Sunday, July 15, 2012

Affirming the Jewish State’s Territorial Rights

by P. David Hornik

This week a three-person committee appointed in January by Israeli prime minister Binyamin Netanyahu started handing out its 89-page report on settlements and the legal status of Israel’s presence in the West Bank (Judea and Samaria). The committee was led by Edmund Levy, a retired Supreme Court justice, and also included Alan Baker, a former ambassador to Canada and legal adviser to the Foreign Ministry, and Tchia Shapira, a former deputy president of the Tel Aviv District Court.

The report’s (summarized here) conclusions on the most basic level are consistent with what any fair, informed consideration of the issue will indicate. First, Israel is not an occupier in the West Bank; second, what the 1949 Geneva Convention said about population transfers—in response to Nazi occupations in World War II—does not apply to Israel’s circumstances in the West Bank; and third, “according to international law, Israelis have the legal right to settle in Judea and Samaria and the establishment of settlements cannot, in and of itself, be considered illegal.”

The reasons are straightforward. In the Palestine Mandate of 1922, the League of Nations granted Jews the right to “close settlement” of the land between the Jordan and the Mediterranean—including, of course, the West Bank. While, according to the terms of the 1947 UN Partition Resolution, the Jewish leadership was willing to forgo its right to parts of the land where a Palestinian state was to be established, including the West Bank, the Palestinian and Arab side emphatically rejected the partition plan and instead launched a war to strangle the newborn state of Israel in its cradle.

When the dust cleared from that conflict, Judea and Samaria were in the hands of Jordan—which had conquered them as part of a violent aggression aimed at eradicating another state. Jordan’s rule there from 1949 to 1967 was never recognized by any world body, or by any individual countries other than Britain and Pakistan. In the 1967 Six-Day War—in which Egypt, Syria, and Jordan again tried to wipe out the Jewish state—Israel instead conquered the West Bank back from Jordan. In 1988 Jordan formally renounced all claim to the territory.

Simple logic, then, dictates that since 1967 the West Bank has belonged to Israel—unless it should voluntarily choose, similar to the Jewish leadership in 1947, to forgo part of its right to it. First, no international legal document has ever superseded the Palestine Mandate and its terms have never been abrogated. Second, Jordan was one of the aggressors in the 1967 conflict, and to say the attacked party is obligated to restore land to the attacking side—in other words, that aggression must be rewarded—mocks both common sense and morality.

Those points have, indeed, been asserted by international legal luminaries like Stephen M. Schwebel, who wrote in the aftermath of the war that:

As between Israel, acting defensively in 1948 and 1967, on the one hand, and her Arab neighbors, acting aggressively, in 1948 and 1967, on the other, Israel has the better title in the territory of what was Palestine, including the whole of Jerusalem.

Also affirming Israel’s rights was the late renowned legal scholar Eugene V. Rostow, who wrote that Israel’s right to settle the West Bank was “unassailable.” Experts taking similar views since 1967 have included Julius Stone, David Matas, David M. Phillips (hat tip to Ted Belman for the latter three links), and others.

None of this, of course, has stopped Israel’s alleged “occupation” and settlement of the West Bank from being one of the causes célèbres of international politics since 1967, with the UN and the EU—bodies very much under Arab and Muslim sway—ritually denouncing both as “illegal.” And while U.S. presidents except for Jimmy Carter have not viewed the settlements as illegal, they have been highly critical of them and insistent, to varying degrees, that Israel’s relinquishment of lands conquered in 1967 is a key to peace.

Indeed, the State Department lost no time reacting to the Levy Committee’s conclusions, with spokesman Patrick Ventrell saying:

“we’ve seen the reports that an Israeli government appointed panel has recommended legalizing dozens of Israeli settlements in the West Bank, but we do not accept the legitimacy of continued Israeli settlement activity and we oppose any effort to legalize settlement outposts.”

With Secretary of State Hillary Clinton on the way to Israel next week, many expect further unpleasantness. And the New York Times, for its part, went so far as to call the committee’s report a “potentially disastrous blow” that, among other things, could help Iran progress with its nuclear program by diverting attention to something—Israeli settlements—that the Times views as a comparable if not worse menace.

The Levy Committee’s conclusions are not binding, and Netanyahu is now “studying” them without having endorsed them. Still, this is a good occasion for all who consider themselves friends of Israel, with its best interests in mind—including those inclined to object harshly to the report’s conclusions—to take heed of a few points:

1. Some 342,000 Israeli Jews now live in the West Bank along with about 250,000 in eastern Jerusalem—also reconquered in 1967 and considered “occupied.” Those 600,000 or so people constitute about 10 percent of Israel’s Jewish population. Moreover, some of this community is under violent attack, from stones and Molotov cocktails to, in some cases, outright slaughter or attempted slaughter. Under such circumstances, publicly branding this community as “illegitimate”—as the Obama administration repeatedly does—appears irresponsible, unreasonable, and as possibly fanning the flames of aggression. It also projects the image of Israel as a rogue state and appears to confirm, and encourage, those whose enmity to the Jewish state is deep-seated and radical.

2. The Palestine Mandate’s recognition of Jewish rights to the land west of the Jordan River was not arbitrary, but based on a unique historical connection going back thousands of years. Indeed, the only time for thousands of years when Jews did not live in Judea and Samaria—the heartland of Israel—was during the nineteen-year Jordanian occupation when they were barred from doing so. To sacralize—in effect—that brief span of Jordanian rule by delegitimizing all subsequent Jewish life in Judea and Samaria is an extreme position unwarranted by logic, history, or morality.

3. There are times when a paradigm needs to be shifted. The paradigm of Israeli land concessions as the key to peace has not only been regnant for decades—but, by now, put to the test several times whether in unilateral form or under the terms of peace agreements. Results: the Israeli withdrawals from southern Lebanon, Gaza, and Sinai have created vacuums that were sooner or later filled by radical Islamist forces—not only harming and threatening Israel but damaging and imperiling Lebanon and Egypt as well and creating anti-Western hothouses. As for the partial Israeli troop withdrawal from the West Bank in the 1990s, it unleashed a savage terror war that took Israel from 2002 to 2005 to quell. Today, the Arabs of Judea and Samaria enjoy a high level of autonomy with Israel maintaining ultimate security control. It would be a reasonable paradigm shift to start regarding this situation as relatively stable and optimal—yes, even with Jews living in the territory as well.

P. David Hornik


Copyright - Original materials copyright (c) by the authors.

1 comment:

salubrius said...

Not just an affirmation, but "a vindication with a legacy still unwritten".

The same description was applied by the New York Times to Justice Robert's recent opinion on "Obamacare" labeling a penalty as a tax -- a not exceptional ruling that follows conventional Constitutional law in saving a legislative mandate from Constitutional infirmity if at all possible. In my opinion it is more fittingly applied to the legal opinion of Judge Levy. Will it end the charade of an invented "Palestinian Arab People" PRETENDING to renounce violence and PRETENDING to seek peace while its actual motivation is religious: to end the incursion of infidels on the "dar al Islam"? If so, that will be its legacy.

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