by Dore Gold
In January 2012, Israeli prime minister Benjamin Netanyahu and Yaakov Neeman, the justice minister, turned to former Israeli supreme court justice Edmond Levy to head a panel of legal experts that would look into questions of land ownership in the West Bank. The initiative came about when it was discovered that a housing project in the settlement of Beit El, north of Jerusalem, had been built years earlier on Palestinian private land, and the government decided to adhere to the judgment of the Supreme Court to have the Israeli building project removed. The panel was intended to study how Israeli decision-making had been made in the past and what could be done to avoid such situations in the future.
Yet, looking back over the last two weeks, what appeared to hit a raw nerve with the critics of the report, that was just released in July by Levy's committee, was not what it had to say about the issues, for which the committee was appointed, but rather with how it dealt with the broader narrative for describing the Israeli-Palestinian conflict. This became evident in how the reaction focused on the report's conclusion that "the classical laws of 'occupation' as set out in the relevant international conventions cannot be considered applicable to…Israel's presence in Judea and Samaria" (the West Bank). It was this sentence that was paraphrased and plastered on the headlines of Israeli newspapers and became a subject of debate in the international media as well.
How did Levy's panel reach this conclusion along with his two colleagues, Tehiya Shapira, the former deputy president of the Tel Aviv District Court, and Alan Baker, the former legal advisor of the Israeli foreign ministry in the 1990s? It was Baker who brought in a unique expertise having been one of the main drafters of many of the Oslo Accords with the Palestinians. The panel argued that the Israeli presence in the West Bank was sui generis, because there was no previously recognized sovereignty there when it was captured by the IDF in 1967. The Jordanian declaration of sovereignty in 1950 had been rejected by the Arab states and the international community as a whole, except for Britain and Pakistan.
Moreover, as the Levy Report points out, the Jewish people still had residual historical and legal rights in the West Bank emanating from the British Mandate that were never cancelled, but rather were preserved by the U.N. Charter, under Article 80—the famous “Palestine Clause” that was drafted, in part, to guarantee continuity with respect to Jewish rights won at the League of Nations.
Finally, with the advent of the Oslo Agreements in the 1990s, there was no longer an Israeli military government over the Palestinian population. Indeed, the famous 1949 Fourth Geneva Convention on occupied territories stipulates that an occupying power is bound to its terms “to the extent that such a Power exercises the function of government in such territory (Article 6).”
Yet the establishment of the Palestinian Authority in 1994 made the situation complex. For as a result, some functions of government were retained by the IDF, others were exercised by the Palestinians, and there were also shared powers. In other words, the situation on the ground in the West Bank was not black and white, which allowed moral judgments to be easily made about a continuing Israeli occupation. The Palestinians did not have an independent state, but they could not be considered to be under "occupation" when at the same time they were being ruled first by Yasser Arafat and then by his successor, Mahmoud Abbas.
The idea that the West Bank could not be simply characterized as "occupied" comported with traditional Israeli legal opinions. For instance, Israel's former ambassador to the U.N., Chaim Herzog (who would later become Israel's president), appeared in the General Assembly on October 26, 1977, and laid out Israel's legal status in the territories with respect to the Fourth Geneva Convention on occupied territories. He stated: "In other words, Israel cannot be considered an 'occupying Power' within the meaning of the Convention in any part of the former Palestine Mandate, including Judea and Samaria."
This view was reinforced again a quarter of a century later. In May 2003, after the IDF conducted Operation Defensive Shield in order to put an end to a two-year wave of Palestinian suicide bombing attacks, Prime Minister Ariel Sharon astonished his supporters by saying that the IDF could not continue to be deployed throughout West Bank cities because that would mean keeping the Palestinians "under occupation." However, Attorney General Elyakim Rubenstein, responded that it was not correct to call the West Bank and the Gaza Strip "occupied territories" but rather "disputed territories." A statement published by the justice ministry added that "their status will be decided by future agreements."
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It is instructive to see how the international community looks at far clearer cases of territories that came under military control of foreign forces as a result of armed conflict. On July 20, 1974, the Turkish army invaded Cyprus, which had been an independent state since 1960, taking over 37 percent of the island. The Turkish zone declared its independence in 1983, but no state, except Turkey, recognized the new government.
How does most of the international community refer to the territory of Northern Cyprus? The fact of the matter is that they don't label it an "occupation." When the EU accepted Cyprus as a new member state in 2004, it prepared a memorandum explaining that the accession to the EU was suspended "in the area of the Republic of Cyprus in which the Government of the Republic of Cyprus does not exercise effective control."
There is also the example of Western Sahara, which was completely taken over by the Moroccan army in 1979. After Spain withdrew from the territory and a joint administration with Mauritania failed to emerge, Morocco viewed Western Sahara as Moroccan territory. Morocco's claim was challenged by the Polisario, the militia manned by residents of the region that waged a guerilla war against the Moroccan army with the backing of Algeria. The International Court of Justice in the Hague formally rejected the Moroccan claim of sovereignty, recognizing the people of Western Sahara’s right to self-determination. In numerous resolutions in the U.N., Western Sahara has not been called "occupied territory," even though the Moroccan army has been sitting on land beyond the internationally recognized borders of Morocco.
At the end of World War II, the Soviet army invaded Japan and occupied the Kuril Islands, which had been previously Japanese territory. Here again, the Japanese foreign ministry's recent paper on the Kuril Islands doesn't even speak about ending the Russian occupation, but rather about the need to "reach a settlement of this unresolved issue of the Northern Territories."
All three cases of Northern Cyprus, Western Sahara, and the Kuril Islands are open and shut cases of foreign occupation under international law and yet in the diplomatic arena the term "occupation" is not formally applied to them. Ironically, in the case of the West Bank, where the Israeli presence is a far more complex legal issue, the term "occupation" has been uncritically applied, even by Israelis.
Thus the decision to use the term "occupation" appears to emanate as much from political considerations as it does from any legal analysis. For "occupation" is a term of opprobrium. In much of Europe, the term still invokes memories of the Nazi occupation of France. Those being constantly bombarded by the term "occupation" in Europe undoubtedly make subconscious links between Israeli behavior in the territories and the events of the Second World War. Indeed, that is the intention, in many cases, of those using and promoting this language, despite the fact that such analogies are repulsive to anyone with the least bit of Jewish historical memory.
Nonetheless, pro-Palestinian groups, and their allies on the far left, use the charge of "occupation" as part of their rhetorical arsenal—along with other epithets, like "colonialist, apartheid state"—for waging political warfare against Israel. The charge of "occupation" has evolved into one of the most potent weapons in the delegitimization campaign against Israel.
It is noteworthy that the International Committee of the Red Cross (ICRC) in Geneva published a study on the subject of occupation in April 2012 that concluded that the term had unquestionably acquired a "pejorative connotation." Experts attending the meetings of the ICRC recommended replacing the term with new legal nomenclature, in order to get wider adherence to international humanitarian law by those who were occupying foreign territory but wanted to avoid the occupation label.
There are also well meaning Israelis who call for an "end to the occupation" in order to build internal political support for a full Israeli withdrawal from the West Bank, by appealing to the conscience of Israelis who do not want to think of themselves as occupiers nor to have the world community see them this way. But in making this call, its advocates strip Israel of the rights it acquired in U.N. Security Council 242 that did not require it to pull back to the pre-1967 lines, which have been regarded by most Israeli leaders from Rabin to Netanyahu as indefensible.
Levy's committee has restored Israel's legal narrative about its rights in the West Bank. There are those who charged that in rejecting the application of the term "occupation" to the Israeli presence in the West Bank, the Levy committee's report will set the stage for eventual Israeli annexation of the territories. Of course these concerns are baseless. The report of the Levy committee says absolutely nothing about what political solution for the future of the West Bank is desirable.
Nonetheless its conclusions are still important for one diplomatic scenario, in particular: a negotiated end of the Israeli-Palestinian conflict in the future. For at the end of the day, there is a huge difference in how a compromise will look if Israel's negotiating team comes to the peace table as "foreign occupiers," who took someone else's land, or if they come as a party that also has just territorial claims.
Moreover, as long as the international community constantly fuels the "occupation" narrative, the Palestinians’ propensity to consider making a real compromise, which is critical for any future agreement, will be close to nil. In fact, this false narrative only reinforces their mistaken belief in the delegitimization campaign against Israel as an alternative to seeking a negotiated settlement of the conflict.
In sum, the "occupation" label is built on flawed analysis and requires the application of transparent double standards by those who use it, by which they single out Israel for condemnation that it does not merit. Rather than creating a setting for diplomacy to succeed, it only makes a real Middle Eastern peace more remote than ever.
Dore Gold, Israel’s former ambassador to the United Nations, is president of the Jerusalem Center for Public Affairs.
Copyright - Original materials copyright (c) by the authors.
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