The international community and Israel: giving permission to a permanent occupation

Michael Lynk, Special Rapporteur on the situation of human rights in Palestinian territories (Denis Balibouse - Reuters).jpg

Michael Lynk   

Just Security  /  January 7, 2022      

 The international community takes stock of the Israeli occupation

On November 17, 2021, the Ad Hoc Liaison Committee (AHLC) gathered in Oslo for its semi-annual meeting. Created in 1993 shortly after the famous handshake on the White House lawn, the AHLC is the semi-formal organization of international donors to the Palestinian Authority (PA). It promotes a two-State solution through the development of the Palestinian economy and civil institutions. Its membership of 15 leading States and institutions includes the United States, the European Union, Russia, the International Monetary Fund, the World Bank, the Palestinian Authority, Israel, and four Arab countries (Saudi Arabia, Egypt, Jordan, and Tunisia). Norway acts as the chair.

At the Oslo meeting, the AHLC reviewed the progress towards a Palestinian State, assessed the debilitated Palestinian economy, and encouraged donors to provide a new round of funding pledges for the Palestinian Authority. It also received reports from the United Nations Special Coordinator for the Middle East Peace Process (UNSCO) and the World Bank on the current economic and political landscape of the 54 year-old Israeli occupation.

The updates were grim. The U.N. Special Coordinator reported that the fiscal situation of the Palestinian Authority remained dire, international donations were substantially down, there was little hope for a renewed peace process in the foreseeable future, and humanitarian conditions on the ground – including the expansion of the illegal settlements, settler-related violence, and the demolitions of Palestinian homes – were steadily worsening. The report proposed a number of technical solutions to reverse the crippled economy, none of which imposed any substantive obligations on Israel as the occupying power. Notwithstanding the dispiriting political climate, the Special Coordinator insisted that a two-State solution remained possible and opportunities to build momentum should not be missed.

The World Bank was equally pessimistic: in particular, it reported that the economy in Gaza has undergone a multi-decade deindustrialization, resulting in a 45 percent unemployment rate and a 50 percent poverty rate, with 80 percent of the population dependent on some form of international assistance. One of the principal sources of these calamitous conditions, it noted, was “the external restrictions on Gaza [resulting] in a closed economy,” an exceptionally polite way of describing the suffocating 14 year-old Israeli blockade of the Strip. In one remarkable paragraph, the Bank report noted at some length that the main impediments to economic growth in the West Bank were the severe constraints on Palestinian movement, access, and trade, but without mentioning Israel’s extensive network of walls, checkpoints, road closures, settler-only highways, and forbidden zones as the source of these constraints.

In her Chair’s summary of the AHLC meeting, the Norwegian Minister of Foreign Affairs, Anniken Huitfeldt, also adopted a passive and antiseptic voice. She noted the “deep concern” of the AHLC members about the deteriorating situation, and the urgent need to “calm down tensions.” In particular, she called upon the parties – Israel and the Palestinians – “to avoid all unilateral actions that could further aggravate tensions and undermine the prospects for resuming negotiations and the two-state solution,” but without indicating who bore the primary responsibilities as the occupying power. While the Chair’s statement listed a number of benign recommendations, nothing was said about Israel’s failure to comply with the more than 30 U.N. Security Council resolutions adopted since 1973 declaring that its annexations and settlements are illegal, demanding that Israel comply in full with the Fourth Geneva Convention, and directing an end to the occupation.

Just prior to the AHLC meetingHa’aretz reported that Israel had lobbied the United States to pressure European and Arab countries in Oslo to increase their aid to the Palestinian Authority in order to forestall an economic collapse. The irony is rich: the United Nations Conference on Trade and Development has recently estimated that Israeli closures, restrictions, rapacious settlement growth, and military operations have cost the Palestinian economy an estimated $57.7 billion dollars (US) in arrested development since 2000. For Israel, its occupation has been largely cost-free, with the international community almost entirely funding the Palestinian Authority and the provision of  minimal social services in the West Bank and Gaza. Yet, while footing the bill, the international community has imposed no political conditions on Israel to comply with the international legal framework to unwind its occupation. Israel’s purpose for lobbying the United States in November was because international donations to the PA have fallen from $1.3 billion in 2011 to just $400 million in 2020, in large part because of Israel’s past diplomatic campaigns against the PA. Israel’s present fear is that the Palestinian Authority’s mounting fiscal crisis and political frailty might well create an unmanageable security threat in the West Bank.

 The bleak reality: vanishing hopes [sic] for a two-state solution

 As dismal as these reports were, the reality is actually worse. The new Israeli government, which took office in June, has been advancing plans for approximately 17,000 new housing units in its settlements, including the creation of major new settlements in and near East Jerusalem.

While pressure by the Biden administration on Israel will likely stall the progress of some of these larger plans, it will hardly diminish the inexorable growth of the settlement population. In 1993, when the AHLC was created, there were 116,000 Israeli settlers in the West Bank. In 2014, when the last serious peace efforts – the John Kerry initiative – collapsed, there were 370,000 settlers. Today, there are approximately 475,000 settlers. Add in the 230,000 settlers in East Jerusalem, and the total population has surpassed 700,000, meaning that 10 percent of the Israeli Jewish population are now living in occupied territory.

Meanwhile, the level of violence required by Israel to sustain the occupation has been steadily increasing. In terms of Palestinian deaths at the hands of the Israeli military and settlers, 2021 is already the deadliest year since 2014. (Since 2008, the United Nations has reported that 5,985 Palestinians have been killed by Israeli violence, while 264 Israelis have died by Palestinian violence during the same time period.) Settler violence is on the rise, with 2021 marking the highest levels of settler attacks on Palestinians since statistics were first regularly gathered in 2012. Demolitions of Palestinian homes by the Israeli military are also spiking, in large part because Israel has rejected over 98 percent of Palestinian building permit applications in the 61 percent of the West Bank – Area C – that it directly controls. Israel’s short war with Hamas in Gaza in May not only killed 260 Palestinians, but caused up to $380 million in property damages and economic losses of up to $190 million, creating a new financial black hole for a beleaguered economy already flat on its back.

Beyond tut-tutting about settlement expansion and ensuring that the Palestinian Authority’s head is kept above water, the international community has no coherent strategy to actually end the 54-year-old Israeli occupation. In candid moments, prominent voices have acknowledged that the prospects for a two-State solution have virtually evaporated. In 2013, John Kerry, then the U.S. Secretary of State, stated that the window for a two-State solution was only “a year…to two years, or it’s over.”  The U.N. Security Council warned in 2016 that Israel’s settlement activities were “…dangerously imperiling the viability of the two-state solution based on the 1967 lines.” The European Union has conceded that the situation has devolved into a one-State reality of unequal rights. Former United Nations Secretary-General Ban Ki-Moon observed in June 2021 that: “Israel has pursued a policy of incremental de facto annexation in the territories it has occupied since 1967, to the point where the prospect of a two-State solution has all but vanished.” With everyone’s eyes wide open to the dynamic reality on the ground, the ritual avowals by major international actors that they remain committed to a two-State solution have become its ‘thoughts and prayers’ a diplomatic pantomime that is a cover for paralysis rather than a declaration of resolve.

In his 1958 masterpiece The Leopard, Guiseppe Tomasi di Lampedusa chronicled the declining fortunes of a Sicilian aristocratic family during the Italian Risorgimento. Sizing up the mounting political challenges facing his family, one of the novel’s characters says: “For things to stay the same, things will have to change.” And for the new Israeli government, the dictum of plus ça change, plus c’est la même chose has become its political watchword.

The direction of the Israeli coalition ‘government of change’ led by Naftali Bennett has been to abandon Benjamin Netanyahu’s bluster and drama, but to continue with his core policies. So far, it has been working. Prime Minister Bennett expressly stated in September that he opposes the creation of a Palestinian State. The Israeli defense minister, Benny Gantz, said that peace negotiations are impossible because of the Palestinian Authority’s opposition to Israel’s settlements in East Jerusalem and the West Bank: “We’re not taking down settlements.” The new Israeli Foreign Minister, Yair Lapid, told a meeting of European Union foreign ministers in July that there is no present prospect for a peace process. Curiously, for an international community which insists that it is deeply invested in a two-State solution, none of this has generated serious pushback. As Anshel Pfeffer, Haaretz’s respected political correspondent, reported in September: “In the past three and a half months since he became prime minister, Bennett has noticed how seldom the Palestinian issue came up in his conversations with foreign leaders, and how half-hearted they sounded when they did bring it up.”

Indeed, with the apparent blessing of major international actors, the focus of the Bennett government has been to “shrink the conflict.” This means removing some existing irritants for the Palestinians, such as allowing the construction of a modest number of Palestinian homes in Area C of the West Bank, increasing the number of Palestinians allowed to work in menial jobs in Israel, and enabling more advanced cellphone networks. Such an economic peace is understood by Israeli leaders not as a path to genuine Palestinian statehood but as a substitute in order to sustain the occupation. After explaining his opposition to a Palestinian State of any sort, Bennett added that: “My outlook is a very business-like one. If we create more business, strengthen the economy and improve living conditions for everyone in Judea and Samaria, that would be better.”

In 2012, Jonas Gahr Stoere, then the Norwegian foreign minister and the chair of the AHLC, gave an interview to Akiva Eldar of Ha’aretz. Eldar asked Stoere (who is now Norway’s Prime Minister) whether the international community’s funding of the Palestinian Authority amidst Israel’s deepening occupation was actually leading to a Palestinian State. Stoere replied that: “Once it will be clear to everyone that the donors’ mechanism is perpetuating the status quo rather than contributing to peace, we will have to reconsider. We are not quite there yet.” Nine years later, the answer is now self-evident.

 What a viable and principled international strategy to end the occupation should look like

 In my October 2021 report as Special Rapporteur to the United Nations, I have proposed five foundational criteria that would shape a viable and principled strategy by the international community to end the Israeli occupation and enable Palestinian self-determination. As I noted in the report:

‘Any efforts by the international community, collectively or individually, to create a framework for supervising and ending the occupation that does not place these criteria at or near the core of its endeavours will almost certainly crash upon the shoals of Middle East realism.’

(i) Because of the vast asymmetry in power between Israel and the Palestinians, active international intervention is indispensable.  Israel’s multiple advantages – its regional military strength, its strong economic ties to the developed world, its complete territorial control over occupied Palestine, and its enduring relationship with the world’s sole superpower – ensure that it will continue to dictate what happens on the ground and at any negotiating table. Only the decisive engagement of the international community to counter the abuse of this overwhelming power can alter this downward trajectory.

(ii) The framework for fully ending the occupation must employ a rights-based approach, anchored in international law and human rights. The prevailing diplomatic playbook – relying on the realpolitik of Israel’s ‘facts on the ground,’ Palestinian weakness, and the absence of law – has resulted in three decades of political failure in Middle East peace-making. Replacing it with a rights-based approach – which, as noted in my report, would “engage the considerable tools of accountability and the already widely-endorsed body of U.N. resolutions and international law” – offers the best chance to end the occupation and open the window to the possibility of a shared and prosperous future together for Palestinians and Israelis.

(iii) The end goal must be the complete end of the occupation and the realization of Palestinian self-determination. As I noted in the October report,

‘Self-determination is at the heart of modern human rights, and it is the sin qua non for a just and final peace. Palestinian self-determination must be based on the 1967 borders and the realization of authentic sovereignty, if a genuine two-State solution remains a possibility. But if this faint hope no longer exists, then self-determination must be centred on individual and collective equality rights for all those living between the Mediterranean and the Jordan…’

(iv) Israel is a bad-faith occupier. The conduct of the occupation for the past 54 years has shown Israel to be unwilling to comply with its obligations under the law of occupation. Israel’s

‘…non-compliance with hundreds of United Nations resolutions from the Security Council, the General Assembly and the Human Rights Council regarding the occupation, and its refusal to abide by the Fourth Geneva Convention, are not honest policy differences with the world, but a sustained show of defiance meant to preserve the fruits of its conquest. To assume that Israel is a responsible occupier, marred only by an errant and unfortunate policy towards the Palestinians, is to indulge in the magical thinking that has led to the past diplomatic failures.’

(v) The occupation must end with all deliberate speed. Military occupations in the modern world are required to be temporary, with the occupying power expected to end the occupation as soon as possible, and to abstain from any attempt to annex any of the territory it occupies. As I noted in my report to the General Assembly:

‘Alien rule in the 21st century can only be justified in exceptional and highly conditioned circumstances. Modern international law and effective international statecraft do not tolerate an indeterminate clock for injustice to end, particularly for an avaricious occupation that has long ago slipped the restraining bonds of legitimacy.’

Conclusion

 Over the past two decades, the Israeli political leadership has moved well past a two-State solution, with recent prime ministers, including Benjamin Netanyahu and Naftali Bennett, willing to say out loud that they intend to control the Palestinian territory in perpetuity. Indeed, look at any detailed map of the Palestinian territory, and one sees not a Palestinian State-in-the-making, but a shattered territory encased in formaldehyde. The leading international actors dealing with Israel and Palestine – who are well represented at the regular meetings of the AHLC – would prefer that certain realities not be true, so they act as if they can be ignored. This is Israel’s sweet spot: even as its intensive settlement enterprise has reduced the possibility of a genuine two-State solution to a mirage, it welcomes the international community’s ongoing mantra of two States because it perpetuates the illusion that such a solution is still within reach, and all that is needed is the right diplomatic magic sauce to make it happen.

The actions of the Israeli leadership are entirely rational: an acquisitive regional power which wishes to permanently annex occupied territory and maintain the statelessness of five million subjects knows that it has to maneuver carefully in a post-colonial world. It has no desire, and no incentive, to reach a different reality. Rather, it is the actions of the leading international actors – principally the United States and Europe – that badly fail the rationality test. This occupation – which, according to two former Israeli ambassadors to South Africa, has become indistinguishable from apartheid – could not have lasted for the past 54 years, all of it in the global spotlight, without the malign neglect of these leading actors. At the end of the day, the problem is not ignorance or lack of evidence – this is, after all, by far the best-documented conflict in the modern world – but the remarkable unwillingness of the international community to act upon its own comprehensive rules-based framework for peace and self-determination by imposing accountability on the offending party. In the absence of dynamic international countermeasures, the present direction is clear: this occupation will not be dying of old age.

Michael Lynk is Associate Professor of Law at the Faculty of Law, Western University, London, Ontario, Canada, and was appointed by the U.N. Human Rights Council as Special Rapporteur for human rights in the occupied Palestinian territory.