Can a military occupation be ‘liberal’?
A newly disclosed U.S. government study reveals the clash between martial law and rule of law in the West Bank.
Many of Israel’s defenders in America identify as libertarians or classical liberals. Although Israeli treatment of Palestinians is pretty much the definition of top-down arbitrary rule, there’s an argument that Israel at least has a liberal system of government internally, and there is a far more liberal culture worth saving in Israel than in the rest of the Middle East.
An American-Israeli settler interviewed for Louis Theroux’s recent BBC documentary lays out the argument. “We are the tip of the spear fighting the battles of America and defending the entire Western world, and not just the Western world, anyone who wants any semblance of freedom and liberty in their lives,” he says. Asked about Palestinians’ freedom, he says “I don’t have tremendous compassion for a society that has an unquenchable, genocidal, theological bloodlust. It’s like a death cult.”
But a document recently published by former U.S. official Josh Paul casts the conflict in a different light. In 2008, Paul was part of a study of the Palestinian Authority’s counterterrorism regime in the West Bank, meant to address Israeli government concerns. The study found that many Israeli complaints arose from Palestinians’ insistence on due process and the rule of law. Israeli authorities not only opposed but seemingly failed to grasp the need for evidence-based, transparent system for detaining suspects.
Israel’s accusation that the Palestinian Authority is too quick to let terrorism suspects go, the authors found, “reflects a disconnect between Israeli understandings of the authorities of its security forces in the Occupied Palestinian Territories, versus the Palestinian understanding of the rule of law.” There was a clash between liberal and illiberal cultures — specifically, between the would-be Palestinian state-builders who wanted a real court system, and the Israeli military authorities used to ruling by force and fear.
Reading the study’s recommendations for really drove home what the gap was about. While its recommendations for the Palestinian Authority were mostly about institutional consolidation and efficiency, its recommendations for Israel touched on fundamental problems with the government’s mentality:
Recommendation 3.2: It should be incumbent upon Israel, when making requests for security and judicial action by the Palestinian Authority Security Forces and criminal justice system, that the content of such requests should be compliant not only with Israeli legal requirements, but with Palestinian ones as well. While a protocol should be agreed by both sides, such compliance should at the least include sufficient evidentiary materials to meet Palestinian prosecutorial and judicial requirements to press charges; or else, such lists should be considered no more than recommendations for further development by the Palestinian intelligence sector.
Mind you, Paul was representing the Bush administration, which was not exactly known for respecting the rights of detainees. But the Bush administration’s kidnapping and torture programs in the war against Al Qaeda were an extraordinary measure that American institutions pushed back on and did not (yet) expand or bring to other theaters. Arbitrary arrests and indefinite detention, on the other hand, are a decades-old institutionalized part of the Israeli security regime. As the report states:
Israel does not try every Palestinian it detains, nor, although statistics are not available at this time, does it detain for significant periods every Palestinian it arrests. Rather, arrests and detentions form a regular part of intelligence gathering activities for the Government of Israel, and are often thought to be more pre-emptive or deterrent than they are reactive to specific threats. As Israel focuses on threats to its own state and citizens, it likely prioritizes these threats above those which are directed against the Palestinian Authority. From a Palestinian perspective, therefore, it is often seen that Israel, aside from the legality of its actions in arresting and detaining Palestinians, does itself maintain a revolving door, releasing a large proportion of those arrested within a short period of time.
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A final element to be considered here is the method by which Israel does transfer requests for arrest, detention, or other security actions to the Palestinian Authority. The common mechanism for this is the provision by the Israeli security establishment to elements of the Palestinian security establishment, of “lists” of targets (which may be people or institutions) and ‘actions requested,’ such as arrests or closures. These lists, which are not displayed in this report due to their sensitive nature, but examples of which have been viewed by the reporting team, commonly lack any evidence to substantiate the validity of the targets. Indeed, Palestinian reviews of the lists have shown many of them to be inaccurate or outdated, requesting, for example, the detention of deceased persons. These lists, then represent the meeting of the thin requirements of the Israeli military and intelligence establishment with the rather more weighty ones of the Palestinian criminal justice system. The P.A. cannot simply arrest and administratively detain persons because Israel wants it done; it has processes it must follow, and these processes coincide, for the most part, with international human rights and legal best practice.
If the State of Palestine was being built by eager, scrupulous lawyers, their influence has since waned. The report was written right after the split between the West Bank and Gaza. In the former territory, the Palestinian Authority has not held a single election since 2006 was written, instead growing more repressive and reliant on Israeli backing to stay in power. In the latter, Hamas has installed a one-party regime of its own.
Meanwhile, the fundamental character of Israeli rule over the West Bank has not changed. Today, 70% of Palestinian families have a relative in prison, and a full 40% of all Palestinian men have passed through those prisons since 1967. Many were tried in Israeli military courts with a 99% conviction rate — or simply never charged with a crime at all. Around 35% of Palestinians imprisoned by Israel today are held under “administrative detention.”
The irony of the Palestinian question is that, although its greatest backers have been Communists and Islamists, the Palestinian grievance is a basically liberal one at heart. Palestinians’ country was taken over by an arbitrary regime that treat their life, liberty, and property as forfeit. Of course, the experience of being oppressed is no guarantee against becoming an oppressor, as Israeli history itself demonstrates.
However, the image of Israel trying to preserve a liberal system against an illiberal Palestinian horde is simply incorrect. Palestinians are not rebelling against individual rights or rational government, but against a system that rules by denying both. And there are Palestinians who really do want an alternative rooted in freedom and liberty.