Just Occupation?

By Robert Barnett on 30 November 2005

As a Jew who has converted to Christianity and has sought to understand the ramifications a Christian worldview would bring to various world issues, Israel's occupation of the West Bank has engrossed my interest. While grounded in zealous Israeli apologetics during my days at Orthodox Jewish yeshiva, I have since come to yearn from a more balanced moral perspective to understand what is truly just.

Interestingly, I have come to realize that the Christian West's Just War Tradition (JWT) seems to offer little explicit doctrinal development in the area of military occupation, a lapse which has enticed me to carefully evaluate the intricacies at work here to sort matters out for myself.

Classically, JWT has covered two areas of concern: ad bellem considerations as to when it is licit to wage war and in bello concerns as to what are proper means to wage such a war.

In examining military occupation, I propose that it holds a rather fascinating perch within the tradition: that it naturally possesses it's own internal matrix of moral guidelines, one where it has its own ad bellem principles that are inextricably linked to JWT ad bellem, assumes a place within the array of JWT in bello issues, and features its own internal in bello quandaries.

In other words, I wish to suggest that military occupation is not automatically allowed or proscribed by JWT, that it has its own set of ad bellem considerations that would establish on a case-by-case basis whether the nature of any given occupation is just and hence an acceptable element of a war's in bello methods. In conjunction with that, if an occupation does past muster here, occupation then has an internal in bello life of its own that charts which occupation practices are allowed.

Adding even more flavor to the issue is the fact that military occupation qualifies as a form of civil rule as well as a military tactic and furnishes a bridge between Christianity's JWT and its classic conception of proper governing authority. Traditionally, the two areas of thought do hold some common ground. Augustine, generally credited as the founder of Christian JWT, cast the waging of war as an international extension of civil authority's right and duty to maintain public safety and punish wrongdoers. Yet, with military occupation, the scope of just civil rule particulars now must be enlarged to include the welfare of the people being occupied, not just the people whose government is administering the occupation.

So what are military occupation's ad bellem requirements, to determine whether any given occupation is a just undertaking? I would like to suggest three.

1. That the war that has led to the occupation is itself a just war satisfying JWT ad bellem standards of just cause, right intention, and proper authority.
2. That the occupation is committed to a basic regard for human life and property in accordance with JWT notions of discrimination and proportionality, as well as the Thomistic traditional understanding of civil administration being ordered for the common good of society. Military authorities' concern for the occupied understandably must be balanced with military strategic and security objectives, so occupation authorities cannot be expected to act as pure Jeffersonian democrats. But, certainly, basic regard for the civilian occupied people is called for.
3. That the occupier does not conceive of the occupation as a permanent state of affairs but is committed to eventually ending the occupation through withdrawal and/or fully annexing and absorbing occupied areas and furnishing the occupied with full civil rights and freedoms as newly minted citizens of the nation to which they've been annexed. While occupation is defensible as a transitory military practice, it poses thorny questions for those who seek to deeply embrace the Western tradition. It can be quite caustic by its very nature and, I submit, cannot qualify as a permanent form of just civil authority.

What, then, about Israel? I would contend that the Israeli occupation of the West Bank is fundamentally just based on this three-point understanding of when military occupation is acceptable.

Israel's occupation stems from its victory in the 1967 Six Day War. Israel fought this war in self defense after having been confronted with a shutdown of waterways to Israeli shipping, movements of Arab troops toward the Israeli border, and Arab government statements about the desire to destroy Israel. Under such circumstances, assuming that a Jewish state has a right to exist on some part of the land in dispute — a contentious question that is beyond the scope of this article — it's fair to say the West Bank occupation stems from a morally sound war.

Next, notwithstanding lapses, the Israeli occupation has largely observed basic respect for life and property. Israeli forces have not been engaged in wholesale, indiscriminate killing, enforced slavery, or systemic destruction of Arabs’ private possessions and property.

Lastly, Israel must be committed to ending the occupation through good-faith efforts to forge a final settlement with the Palestinians. Israel's record on this third leg of the triad of occupation legitimacy is shaky, given some of the triumphalism exhibited by former prime ministers such as Menachem Begin, a legacy that still continues to this day within the extreme right-wing segments of Israeli Jewish political culture.

Nonetheless, Israel still earns passing marks here. Israel has withdrawn from occupied land in the Sinai in the early 1980s and recently withdrew from the Gaza Strip. Israel can also point to its treatment of annexed East Jerusalem's Arabs who enjoy permanent residency status and are not subject to the rigors of military occupational rule. Israel has also offered every indication that it does not envision the West Bank occupation to be permanent, though there may be valid questions as to what kind of disengagement plans do or don't qualify as a reasonable and just resolution of the final status of West Bank territory.

Nevertheless, with the above military occupation considerations met, Israeli forces are engaged in a morally defensible occupation. When Palestinian spokesmen make pronouncements about this occupation being ‘illegal’ or ‘immoral’, I don’t think a full JTW analysis backs up such claims.

This is not to suggest, of course, that a defensible occupation means all occupation practices are defensible. In seeking to secure peace, an occupation has to be seen as having a right to take tough, undemocratic measures to run the area under its control. But, in accordance with JWT hallmarks of discrimination on behalf of non-combatants and proportionality, an occupation regime doesn't have unlimited license.

This brings us to the heart of military occupation in bello considerations. A Christian JWT perspective on occupation practices calls upon the occupier to handle a delicate balancing act. On the one hand "mercy is due to the vanquished or the captive", as Augustine wrote in Letter 189 to Boniface. Clearly this is meant for occupiers' ears. Yet, Augustine added, "especially in this case in which future troubling of the peace is not to be feared." Clearly, a troubling of the peace can be a legitimate concern for the occupier — as events during the spring of 2004 in Iraq taught American forces.

What practices has Israel employed that are morally acceptable in the context of a just military occupation?

At times, Israel has imposed checkpoints, curfews, and house searches over parts of the West Bank. I don't think a case can be made that these practices, as a general matter of principle, run afoul of proper JWT proportionality. While checkpoint and house-search abuses have been reported and certainly are unacceptable, proper use of these practices is legitimate.

Also, undertaking combat operations that seek to root out resistance, combatant, or terrorist forces, including the targeted killing of their leaders, is morally acceptable and complies with JWT demands of discrimination. These undertakings are a logical extension of the initial conflict that gave rise to the occupation.

Left-wing critics who condemn assassinations as a lack of due process seem to hold a rather myopic view. The targets in question are not domestic criminal suspects but enemy combatants who, like soldiers on a battlefield, are not entitled to Miranda warnings, trials, and ACLU press conferences.

Another practice that clearly conforms, in principle at least, to proportionality would be the Israeli army's right to temporarily expropriate any property — public or private — that is necessary for the administering of the occupation or the safety of occupation troops. The army would have the corresponding responsibility to return all property when the need for it has expired or the occupation comes to an end.

In addition, Israeli occupation forces have destroyed the homes of those who have engaged in terrorist and paramilitary activities, sometimes dislocating innocent relatives who share the same dwelling. This practice is controversial, but it too can potentially be morally defensible according to JWT in the context of a military occupation. Occupation forces have a right to take far-reaching measures in response to violent outbreaks, more so than is available to the police authorities of a democracy.

In some discussions I’ve had with self-described ‘peace activists’, the objection has been raised that this is an unconscionable practice, that U.S. authorities would never have destroyed the home of Timothy McVeigh's sister, if the Oklahoma City bomber had been living with her.

The problem with this reasoning is that McVeigh was apprehended and tried as a domestic criminal in a democratic society. Therefore, as a hallmark of democratic jurisprudence, punishment had to be restricted to McVeigh and his own personal property.

In a military occupation, military forces can be regarded as having more sanctioned leeway available to them, a response that can include immediate destruction of any property, tools, or infrastructure that opposing gunmen or bombers have made use of, not merely that which they own. While this practice has caused hardship for those living under the same roof, in accordance with the classical Christian concept of double effect, such "injustice" is acceptable so long as proper intent and proportionality have been observed.

Beyond the issue of destroyed homes that were implicated in security violations, demolitions are defensible if a dwelling is erected without authorization from occupation authorities. But if demolition decision-making is guided by motives other than security, such as seeking to demographically manipulate Palestinians into or out of certain areas, such thinking must be condemned as an abuse of governing authority.

In all of these areas, I think Israeli policy can be upheld as defensible under JTW as long as they are carried out appropriately. However, there are some areas where the occupation critics are on firm ground.

Reports of Israeli use of human shields and what I call ‘forcible neighbor approachments’ are areas of deep concern. Human shield situations are those where the military has picked out a civilian to stand in front of soldiers so that soldiers can shoot above and around the 'shield' while blocking the opposing gunmen's opportunity to target the soldiers. Forcible neighbor approachments are where the soldiers have forced a civilian to approach a home that has suspected combatants so the civilian can persuade them to give themselves up instead of the soldiers having to confront them.

My understanding is that the Israeli military denies the use of human shields while it acknowledges some use of neighbor approachments. However, from a JWT perspective, any blurring of combatants and non-combatants must be seen as a serious breach of proper discrimination. As a result, both human shields and forcible neighbor approachments are devoid of moral acceptability, both in principle and in practice.

Another problematic practice is establishing civilian Jewish settlements in the West Bank. Such settlements can be acceptable but only if they meet basic moral requirements:

• The land must be legitimately obtained.
• Settlers must live under military occupation rule and not receive preferential treatment compared to Palestinians.
• Settlers are prepared to live under Arab rule if their communities wind up on the other side of the border in a final peace agreement.

Such guidelines clearly conform to traditional Christian hallmarks of just acquisition of property and uniform treatment of all under a particular regime of authority.

Unfortunately, most settlements are morally disqualified on the basis of the first requirement alone because they have obtained their land from military expropriations from the public domain. Such land is public land that should be intended for the collective benefit of all people in the territory. Land should never be disbursed from the public domain into private hands without democratic deliberation among all residents of the jurisdiction. A military occupation has no right to use its undemocratic powers outside of the security realm to transfer public lands into private hands.

Due to matters of proper authority within JWT thinking, a military occupation, which by definition is devoid of democratic due process, has no right to permanently tamper with the public domain but must leave it intact pending an end to the occupation. Contravening this dictum, along with the fact that the settlements fall under Israeli civilian law while the surrounding Arab areas are under military administration, the settlement program adds up to an indefensibly unethical policy of the Israeli occupation.

In fairness to Israeli critics, morally unacceptable occupation practices need to be opposed by all, including Israel's supporters. Within the acceptable practices, there are episodes of abuse to be opposed as well. Also, endowing certain occupation practices as “acceptable” under JWT doesn’t mean people have to enthusiastically support them. Those who seek reconciliation between the parties and those who champion the cause of Palestinian nationalism have the right to oppose all defensible practices and the Israeli occupation in general on prudential, discretionary grounds, if they believe opposition to these conditions can bring about true peace.

However, under JWT nobody has the right to depict defensible practices as inherently immoral. Again, assuming the Jewish state has a right to exist, the full-scale vilification of Israel's occupation as Nazi-like from all too many Western activists and academics is seriously flawed.

Temporary occupation clearly has a place within the parameters of Christian JWT thinking. Like any important topic, it requires careful discernment of the mind and justly motivated intentions of the heart. Equipped with these guidelines, we can discern how well a military occupation conforms to the Christian values that we call the world to.

Last updated 12 January 2009