Following the 1967 War, Israel argued that a sovereign void in the West Bank and the Gaza Strip meant that they are neither occupied nor not occupied; they are sui generis, a legal concept describing unique distinction in law. As such, Israel claimed, the West Bank and the Gaza Strip are subject to military control but not to strict adherence of the international legal regime that governs military occupation. Israel as the military power would retain the latitude to determine which laws in the body of Occupation Law should apply. It has used this latitude to steadily take Palestinian lands without the Palestinian people. Doing so has enabled it to both avoid censure for outright territorial conquest, and more importantly perhaps, to avoid disrupting its Jewish demographic majority.
Between June and November 1967, Israel also worked fastidiously within the United Nations to avoid drafting a Security Council Resolution legally mandating its withdrawal from Arab territories occupied in the course of the war. It preferred no resolution at all, but would accept as a sub-optimal outcome the adoption of final language that would be vague enough to allow for strategic legal and political maneuver to enable it to retain as much of the territories as possible.
Israel’s attempts to evade legal regulation of its occupation were not unique. Nearly every occupying power has attempted to avoid such regulation, but only the most powerful states have been successful. Israel’s success is attributed to US intervention. Since 1967, the United States has used its political, economic, and military prowess to systematically shield Israel from international legal accountability and to help normalize its legal arguments as part of a tenable political framework. Together, these pieces constitute a legal and political mechanism of exception that has enabled Israel to incrementally annex Palestinian lands without serious political or legal consequence. The international system has so deeply internalized this mechanism that it poses as great a risk to Palestinian freedom as Israel’s blatant colonial violence.
In February 2017, Israel passed the Regularization Law retroactively authorizing the expropriation of Palestinian private lands by Jewish Israeli civilian settlers. It was met with robust liberal Israeli and international condemnation. In the same two-week period of its passage, Israel also announced that it would build approximately six thousand new settler housing units in the West Bank, including East Jerusalem. There was not a peep of protest among Israelis or the international community, despite the fact that the new settler units exceed the housing units to be retroactively authorized by the Regularization Law by thirty-percent. The disparate responses to the Law and the announcement of the new settler units is even more curious within a broader context in the Occupied Territories where the facts on the ground indicate the death of the two-state solution. The explanation to this is that whereas the Regularization Law broke with Israel’s internal logic and threatened to unravel its mechanism of exception, the announcement of new settlements under the existing framework fits squarely within it.
The global backlash against the Regularization Law and concurrent normalization of the status quo indicates the enduring utility of this fifty-year-old legal and political framework. Worse, it indicates that the international community is willing to deliver the same outcome of settler-colonial entrenchment under the semblance of peacemaking.
