Chapter

PathoLAWgical Occupation: Normalizing the Exceptional Case of the Occupied Palestinian Territory and Other Legal Pathologies

Orna Ben-Naftali

in International Humanitarian Law and International Human Rights Law

Published in print January 2011 | ISBN: 9780191001604
Published online September 2011 | e-ISBN: 9780191729447 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780191001604.003.0005

Series: Collected Courses of the Academy of European Law

PathoLAWgical Occupation: Normalizing the Exceptional Case of the Occupied Palestinian Territory and Other Legal Pathologies

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This chapter focuses on the legal discourse of the most legalized occupation in world history — Israeli control of the Occupied Palestinian Territory (OPT) — to posit that more laws may not only fail to generate more justice, but may actually facilitate, sustain, and legitimize this failure. The argument rests on two interrelated propositions: first, that the Israeli control of the OPT is an illegal occupation, the defining feature of which is the blurring of boundaries, both physical and legal, which has culminated in the reversal of the relationship between the rule and the exception. The second proposition focuses on the normative implications of this regime. It suggests that once law is implicated in the shaping of such a regime, law itself becomes infected, and is likely to operate in a manner that will defy its normative purpose on both an individual and a systemic level: its application to individual cases (through judicial review) would typically entail a ‘dynamic’ interpretation designed to advance the interests of the occupying power at the expense of the occupied people and it will contribute to and facilitate the formation of an environment (indicative of a systemic state policy) of tolerance towards systematic violations of human rights. This tolerance, in turn, may transform grave such violations from war crimes into crimes against humanity. This ‘pathoLAWgy’ provides the proper context for understanding both the manner with which the most recent military operation in Gaza (‘Operation Cast Lead’, 27 December 2008–18 January 2009) was exercised and the consequential Report of the Goldstone Committee.

Keywords: international humanitarian law; international human rights law; Israel; Occupied Palestinian Territory; illegal occupation; war crimes

Chapter.  42668 words. 

Subjects: Human Rights and Immigration

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