What is the Role of Neo-Liberalism in the Indeterminacy of the Occupation?

This year marks the fiftieth anniversary of the beginning of the Israeli occupation of the West Bank and Gaza, known to most of the world as the ‘Palestinian Territories’, resulting from the Six Day War in 1967. In the brief respites between the pomp and grandstanding of official Israeli celebrations for this occasion, US attempts on the part of Jared Kushner and others to restart peace negotiations between Israel and the Palestinians have failed spectacularly. It seems that the Trump administration may even have given up on it’s coveted legacy-builder of peace in the Middle East before words had even begun to give way to action. Unfortunately, this is hardly a new development. Since the time that the ‘groundbreaking progress’ that was made at the talks at Madrid, Oslo, Camp David and elsewhere in the 1990s gave way to the disillusionment of the Second Intifada, there have been numerous, fruitless attempts to solve the crisis. The Clinton administration attempted to leave its mark on history with the ‘Clinton Parameters’, a move that would have left approximately 80% of Israeli settlers at the time in the West Bank under Israeli control (it goes without saying that such an aim has only been complicated in recent years with the expansion of settlement efforts). More recently, over the last seven years, we have witnessed brokerage on the part of the Obama administration. These efforts, spearheaded by John Kerry ultimately lead to proposals set out by Mahmoud Abbas in September 2014 which advocated a period of direct talks, following which a process of phased Israeli-withdrawal to the pre-67 lines would take place, albeit with a number of agreed land swaps to take into account demographic challenges, such as those highlighted in the Clinton Parameters. The catch was that the Palestinian Authority insisted that in order for Israel to demonstrate that it is coming to the table in good faith, there would need to be a freeze on construction in the settlements as well as the release of a number of Palestinian prisoners from Israeli jails whose cases had been raised in previous negotiation attempts. Regrettably perhaps, both Israel and the US rejected this plan, giving incentive to the Palestinians to instead turn to the UN, where they requested that the Security Council back a resolution on Israeli withdrawal. The Palestinian Authority then later attempt to join the International Criminal Court (ICC). In the resulting standoff, the Israeli government withheld approximately NIS 500 million in Palestinian tax revenue from the PA.

One thing among many that ultimately complicates the resolution of the Israeli-Palestinian conflict is the dispute regarding the legal status of Israel’s presence in the West Bank and Gaza. Though, instead of damaging Israel at least in the short-to-medium term, the status of ‘belligerent occupier’ has somewhat shielded the Jewish state from accusations of practises akin to apartheid, as practised in South Africa. Some, such as John Dugard and John Reynolds (2013) charge that Israel has on a number of fronts acted in contravention of the ‘International Convention on the Suppression and Punishment of the Crime of Apartheid’ (1973). Particularly Article 2(A) of the convention which defines apartheid, in part, as the “denial to a member or members of a racial group or groups of the right to life and liberty of person: by murder of members of a racial group or groups; the infliction upon the members of a racial group or groups of seriously bodily or mental harm, by the infringement of their freedom or dignity, or by subjecting them to torture or to cruel, inhuman or degrading treatment or punishment; by arbitrary arrest and illegal imprisonment of the member of a racial group or groups”. As evidence of Israel’s alleged contravention of this article and others in the convention, Dugard and Reynolds note rates of incarceration as well as measures taken to prevent protest gatherings among other measures taken in the West Bank and elsewhere, setting this to the backdrop of Israel’s official ethno-religious character as defined by legislation such as the ‘Law of Return’ (1950). However, Yaffa Zilbershats (2013) argues that Dugard and Reynold’s comparison to apartheid does not stand, stating that the latter have conflated the real legal status of Israel’s occupation of the Palestinian territories with a situation of transfer of outright sovereignty which as yet has not taken place. Zilbershats thus reasons that the Hague Regulations and the Fourth Geneva Convention effectively allow for the measures Israel takes in the occupied territories under the logic of security needs. He therefore holds that Israel simply acts as any other ‘belligerent occupier’ according to the basic rules of military occupation set out under international law.

Aeyal Gross (2017) notes the scholar Roberts’ work in terms of applying ‘non-technical tests’ regarding how we apply the law of occupation in differing circumstances. As Gross notes, though Roberts concedes that occupations in their varying contexts can sometimes be difficult to define, “this should not necessarily affect the applicability of the relevant sections of the humanitarian laws of war.” He further notes Roberts’ assessment that “every time the armed forces of a country are in control of foreign territory and find themselves face to face with the inhabitants, some or all of the provisions of the law on occupations are applicable.” Yet Gross contests the apparent flexibility of this assessment, particularly in the case of Israel’s military rule over the Palestinian territories due to the way in which it has sought to “reduce friction” between occupying forces and occupied population. Gross here of course is referring to the way in which even though the average Palestinian on the street of a city such as Ramallah or Bethlehem may not always directly encounter forces of the occupying power, through mechanisms such as the Palestinian Authority’s security coordination with Israel, the fragmentation of areas of autonomous Palestinian rule, or in the case of Gaza the blockade and restriction on movements of people and goods, etc. said individuals are still very much subject to the rule of the occupier.

For Gross, a shift in terms of ‘legal realism’ from a ‘conceptual’ approach towards a ‘functional’ one is important if “the law of occupation is to create accountability rather than impunity, prevent protection gaps, provide for the protection of people living under foreign control, and take account of political and technological transformations in the conduct of occupation.” This is, Gross notes, part of recognising that “obligations should follow from the exercise of power and control”. As he further notes, this is not something that can be adequately assessed by the preexisting binary of ‘sovereignty vs. occupation’. Indeed, the nature of the Israeli occupation of the Palestinian Territories is distinguished by its indeterminacy. In regards to the ‘dichotomy’ of sovereignty and occupation, Gross notes that “[t]he insistence of the law of occupation that sovereignty still rests with the state whose territory was occupied (or with the people living under occupation, based on the principle of self-determination) flies in the face of a reality in which this sovereignty is indeed naked and another power is exercising effective control, albeit in theory, without any sovereignty.” In this way we can frame the seeming contradiction between the theoretical temporariness of the occupation and its persistent reality as we mark the fiftieth anniversary of the Six Day War. In a similar vein, Dugard and Reynolds respond to Zilbershats’ critique of their work commenting that the Geneva Conventions, as “European instruments written in a time of lingering European empire”, took into account the fact that occupations could indeed be transformed into something more permanent, akin to colonialism. Though taking a notably different point of departure, the report produced by the Levy Commission, headed by former Israeli Supreme Court Justice Edmund Levy, ultimately concurs. The report notes that Israel’s presence in the Palestinian Territories is ‘fundamentally different’ in so far as “its control of the territory spans decades and no one can foresee when or if it will end”. The report as a whole challenges the established notion that Israel holds the status of ‘military occupier’ and as such suggests that the settlements are in fact not illegal under international law.

Naomi Klein in her book ‘The Shock Doctrine’ (2007) discusses the relationship between political and social crises and economic reforms aimed at the privatisation of publicly owned social provisions and de-regularisation of the economy. As she notes, this style of economics which aims at ‘trickling down’ wealth from the owners of industry to their workforce and consumer base, often referred to as ‘neo-liberalism’, has in past decades formed the basis of some interesting experiments. Klein thus highlights the notable historical example of General Augusto Pinochet’s rise to power in Chile in the 1970s. The Coup D’etat of Pinochet, who had mustered forces to other throw the democratically elected socialist leader of Chile, Salvador Allende, in 1973 was remarkable for the violence it witnessed. Hundreds were executed in football stadiums, tanks and aircraft attacked government buildings, leftist activists were ‘disappeared’ and in some cases their children even given to suitably right-wing parents. Here, the laissez-faire economist Milton Friedman and a number of others from the Chicago School of Economics saw an opportunity to put forward a case for a ‘purer’ capitalism, one that under the watchful eye of Pinochet’s regime would see most public services in Chile privatised, including the country’s social security system. Chile, from the 1950s onwards had been part of South America’s ‘Southern Cone’ of Developmentalist nations pursuing state investment in public infrastructure. However, Friedman and others viewed this block as a regime of excess and decay, seeking instead to replace it with ‘capitalist efficiency’ that would cut bureaucracy in favour of a market ‘free’ of state interference. As Klein further notes, despite protestations from the international community regarding the use of undue force and quashing of democracy at the hands of Pinochet, the myth of Chile’s ‘economic miracle’ was created. As such, while the horror of the violence enacted on the people of Chile was condemned, world leaders including the likes of Ronald Reagan and Margaret Thatcher would praise the economic restructuring that had taken place. As Klein notes, soon after Pinochet’s death in 2006, the New York Times would even go as far as to laud him for “transforming a bankrupt economy into the most prosperous in Latin America.” As Klein further assesses, this praise missed the nuances which complicates the reality

One of the remarkable analyses Klein offers us is the concept that in the post-9/11 economy, markets have learnt to adjust to an undercurrent of permanent terror. Though the Nasdaq dropped following the catastrophic attacks in New York, she notes that this trend was later reversed following other attacks such as the 7/7 bombings in London in 2005. The logic for this is rather simple. Take for instance the large scale mobilisation needed to permit coalition forces to invade Iraq in 2003. Vast amounts were spent on everything from state-of-the-art defence technology to basic equipment, something that naturally boosted a burgeoning ‘defence industry’ (or ‘arms trade’, if you’re so inclined). The new reality entailed that the manifestation of greater security threats potentially meant greater defence spending, forming a somewhat symbiotic relationship. As Klein further notes, the world is “becoming less peaceful while accumulating significantly more profit.” As Klein further notes, to dismiss this as some kind of conspiracy with conscious intent hiding behind these actions would be naive, let alone belittling of the complex factors behind today’s conflicts. Yet one thing that remains clear is the damage caused to the economic incentivisation of ending conflicts. In this vein, Klein highlights the remarkable ability of the Israeli economy to not only be “resilient in the face of major political shocks such as the 2006 war with Lebanon or Hamas’s 2007 takeover of Gaza, but also that Israel has crafted an economy that expands markedly in direct response to escalating violence.” This factor is down to the international reputation built for Israel’s homeland security industry long before US and European companies followed suit. As such, Klein notes (writing in 2006–7) that the Israeli Export Institute estimated there being around 350 homegrown companies operating in this market, with 30 such companies entering it in 2007 alone. As she further mentions, the development of this ‘guns and caviar’ model has had a “profound and little-examined impact on the parallel disintegration of prospects for peace.” Yet she points out that things had not always been that way. In the early 1990s, faced with a less certain world and the simultaneous fear of economic boycotts and interest in emerging markets, much of the Israeli business community believed that protracted conflict was against national interests. For example, Dan Gillerman, former president of the Federation of Israeli Chambers of Commerce would in 1993 issue a call for the country to overcome conflict in order so that “it could become the strategic, logistic and marketing centre of the whole region like a Middle Eastern Singapore”. Yet far from the ‘peace of markets’ promised at Oslo, the transformation of the Israeli economy into “the most tech-dependent in the world”and the transition away from the export of traditional goods to security industry products supporting international counterterrorism efforts arguably cancelled out an economic peace incentive.

The above coupled with the Israeli policy from March 1993 onwards of closing its borders with the occupied territories created a radically unbalanced picture. As Klein notes, this policy caused the GNP in the territories to drop by some 30%, while some 66% of the Palestinian workforce was unemployed or ‘severely underemployed’. Palestinian labourers attempting to cross the border via one of the many checkpoints that separated the occupied territories not only from ‘Green-Line Israel’ but also from other parts of the West Bank now begun to face a new challenge from the security industry. As noted by the Israeli NGO ‘Who Profits from the Occupation’ in their report “The Israeli Occupation industry” (2016), the process of privatisation of Israel’s security apparatus had begun. As ‘Who Profits’ further points out, this move followed from decision 43/b adopted by the Israeli Ministers’ Committee of National Security in December 2005. The report establishes that in part, “the border checkpoints reform, or the privatisation process was meant to change the management method of the checkpoints through the following measures: transferring the de-facto management and operation of the checkpoints to private security companies”. This followed the logic of the ‘information and research centre’ of the Knesset; “to reduce the friction that exists today in crossings and to improve the level of service without hindering the level of security checks.” Miriam Berger, writing recently for the news agency ‘Newsweek’ notes one of the more alarming facts drawn from the ‘Who Profits’ report. Thanks in part to over 30 checkpoints that have been fully or partially privatised since the mid-2000s, government contracts given to private security companies now total some $200 million. As critics, such as the Israeli researcher Lior Volinz point out, this is simply “trying to make an unsustainable situation better” in so far as it ‘cements’ the occupation. As Shira Havkin writes in her report “Privatisation of Israeli Checkpoints in the West Bank and in the Gaza Strip” (״הפרטת המחסומים בגדה המערבית וברצועת עזה״), this move may not be cheaper than using conscripted soldiers, but it can be seen as an investment in expertise being funneled into Israel’s security industry, all the while boosting ‘job creation’.

In his work, ‘Shadow or Shade? The Roles of International Law in Palestinian-Israel Peace Talks’, Omar Dajani notes differing models guiding the behaviour of governments in relation to international legal norms and participation in international regimes. For example, a ‘rational-actor’ model pertains that governments may meet international norms in a self-interested way, having determined that alternative paths may be more costly in the long run. Realists however assert that “law is effective only to justify decisions that would have been taken for other reasons.” Hence, states may cooperate with international organisations as a means of achieving long-term goals, particularly those that rely on international support. Some liberal theorists, Dajani notes, view a big motivating factor in a government’s ‘compliance’ as being “pressure from their domestic constituencies”. Thus, individuals and institutions ‘internalising’ certain norms and rules forms the basis of expectation for a state’s behaviour. In this vein, it can be argued that an economy in which the phenomena of civilians working in areas previously considered the exclusive domain of the state’s armed forces becomes normalised lowers the bar vis-a-vis expectations of the state to end the current stalemate and seek peace. Additionally, we can not underestimate the degree to which the amount of international and domestic state investment needed to facilitate cohesion between Israelis and Palestinians, be it in the context of a single binational state or two-states, flies in the face of established neo-liberal economic thought.

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