A fresh perspective: The Supreme Court’s gift to the Boycott movement

The early years after the liberation of Judea, Samaria and Gaza saw an interesting legal paradigm applied.

By DAN ILLOUZ
Updated: JULY 30, 2015 16:09
Anti-Israel demonstrators march behind a banner of the BDS organization in Marseille, June 13. (photo credit: GEORGES ROBERT / AFP)
Anti-Israel demonstrators march behind a banner of the BDS organization in Marseille, June 13.
(photo credit: GEORGES ROBERT / AFP)
As the BDS movement has been making news worldwide, we must also look inside of Israel to see which groups at home also help further this global campaign.
A new study published by Legal Grounds, a campaign advocating on behalf of the legal basis for Israel’s legitimate control of Judea, Samaria and Jerusalem, points the finger at none other than the Supreme Court.
The argument set forth by Legal Grounds is convincing: While the government has had an official policy since 1967 of rejecting the claim of occupation in Judea and Samaria, the Supreme Court considers these territories under occupation. This gives ammunition to those who want to censure Israel for illegal activities, by allowing them to cite Israel’s own Supreme Court as a legal source claiming these lands are under occupation.
In the interest of full disclosure, I must point out that Legal Grounds is a campaign which I fully support and which I have helped out in the past. Its agenda, attempting to change the discourse with respect to the legality of Judea and Samaria and to stand up for Israel’s legal rights to these areas, is of great importance to me both as a lawyer and as an Israeli.
INTERNATIONAL LAW is unclear as to the legal status of Judea and Samaria, and Israel has good reasons to claim that these lands are not under occupation.
In fact, the Mandate for Palestine clearly defined these lands as being meant for a future Jewish state. The mandate recognized the “historical connection of the Jewish people with Palestine and to the grounds for reconstituting their national home in that country.” This is the last binding legal document addressing this area which is available to this day.
In fact, many people claim that the 1947 Partition Plan was also a binding plan. However, this is completely false. According to the UN’s own Charter (Articles 10 and 14), General Assembly resolutions are mere recommendations and therefore are not binding. Even if we were to ignore that fact, it is clear that after the rejection of the Partition Plan by the Arab nations, Israel had no obligation to the plan.
After Israel’s independence, Jordan and Egypt occupied parts of the British Mandate meant for the Jewish state – Judea, Samaria and Gaza. This was an illegal occupation since these lands were mandated to become part of a Jewish state. In 1967, Israel liberated these land from foreign occupation. It did not occupy them.
This position was reaffirmed several times by Israel, including in recent history. For example, in the Annex to the decision “Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory” by the International Court of Justice (ICJ) of 2004, there is a summary of Israel’s official position with regard to the status of Judea and Samaria.
Israel, it says, does not consider that the Fourth Geneva Convention “is applicable to the occupied Palestinian territory,” citing “the lack of recognition of the territory as sovereign prior to its annexation by Jordan and Egypt” and inferring that it is “not a territory of a High Contracting Party as required by the Convention.”

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More recently, on July 9, 2012, the government- mandated Levy Report came out with similar conclusions: “Our basic conclusion is that from the point of view of international law, the classical laws of ‘occupation’ as set out in the relevant international conventions cannot be considered applicable to the unique and sui generis historic and legal circumstances of Israel’s presence in Judea and Samaria spanning over decades…. Therefore, according to international law, Israelis have the legal right to settle in Judea and Samaria and the establishment of settlements cannot, in and of itself, be considered to be illegal.”
In December of the same year, when a new government was formed, the cabinet passed resolution 5251 which reads: “The Jewish people has a natural, historical and legal right to its homeland and to its eternal capital, Jerusalem….
The State of Israel, as the state of the Jewish people, has a right and claim to areas, the status of which is under dispute, in the Land of Israel….”
This has been Israel’s legal position ever since 1967, explaining that Judea and Samaria cannot be occupied since they were not legally held by any sovereign nation beforehand.
All the while this has been the official position of successive Israeli governments, both from the Left and the Right, the Supreme Court developed a parallel doctrine.
The early years after the liberation of Judea, Samaria and Gaza saw an interesting legal paradigm applied: The government rejected the de jure application of occupation law in Judea and Samaria but voluntarily took upon itself to apply the humanitarian sections of the Fourth Geneva Convention.
Thus, Israel opposed the description of the situation as an occupation but found ways to properly handle the territories and to protect the rights of the Palestinians.
HOWEVER, THE court later ignored this important distinction. “Since 1967, Israel has been holding the areas of Judea and Samaria in belligerent occupation,” the court said in one decision. “The Judea and Samaria areas are held by the State of Israel in belligerent occupation,” in another one.
In 2007, in the HCJ 9132/07 Albassioni vs Prime Minister decision, the Supreme Court held that the occupation of the Gaza Strip had now ended, thus implying its agreement to the position that there was an occupation in Gaza before the disengagement.
This was also expressed in A. vs State of Israel, where the Court said: “A change occurred in September 2005, when Israeli military rule in the Gaza Strip ended and the territory ceased to be subject to belligerent occupation,” differentiating Gaza from “the territories that are under the belligerent occupation of the State of Israel (Judea and Samaria).”
These sources are only a few of the many times the Supreme Court falsely reaffirmed that the territories were under occupation, rather than specifying as it should have that Israel is voluntarily applying the humanitarian parts of Occupation Law in order to better the lives of the Palestinians.
The problem with the Supreme Court is not only that it is using an inaccurate doctrine. It is also not only the fact that in a democratic country, the Supreme Court should apply the legal framework decided by elected officials.
The real problem is the damage that these decisions do to Israel internationally.
For example, one of the greatest campaigns of the Boycott, Divestment and Sanctions movement against Israel is based on the security barrier, which it calls the separation wall. On this subject, the delegitimization movement against Israel got a tremendous victory when the ICJ decided the fence was in fact illegal.
Since then, and until today, those movements used this decision to justify their campaign and strengthen it. One must ask: What was the ICJ’s case based on? The answer is simple: The law of occupation. And how did the ICJ get to the conclusion that there is an occupation in Judea and Samaria? After admitting that the State of Israel’s official position was that there was no de jure occupation in Judea and Samaria, the court went on to claim that there were other possible interpretations. Then, in order to put a nail in Israel’s interpretation’s coffin, the court cited the Supreme Court of Israel calling it an occupation, citing the HCJ 201/09 Physicians for Human Rights vs Prime Minister ruling! IN OTHER words, the Supreme Court’s clumsy characterization of Judea and Samaria became a tool in the hands of the delegitimization movement to attack Israel for allegedly occupying Judea and Samaria.
This is only one example of the many times BDS supporters and Israel delegitimizers cite the Supreme Court in their attacks. In many ways, the greatest tool that the BDS has against Israel is Israel’s own Supreme Court, fueling the BDS movement by contradicting the official legal position of Israel.
The paper published by Legal Grounds sheds light on this fact and policy-makers have to work hard to make sure judges go back to applying the laws decided in Israel by policy-makers, as they do everywhere in the world, instead of importing their own interpretation of international law.
The writer is an attorney and a former legislative adviser to Knesset’s coalition chairman; he previously served in a legal capacity at the Foreign Ministry. He is a graduate of McGill University Law School and Hebrew University’s master’s program in public policy.