March 19, 2013

It’s a sure sign of nervousness when people start using the vocabulary of absolute certainty — when they refuse to allow for even the possibility of debate.

That’s precisely what Hussein Ibish did in his response in Daily Beast/Open Zion to my column last week where I suggested that Israel’s presence on the West Bank ought to be characterized as “disputed” rather than “illegal”— he refused to give an inch, or even a millimeter.

His headline captured his certainty, if not his smugness: “Of Course the Settlements are Illegal.” His point of view was not even a point of view; it was, he declared, a “political and legal fact.” Anything else is an “entirely fictive alternate reality” where people who disagree with him “neurotically retreat.”

[Related: Love ‘em or hate ‘em, Settlements are not illegal]

I don’t blame Mr. Ibish for his anxiety. For years now, Ibish and other critics of Israel’s occupation have had the field pretty much to themselves. It has become one of the world’s hard-rock truisms that Israel’s occupation is “illegal,” repeated reflexively throughout the world’s media and spawning the Boycott, Divestment and Sanctions (BDS) campaign to isolate and delegitimize the Jewish state.

So, you can understand if these critics were somewhat flummoxed last July when a respected juror, former Israeli Supreme Court Justice Edmond Levy, led a commission that concluded that “Israeli settlements are legal under international law.”

I quoted that report in my article, and, interestingly, Mr. Ibish never refers to it in his rebuttal. Apparently, Ibish is so sure that this is a black and white issue that he won’t even waste his time studying a report that introduces plenty of gray.

Is the issue of the settlements’ legal status really so settled? How can we assess whether it’s even worthy of debate?

Well, keep reading and decide for yourself.

Let’s start with the Levy report, which Mr. Ibish chose to ignore. I will elaborate on why I consider its conclusions to be eminently fair and reasonable.

The report concludes that the laws of belligerent occupation do not apply de jure to Israel’s presence in the West Bank.  Is that reasonable?

As Avi Bell, professor at the University of San Diego School of Law, notes: “One of the sine quibus non of belligerent occupation, as reaffirmed recently in an expert conference organized by the International Committee of the Red Cross, is that the occupation take place on foreign territory,” adding that “considerable state practice supports the traditional view that captured territory is ‘foreign’ only when another state has sovereignty.”

Bell asserts that the Levy commission “is on solid ground in observing that neither Jordan nor any other foreign state had territorial sovereignty over the West Bank in 1967 and that the territory cannot therefore be ‘foreign’ for purposes of the law of belligerent occupation.”

In fact, as we shall see, one could persuasively argue that Israel itself was already the lawful sovereign over the West Bank in 1967.

Ibish probably knows all that, which is why he chose to ignore the binding League of Nations agreements which laid down the Jewish legal right to settle anywhere in western Palestine, the area between the Jordan River and the Mediterranean Sea, an entitlement unaltered in international law.

This “Mandate for Palestine” was fully embraced by the international community. Fifty-one member countries — the entire League of Nations — unanimously declared on July 24, 1922:

“Whereas recognition has been given to the historical connection of the Jewish people with Palestine and to the grounds for reconstituting their national home in that country.”

As Eli Hertz and other experts have pointed out, political rights to self-determination as a polity for Arabs were guaranteed by the same League of Nations in four other mandates — in Lebanon and Syria [The French Mandate], Iraq, and later Trans-Jordan [The British Mandate].

You might be shocked to know that an Arab entity called Palestine never existed; the term Palestine referred only to the Jews.

Moreover, the Arabs never established a Palestinian state when the UN in 1947 recommended to partition Palestine, and to establish “an Arab and a Jewish state” (not a Palestinian state, it should be noted).

Nor did the Arabs recognize or establish a Palestinian state during the two decades prior to the Six-Day War when the West Bank was under Jordanian control and the Gaza Strip was under Egyptian control; nor did the Palestinian Arabs clamor for autonomy or independence during those years under Jordanian and Egyptian rule.

It’s a fact, not an opinion, that the Arab Palestinian movement came of age only after the Arabs lost the Six Day War and the hated Zionists took over the West Bank.

And yet, Ibish has the chutzpah to refer to the disputed territory as “their [the Palestinians’] land.” Who’s living in an alternate universe?

But let’s go deeper. Ibish’s main argument for calling Israel an illegal occupier is what he calls a “mountain” of United Nations Security Council (UNSC) resolutions. He begins with the big one: UNSC Resolution 242, which was adopted unanimously by the UN Security Council in the aftermath of the 1967 Six-Day War.

The resolution calls for a solution to the Arab-Israeli conflict based in principle on states having the right to “just and lasting peace” within “secure and recognized boundaries.”

But what Ibish fails to tell you is that Resolutions 242 and 338 never branded Israel as an “unlawful occupier” or an “aggressor.”

The fact is, the resolution never called on Israel to withdraw from all the “territories,” while the wording of the resolutions themselves clearly reflect Israel’s contention that none of the territories were occupied land taken by force in an unjust war.

In contrast, the revisionist International Court of Justice, which critics like Ibish like to quote, repeatedly talks of the “… illegality of [Israel’s] territorial acquisition,” misleading readers by ignoring Arab aggression and concealing “the provisions of the Charter concerning cases in which the use of force is lawful,” as was the case of the 1967 Six-Day War.

In fact, if you study the minutes of the six month ‘debate’ over the wording of Resolution 242, you’ll see that draft resolution proposals that speak of “occupied territories,” “aggression” and called on Israel to “withdraw immediately all its forces to the positions they held prior to 5 June 1967,” were all defeated.

As is well documented, one can easily trace the General Assembly’s attempts to change the status of the Territories, doctoring the definition of their status from “territories” to “Occupied Territories” to “Arab territories” to “occupied Palestinian territories” to “Occupied Palestinian Territory” and finally to “occupied Palestinian territory, including Jerusalem.”

All of the above has been documented in detail by legal expert Eli Hertz. Ibish doesn't get into all those details, and who can blame him? They would severely undermine his “black and white” case.

As if all that weren’t enough to show that this is hardly a slam dunk case, Professor Bell notes an additional reason for questioning the de jure application of the laws of belligerent occupation to the West Bank: Israel’s peace agreement with Jordan.

He quotes expert Yoram Dinstein on this point: “The rules of belligerent occupation cannot be applied to Israel’s presence in the West Bank in light of the combined effect of … the Jordanian-Israeli Treaty of Peace of 1994 and the series of agreements with the Palestinians.  There is simply no room for belligerent occupation in the absence of belligerence, namely, war.”

On the issue of settlements, Bell continues, “the Levy report likewise adduces several strong arguments to the effect that even if the laws of belligerent occupation applied to Israel’s presence in the West Bank, the Fourth Geneva Convention poses no bar to the kinds of actions that are subsumed under the term ‘settlement activities.’”

Again, Ibish chooses to ignore the crucial fact that while The Fourth Geneva Convention forbids “transfers” and “deportations” by the occupying state of parts of its population into occupied territory, it does not forbid “settlements.” As Bell explains, officials of the state of Israel have provided services to settlers and sometimes encouraged them, but the state of Israel has not transferred any Israeli to the West Bank against his or her will.

In fact, as even anti-settlement activists like Talia Sasson acknowledge, “there was never a considered, ordered decision by the state of Israel, by any Israeli government” on settlements.

“There is no precedent,” Bell writes, “for any other state being adjudged to have violated the Fourth Geneva Convention simply on the basis of permitting or facilitating private preferences in the way Israel has done.”

In a worst case scenario, even if facilitating private Jewish residential preferences in the West Bank were otherwise suspect “transfers,” the Levy report notes that sui generis rules apply to the area:  “Article 6 of the Mandate of Palestine demands ‘encourage[ment], in cooperation with the Jewish Agency … [of] close settlement by Jews on the land, including State lands …’”

Bell quotes the late Yale professor and international law expert Eugene Rostow as asserting that “this command is preserved by article 80 of the UN Charter, and, if the West Bank is under belligerent occupation, by article 43 of the Hague Regulations.”

I could go on, but you get the picture: The deeper you investigate the accusation that Israel is an “illegal occupier,” the more you realize that this is hardly an open and shut case.

Ibish calls me “reliably hawkish,” but if he’s any less ideological, why did he so easily dismiss evidence that contradicted his case—going as far as not even mentioning the Levy report which I quoted?

Here’s what I think. Since the Levy report came out, Ibish and other critics of Israel’s occupation have been getting nervous. Their views have been unchallenged by the mainstream media for so long that they can’t fathom, let alone handle, any serious pushback. That’s why you see smug language like “Of course, the settlements are illegal,” and juvenile accusations that anyone who disagrees with them is “neurotically” retreating into an alternate universe.

What would happen if this “alternative” view ever gained traction? Well, for one thing, the global movement to make Israel the most hated nation on the planet would definitely stall.

Deprived of their cherished “illegal Israeli occupation” lightning rod, what would the Israel haters do then? Would they be forced to finally confront the unpublicized and miserable conditions of Palestinians living in Lebanon and Jordan, who are much worse off than Palestinians living in the West Bank?

Would they be forced to admit that the Arabs with the most human rights, the most freedom and the most economic opportunities in the Middle East live in that hated Zionist state, Israel?

Would they also have to admit that Israel has offered to end the occupation three times, and that the Palestinians refused each time?

What would happen if the mainstream media ever got hold of the narrative that the Israel occupation may not be so illegal after all?

As shocking as it may sound, one can make a case that it might benefit the peace process. How so? Because Israel can’t credibly negotiate “land for peace” if it is seen as having no rights to the land in the first place.

As I wrote in my original column, one of the reasons negotiations with the Palestinians have gone nowhere is that, since Palestinians believe the land is already theirs, they have no incentive to negotiate, let alone compromise.

Until they realize that Israel does, in fact, have rights to the land, why should they compromise? What is there to negotiate?

Of course, don’t bet on any of these “alternate” views gaining traction any time soon. Ibish and his ilk know that there’s a better chance of convincing the world media that Ahmadinejad is a peacenik than convincing them that the Israeli occupation is not illegal. Truisms against Israel die hard.

But cynicism is no excuse. The “disputed, not illegal” position is a fair and reasonable one.

This debate has nothing to do, it must be noted, with whether one thinks the occupation is a good or moral idea or even in Israel’s interest. Those issues have dominated the dialogue up until now.

The debate ignited by the Levy report is about legal rights. This is an important debate that is long overdue. If Israel can credibly assert its rights, this could have positive implications for the peace process and put the ills of the Middle East in a fresh perspective.

The pervasive propaganda that for decades has made Israel the Middle East’s favorite scapegoat — because of its “illegal occupation”— has only hurt the people of the Middle East.

No matter what people like Ibish tell you, this should be the beginning of a great debate, not the end of one.

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David Suissa is president of TRIBE Media Corp./Jewish Journal and can be reached at davids@jewishjournal.com.