. The Writing on the Wall thus reflects what many of us, working on international law, find hard to avoid—the space between idealism and realism, or, in Koskeniemmi’s famous terms, between apology and utopia.