Occupier’s Law

by Rami Shehade

Part One: Military Orders as the legislative basis of occupation administration
7th June 1967: the Israeli military occupy the Palestinian West Bank, East Jerusalem and Gaza Strip. On the same day, the occupying force issues the first Military Proclamation, asserting control over the area “in the interests of security and public order”. In the intervening thirty-four years more than 1,300 further Military Orders have built on the foundations laid that day, creating a military administration which today governs myriad aspects of the lives of the occupied population.
The cornerstone of the administration is Military Proclamation 2, which assumed the powers and property of the previous government. The Area Commander thus stands as supreme law maker, governor and judge of the occupied territory. It also ensures that previous tax laws remain in force, unless contradicted by a subsequent Military Order. The occupied population are therefore compelled to financially support their occupier, with severe punishment threatened for any who flout its laws.
The third Military Proclamation detailed the wide powers of the administration in enforcing “security”. These included censorship, curfew, closure, confiscation and, under Article 67, the right of any soldier to take a “wrong-doer” to a centre for “administrative detention” without trial for up to six months. In April 1970, Military Order 378 cancelled these provisions, instead expanding the occupier’s jurisdiction and powers further still.
Part Two: Military Orders and international humanitarian law
The twentieth century witnessed a terrifying escalation in the scale and scope of war. The period also saw the consequent evolution of a body of internationally recognised, humanitarian principles to protect civilian populations from the worst excesses of military conflict.

The Geneva Conventions of 1949 form a key part of this humanitarian law, the response of the international community to Nazi atrocities during the Second World War. Given their near universal acceptance by the community of nations, they constitute part of international customary law binding on all states in all circumstances. Each of the four conventions deals with a category of persons who are not or no longer taking part in hostilities. The Fourth Geneva Convention directly addresses the protection of civilian persons in times of war.
Initially at least Israel indicated that the Fourth Geneva Convention was to apply in the occupied Palestinian areas. Article 35 of the third Military Proclamation stated: “the military courts … should adhere to the terms of the Geneva Convention… If there is a contradiction between this order and the above-mentioned convention then the regulations of the convention will take precedent.”
Just over four months later, in October 1967, Article 35 was cancelled by Military Order 144. Since then the Israeli government has argued that the Fourth Geneva Convention is not applicable in the Palestinian areas under its occupation.
Though a signatory state of the Fourth Geneva Convention, the State of Israel denies that it is legally bound in the areas occupied since 1967. Israel’s main argument is that the Fourth Geneva Convention only applies where the legitimate sovereign of the territory in question has been displaced by the occupant. It argues that the Jordanian government which ruled the West Bank from 1949 to 1967 was not the legitimate sovereign and therefore the Convention is not applicable.
Though Israel refutes the Convention’s legal applicability, it claims that it does in fact apply the humanitarian spirit of the Convention’s provisions. However, the Convention expressly states that confiscation of land, attacks on civilian areas, demolition of housing, travel restrictions, deportations and the building of civilian settlements – all features of the Israeli occupation – are all violations of its humanitarian provisions.

Israel has, however, accepted as binding another key basis of humanitarian law: the Fourth Convention Respecting the Laws and Customs of War on Land and its annexed Regulations. These provisions, developed earlier in the century, are more commonly known as the Hague Regulations of 1907. In a number of cases the Israeli High Court has confirmed the applicability of the Hague Regulations. It has noted both that international law forms part of Israeli municipal law and also that the Hague Regulations bind the military administration of the occupied territory.

Nevertheless, despite acknowledging the applicability of the Hague Regulations, Israeli legal experts have interpreted several fundamental articles very narrowly, thus limiting the power of the Regulations to protect the occupied population. Their treatment of Article 43 of the Regulations is a good example. The Article states: “the authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all measures in his power to restore and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.” Although the Article therefore greatly restricts the ability of an occupying power to change the laws in force in an occupied territory, Israel has repeatedly justified significant changes to existing law by arguing that the clause “unless absolutely prevented” allows them legally to do so.
Part Three: the development of Military Orders to Oslo and beyond
Over 1,300 Military Orders have altered the legal framework in existence before the occupation in 1967. The development of the military administration’s new legal structure can be traced in four broad phases leading up to the agreements signed between the Israeli government and the PLO. What happened after Oslo and the Declaration of Principles in 1993 shows a continuing trend: Military Orders facilitate on the one hand control of the occupied people and on the other settlement of the occupied land.
The first phase prior to Oslo, from 1967 to 1971 aimed at exerting control over all aspects of life amongst the Palestinian population. Freedoms of assembly and expression were curtailed by orders prohibiting meetings of ten or more people and preventing publication or distribution of newspapers without the permission of the military authorities.
Economically too the life of the population was restricted, examples abound: Military Order 49 prohibited the transfer of goods in and out of the Occupied Territories without permission; Military Orders 9 and 21 gave the Israeli authorities power over bank funds, allowing them to freeze bank assets and remove accounting records in whichever way they deemed necessary; and Military Order 25 criminalised business transactions involving land and property without a permit from the military authorities.
The system of control is exemplified by the identity card system. These cards were issued to residents of the occupied territories following the Israeli census of the areas in 1967. Residents were then legally required to carry the identity card at all times. At the same time, the Israeli authorities retained the right to repossess anyone’s identity card without giving a reason. The approximately 200 orders issued during this phase continue to serve as the foundation for the Israeli occupation. These Military Orders were not published and were not made available to lawyers at the time.
During the second phase, roughly lasting from 1971 to 1979, Military Orders were focused on facilitating Jewish settlement in the Occupied Territories. The occupied people were disenfranchised by Military Order 418, which abolished the participation of all local authorities or institutions and national planning committees in the planning of land use. This made possible the zoning of large areas for the building of Jewish settlements. Meanwhile, a separate Jewish system of administration was developed: Military Order 569 created a “department for special transactions of land” to allow registration of land for Jewish settlement; and, through Military Order 783, five Jewish regional councils were established in the West Bank, giving them jurisdiction over groups of Jewish settlements in their area.
The third phase, from 1979 to 1981, saw a development of this process of settlement: the influx of Jewish Israeli civilians into Palestinian areas occupied in 1967 continued; moreover the connections between Israel and its settlers in the occupied territory were entrenched. This was effected by extending Israeli law to Jewish settlers and excluding them from the jurisdiction of the courts of the occupied territories. In addition, the administration of Jewish settlements was developed to be consistent with Israeli local government. Alongside this development, the Civil Administration was formed, taking on some of the functions previously exercised by the military government.
The fourth and final stage prior to Oslo focused on detailed planning regulations regarding Jewish settlements. In addition a wide range of orders were issued that directly related to financial matters in the West Bank and Gaza Strip, particularly controlling the flow of money to and from the Occupied Territories. A number of tax laws were amended and Value Added Tax introduced. These changes increased the amount of revenue the occupation authorities collected from the occupied population.

The interim period envisaged by Oslo pending final status negotiations between occupier and occupied has seen a further acceleration of the process unfolding since 1967. The use of Military Orders to bring about a new physical situation on the ground has continued, but, with the date for the final status of the territory to be decided set for 1999, the Israeli authorities sought to tighten their control and entrench their physical presence through settlement more quickly.
Thus, the occupied population has continued to suffer the loss of home, liberty and life:
between 1993, the year of the Declaration of Principles, and 1999, when final status was to be decided, 492 Palestinian civilians were killed by the Israeli military or settlers;
meanwhile in September 2000 there were still 1,610 Palestinian prisoners in Israeli jails, almost all having suffered some form of torture;

between 1987, the year in which resistance against the occupation began through the first Intifada, and 1999 over 16,700 Palestinians were made homeless after the Israeli forces demolished 2,650 homes – one third of these demolitions occurred after the signing of the Oslo accords;

and almost five million Palestinians remain refugees, displaced by war in 1948 and 1967.
The subjugation of the occupied people has taken place alongside the acquisition of the occupied land:
in 1999 alone Israel confiscated over 40,000 dunams of Palestinian land (which equates to over 10,000 acres) and since 1967 it has taken 79% of the West Bank and Gaza Strip;
this confiscated land is used for settlement and the building of roads to serve settlements;
more than 400 kilometres of such roads have been paved between 1994 and 2000 and now dissect the occupied territory into isolated pockets of Palestinian populations;
meanwhile, since the signing of the Oslo accords, the number of Israeli settlers living in the West Bank and Gaza Strip has doubled to 200,000, a figure which excludes the concentration of settlements around Palestinian East Jerusalem;
in the Gaza Strip the facts are particularly stark: Israeli settlers constitute a mere 0.64% of the total population and yet Israel controls 40% of the land;

and beneath the land more than 80% of Palestinian groundwater is confiscated by Israel, supplying 25% of all its water and catering for Israeli water consumption per capita which is four times that amongst Palestinians.
This pattern of land expropriation and settlement expansion was carried out at a higher rate under the former Israeli Labour party prime minister Ehud Barak, than his Likud party predecessor Binyamin Netanyahu.

Part Four: Military Orders and the Palestinian economy
Military Orders have also had a devastating impact on attempts to build a viable Palestinian economy; they have been used to orchestrate and perpetuate a relationship of control and dependency between the Israeli ‘centre’ and the Palestinian ‘periphery’.
Since 1967 Military Orders have aimed to prevent investment and stall the development of Palestinian industry. During the first Intifada from 1987 to 1993 over half the Military Orders concerned restriction of the Palestinian economy. This trend continued with the Paris accords of April 1994, which gave Israel the right to control the exports and imports of Palestinian goods if those goods would compete threateningly with any Israeli industry.
However, the most devastating effect on the nascent economy has been the effect ‘internal closure’. Such action by the military authorities prevents movement between different Palestinian villages and towns within the West Bank and Gaza Strip with primary roads blocked by Israeli soldiers and physical barriers placed on many secondary roads. Vehicular travel thus becomes almost impossible and fraught with personal risk.
Since Oslo “closure” has continued as a instrument of collective oppression. Israeli dominance allows them to cut off both the disparate Palestinian population centres in zone A and those Palestinian town and villages still under Israeli and ostensibly “joint” control in zones B and C.
The economic consequences of such “closure” are far-reaching. Unemployment soars from 11% to nearly 30% within a few days of “closure”.
100,000 Palestinians – compelled to find work in Israel because the Palestinian economy has been too retarded by Military Orders and occupation to provide sufficient employment – lose their jobs in Israel. In addition internal restrictions on movement deprive around 82,000 of access to their places of work within the occupied territory. In the last quarter of 2000 the unemployment rate rose to 38% of the labour force.
Poverty too increases. Within a few weeks of closure over one third of Palestinians were reduced to living on around two U.S. dollars a day as the poverty rate climbed by 50%.

Furthermore the disruption in Palestinian education causes long term damage to the economy. Restrictions on movement and specific attacks on schools seriously jeopardises the educational system and leaves a future generation without the skills required to develop a brighter future in the region.
Closure is, therefore, the logical consequence of the occupiers’ planning policy from 1967 to date.