Peace with Realism

Promoting Peace in the Middle East

 

The Settlements Are Illegal

 

by Carlos

 

In this article I would like to examine the arguments for the legality of the Israeli settlements in the Palestinian territories and the Israeli occupation of those territories. I am admittedly no legal expert, but will consider those arguments simply from a logical perspective.

It should be noted at the outset that refuting the argument for Israeli possession of the West Bank does not validate any similar Palestinian counterclaim. Just as some Jewish factions would claim the West Bank for Israel, some Palestinian factions would claim Israel for the Palestinians. Those who have violently attacked civilians inside Israel have made it very clear that when they speak of “ending the occupation” what they really mean is ending Israel and making all the territory of the former Palestine Mandate a single Arab state. Maximalism on both sides is largely responsible for prolonging this conflict.

The Israeli-Palestinian conflict can be seen as a fight between competing ideologies fueled by religion: a Jewish desire to reclaim all of historic Israel including “Judea and Samaria” vs. a Muslim insistence on retaining all lands conquered by Islam and allowing no sovereignty therein to nonbelievers, especially Jews, who had been enemies of the Prophet and must always remain subordinate. It is very possible, although we may never know for sure, that without these dueling religious and historical motivations the necessary compromises for peace might already have been made. The fact is that both Jews and Arabs live in this “disputed” land in substantial numbers, both have a right to be there, and each group should be entitled to govern itself and determine its way of life. This should be self-evident, yet most discussions of this conflict are so polarized and partisan that they seem to demand that the listener take one side against the other, as if only one side had rights.

A note on terminology: “Judea” and “Samaria” are names that since biblical times have designated the area now called the West Bank. “Judea” derives from Judah, the name of both the tribe and of the southern half of the original Kingdom of Israel. The latter was called the Kingdom of Judah because most of its inhabitants came from that tribe. The northern half, still known as the Kingdom of Israel, had its capital at Shomron, known also as Samaria. These names survived as geographical designations but have been co-opted by the Israeli right to assert a continuing historical and religious claim on those territories for the Jewish people. In political speech, the use of those terms carries the implication that the lands they designate rightfully belong to the modern State of Israel. Thus we have the term “Yesha Council,” referring to the council of Jewish settlements in the West Bank. “Yesha” is a Hebrew acronym standing for Yehuda ve-Shomron, “Judea and Samaria.” It is the term used by the pro-settlements faction to refer to the area beyond the Green Line on which Jewish settlements now stand. It carries the intentionality of claiming that area for Israel.

To understand why the term “Judea and Samaria” is not as innocent as it sounds, it is helpful to hear it through Palestinian ears. Inhabitants of the West Bank, who are living under occupation, hearing the land on which they live designated by a name expressing a claim on that land by the occupying power, will draw the obvious conclusion about that power’s intentions. As a thought experiment, imagine a scenario in which Palestinians had the power to set up numerous autonomous population centers within Israel, form a council of those settlements, and call it the “Palestine Council.” How would such a thing be received by most Israelis?

The legal argument for the legitimacy of the occupation and the settlements rests in large part on a set of historic documents:

In addition, the pro-occupation position makes these two assertions:

Let us briefly summarize each.

The Balfour Declaration

Arthur James Balfour, formerly British Prime Minister, was British Foreign Secretary during World War I. With the support of his government, whose members harbored hopes that American Jews might influence the American government to enter the war, he wrote a letter to Lord Walter Rothschild, head of the British Zionist Federation, expressing British support for a Jewish homeland in Palestine. The date was November 2, 1917.

The letter was short and to the point. It stated:

His Majesty’s Government view with favour the establishment in Palestine of a national home for the Jewish people, and will use their best endeavours to facilitate the achievement of this object, it being clearly understood that nothing shall be done which may prejudice the civil and religious rights of existing non-Jewish communities in Palestine, or the rights and political status enjoyed by Jews in any other country.[1]

The San Remo Resolution

In April 1920 the Principal Allied Powers of World War I (Britain, France, Italy, and Japan, with the United States present as an observer) convened a conference in San Remo, Italy to determine the fate of lands that had belonged to the now defunct Ottoman Empire. In accordance with Article 22 of the League of Nations Covenant, which established the mandatory system, Ottoman lands were divided into three mandates: Syria, Iraq, and Palestine. The first was given to France, the other two to Britain.

The San Remo Resolution incorporated the language of the Balfour Declaration and is considered by some who justify Jewish title to the entire Palestine Mandate as having greater force.

The High Contracting Parties agree to entrust, by application of the provisions of Article 22, the administration of Palestine, within such boundaries as may be determined by the Principal Allied Powers, to a Mandatory, to be selected by the said Powers. The Mandatory will be responsible for putting into effect the declaration originally made on November 8, 1917, by the British Government, and adopted by the other Allied Powers, in favour of the establishment in Palestine of a national home for the Jewish people, it being clearly understood that nothing shall be done which may prejudice the civil and religious rights of existing non-Jewish communities in Palestine, or the rights and political status enjoyed by Jews in any other country.[2]

The Palestine Mandate

This is the key document upon which claims of Jewish title to the entire territory of the mandate are based. Its foundation is the San Remo Resolution and Article 22 of the League of Nations Covenant. It affirmed the assignment of the mandate to Britain, and restated the promise of the Balfour Declaration. As a legal instrument, it is considered to have the force of international law.

Whereas the Principal Allied Powers have also agreed that the Mandatory should be responsible for putting into effect the declaration originally made on November 2nd, 1917, by the Government of His Britannic Majesty, and adopted by the said Powers, in favor of the establishment in Palestine of a national home for the Jewish people, it being clearly understood that nothing should be done which might prejudice the civil and religious rights of existing non-Jewish communities in Palestine, or the rights and political status enjoyed by Jews in any other country… (Preamble)

 

The Mandatory shall be responsible for placing the country under such political, administrative and economic conditions as will secure the establishment of the Jewish national home, as laid down in the preamble, and the development of self-governing institutions, and also for safeguarding the civil and religious rights of all the inhabitants of Palestine, irrespective of race and religion. (Article 2)

 

An appropriate Jewish agency shall be recognised as a public body for the purpose of advising and co-operating with the Administration of Palestine in such economic, social and other matters as may affect the establishment of the Jewish national home and the interests of the Jewish population in Palestine, and, subject always to the control of the Administration to assist and take part in the development of the country. (Article 4)

 

The Administration of Palestine, while ensuring that the rights and position of other sections of the population are not prejudiced, shall facilitate Jewish immigration under suitable conditions and shall encourage, in co-operation with the Jewish agency referred to in Article 4, close settlement by Jews on the land, including State lands and waste lands not required for public purposes. (Article 6)[3]

Those who defend the legality of Israel’s possession of the West Bank rely heavily on this document. They especially take the “close settlement” clause to mean that Jews not only have the right but should be encouraged to settle anywhere within the mandate. They also claim, incredibly, that these documents originally gave the Jewish people title to the entire mandate, including Transjordan, in spite of the substantial Arab majority in that area! Abba Hillel Silver, representing the Jewish Agency, said as much before the General Assembly Ad Hoc Committee on Palestine on October 2, 1947. Stating that the Balfour Declaration never had partition in mind, he continued:

It was intended… that Palestine, the whole of Palestine should ultimately become a Jewish State. This is the clear testimony of Mr. Lloyd George, who was the British Prime Minister at the time of the issuance of the Declaration. The land referred to as Palestine in the Declaration included what is now Transjordan. The Royal Commission of 1937 declared that ‘the field in which the Jewish National Home was to be established was understood at the time of the Balfour Declaration to be the whole historic Palestine.’ That area has already been partitioned.

 

The first partitioning of Palestine took place in 1922 when Transjordan, representing three-quarters of the original area of Palestine, was cut off and has since been set up by the British as an Arab kingdom. Thus, one Arab state has already been carved out of the area assigned to the Jewish National Home. It is now proposed to carve a second Arab state out of the remainder of the country. In other words, the Jewish National Home is now to be confined to less than one-eighth of the territory originally set aside for it. This is a sacrifice which the Jewish people should not be asked to make.[4]

So briefly, it was bad enough that Transjordan had been severed from the mandate and made an Arab country. The Jewish people, to whom it rightfully belonged, should at least retain title to the rest. As a concession for peace the Jews did agree to the partition. But many today maintain it is not binding, and does not abrogate Jewish title to the rest of original Palestine.

Not surprisingly, in an address to the same body the Arab Higher Commttee presented its view that there should be one Arab state over the identical territory.[5]

Today “maximalist Zionists” (for the use of this term see Naming the Darkness: Religious Roots of the Middle East Conflict) use these documents to justify Israel’s occupation of the West Bank.

United Nations General Assembly Resolution 181

There is a popular belief that this General Assembly resolution (“Partition Plan”) , by setting forth boundaries of a Jewish and a Palestinian state, created the State of Israel. This is incorrect. The United Nations does not create new nation states.[6] The State of Israel did not come into being on November 29, 1947 when the resolution was passed, but on May 14, 1948 when it formally declared independence. What the Partition Plan did was gather an international consensus to establish the basis for recognition of the newly created state.

Indeed, Chapter IV of the United Nations Charter calls the resolutions of the General Assembly “recommendations” only. General Assembly decisions are binding only for certain internal matters, such as setting the budget, admitting new members, and electing members of the International Court of Justice. In other matters the General Assembly defers to the Security Council, whose decisions are mandatory: “The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.”[7]

Therefore the Partition Plan was merely a recommendation. Member nations are not obliged to accept it, including its provision for the creation of a Palestinian State. Israel’s former eastern border, known as the “Green Line,” has no legal status and is merely the “armistice line” marking the positions of the opposing armies at the end of the 1948 war. Israel’s true eastern border should be the Jordan River, as defined in the Palestine Mandate.

The Fourth Geneva Convention

Israel and Jordan both became signatories to the Convention in 1951. Critics of the occupation refer to the Convention as the basis for the illegality of the Jewish settlements. However, because Jordan’s occupation and annexation of the West Bank was illegal, Israel claims the Convention does not apply, citing Article 2:

In addition to the provisions which shall be implemented in peace-time, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.

 

The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.[8]

Since, the argument goes, Jordan never had legal title to the West Bank, the latter cannot be considered “the territory of a High Contracting Party” and therefore Israel’s occupation of it is not illegal.

And Article 49 states:

Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive.

Since those Israelis who settled in the West Bank did so of their own free will there was no “forcible transfer,” which constitutes a second reason that this Convention presumably does not apply.

Maximalist Zionists consider the Palestine Mandate plus this interpretation of the Fourth Geneva Convention an iron-clad case establishing the legality of the occupation and the legitimacy of the West Bank settlements.

The Case for Occupation: Summary

The case for the occupation and the legality of the settlements may now be summarized as follows:

  1. The Palestine Mandate, which has the force of international law, grants the entire territory from the (Jordan) River to the (Mediterranean) Sea to the Jewish people. It defines what at the very least should be Israel’s eastern border: the Jordan River. (Article 25 allowed for the separation of Transjordan from the rest of the mandate.)
  2. United Nations General Assembly Resolution 181 (better known as the “Partition Plan”), which allowed for two states, one Jewish and one Palestinian Arab, does not have the force of international law. It was passed only by the General Assembly, not the Security Council. It is therefore not legally binding and cannot provide a basis for the existence of a Palestinian state. The so-called “Green Line,” which until 1967 had been recognized de facto as Israel’s eastern border, has no legal status. It is merely an “armistice line” marking the point at which fighting ceased after the war for Israel’s independence.
  3. The Fourth Geneva Convention, which prohibits the resettlement of a country’s population into lands that it occupies, does not apply to this conflict.

Criticism

We now take the case for the occupation apart piece by piece. There are three issues to address:

  1. The Palestine Mandate, which got its language from the San Remo Resolution, which got its language from the Balfour Declaration
  2. The status of General Assembly Resolution 181
  3. The Fourth Geneva Convention

The Palestine Mandate Revisited

I would like to introduce this part of the discussion with a little aside: a brief consideration of Security Council Resolution 242. This resolution was passed in 1967 after the Six-Day War and was intended to provide a basis for a lasting peace. Here is its first part:

The Security Council,

 

Expressing its continuing concern with the grave situation in the Middle East,

 

Emphasizing the inadmissibility of the acquisition of territory by war and the need to work for a just and lasting peace in which every State in the area can live in security,

 

Emphasizing further that all Member States in their acceptance of the Charter of the United Nations have undertaken a commitment to act in accordance with Article 2 of the Charter,

 

1. Affirms that the fulfilment of Charter principles requires the establishment of a just and lasting peace in the Middle East which should include the application of both the following principles:

 

(i) Withdrawal of Israel armed forces from territories occupied in the recent conflict.

 

(ii) Termination of all claims or states of belligerency and respect for and acknowledgment of the sovereignty, territorial integrity and political independence of every State in the area and their right to live in peace within secure and recognized boundaries free from threats or acts of force.[9]

One phrase in this text has been the subject of interminable discussion: “Withdrawal of Israel armed forces from territories occupied in the recent conflict.” The Arab side has taken this to mean that Israel is legally obligated to withdraw from all of the territories that it captured during the war. Israel rightly pointed out that the word “all” does not appear in the text. “Withdraw from territories” does not imply all territories; no more than a partial withdrawal, possibly to be determined through negotiations, is required.

What does this have to do with the Palestine Mandate?

As noted earlier, the Balfour declaration states:

His Majesty’s Government view with favour the establishment in Palestine of a national home for the Jewish people. (emphasis added)

The San Remo Resolution states:

The Mandatory will be responsible for putting into effect the declaration originally made on November 8, 1917, by the British Government, and adopted by the other Allied Powers, in favour of the establishment in Palestine of a national home for the Jewish people. (emphasis added)

The Palestine Mandate states:

Whereas the Principal Allied Powers have also agreed that the Mandatory should be responsible for putting into effect the declaration originally made on November 2nd, 1917, by the Government of His Britannic Majesty, and adopted by the said Powers, in favor of the establishment in Palestine of a national home for the Jewish people. (emphasis added)

Note the conspicuous absence of the word “all.”

Balfour and its restatements do not say “all of Palestine.” They do not specify the entire territory of the mandate. They say “in Palestine.” New York City is in New York State, but New York City is not New York State. In interpreting “in Palestine” as synonymous with “all Palestine” the occupation supporters are making precisely the opposite argument that they make for Security Council Resolution 242. They want it both ways: to read in the word “all” when it suits them and to leave it out when it doesn’t.

If the language of the Balfour Declaration were not clear enough, the British Government itself clarified its meaning in a policy statement known as the British White Paper of 1922, or the Churchill White Paper. It stated explicitly:

Unauthorized statements have been made to the effect that the purpose in view is to create a wholly Jewish Palestine. Phrases have been used such as that Palestine is to become “as Jewish as England is English.” [His Majesty’s Government] regard any such expectation as impracticable and have no such aim in view. Nor have they at any time contemplated, as appears to be feared by the Arab Delegation, the disappearance or the subordination of the Arabic population, language or culture in Palestine. They would draw attention to the fact that the terms of the Declaration referred to do not contemplate that Palestine as a whole should be converted into a Jewish National Home, but that such a Home should be founded in Palestine.[10]

This could hardly be clearer, and would seem to accord with the plain meaning of the text. If something is “in” something, it is usually smaller than the something that it’s in.

Similarly, “encouraging close settlement by Jews on the land” does not necessarily imply all the land, and certainly does not imply granting Jewish sovereignty to all of it.

The inevitable conclusion is that the Palestine Mandate does not provide a foundation for claiming Jewish sovereignty on the West Bank.

Now if this were not enough, there is an entirely different line of argument making the Palestine Mandate irrelevant for settling present claims to the land. The Palestine Mandate was terminated in 1948. It has not been in effect for over 60 years. If occupation supporters want to apply that document as if it were still in force, consider the following provisions:

The Mandatory shall have full powers of legislation and of administration, save as they may be limited by the terms of this mandate. (Article 1)

 

The Mandatory shall be entrusted with the control of the foreign relations of Palestine. (Article 12)

 

The Mandatory shall be entitled at all times to use the roads, railways and ports of Palestine for the movement of armed forces and the carriage of fuel and supplies. (Article 17)

 

The Mandatory shall make to the Council of the League of Nations an annual report to the satisfaction of the Council as to the measures taken during the year to carry out the provisions of the mandate. (Article 24)[11]

It is not likely that Israel would be willing to cede to Britain powers of legislation, control of foreign relations, and the free use of its roads, railways, and ports. As for the League of Nations, it went out of existence after the Second World War. The responsibilities of the Mandatory to “secure the establishment of the Jewish national home” and to “encourage… close settlement by Jews on the land” are no more in force today than are the other provisions just cited.

UN General Assembly Resolution 181 Revisited

A cornerstone of Israel’s defense used to be the historical truth that the Jews accepted the United Nations Partition Plan but the Arabs did not. This has started to shift. Now it is not unusual to hear supporters of Israel insist that the partition plan was never legally binding because it was passed only in the General Assembly and not the Security Council, and in any case the Palestinians killed the plan when they rejected it right after it was passed. The 1967 border or “Green Line” is therefore not a true border and should not limit Israel’s territory. It is merely the “armistice line” at which the fighting happened to cease, and it is subject to possible further expansion.

This is a losing argument for Israel. The 1967 border did have international acceptance. Even the Arab Peace Initiative accepts it. Erasing the 1967 line leaves everything up for grabs. It means Israel has no eastern border at all. Defenders of the occupation try to use the Palestine Mandate to justify an eastern border at the Jordan River, but as we’ve just seen that doesn’t work. And in any case, the international community will never accept the Jordan River as Israel’s eastern border, nor any other border beyond the Green Line that does not result from a negotiated agreement.

It may be technically correct that General Assembly resolutions do not have the force of law. Nevertheless, GA 181 is more than a simple resolution, binding or not. It is an expression of the wish of the international community that there be two states on that land, one Arab and one Jewish. This protected Israel and led to the acceptance of the Green Line as a border even though it did not have formal recognition. That is the way a country’s border often comes about: it is what’s left when the dust settles after a conflict, the world gets used to it and accepts it, and it appears in maps and minds as the country’s actual border, which, in fact, it is.

Now it seems that Israel, through its Likud administrations, has worked hard and virtually succeeded in erasing the Green Line. The continued occupation and refusal to consider relinquishing Judea and Samaria have made impossible the establishment of a Palestinian state and a negotiated eastern border. So what will define Israel’s eastern border? As we have seen, the Palestine Mandate is not a viable option. Even if Israel’s interpretation of it were correct, which it isn’t, no other country accepts that view. Israel has now rejected the Green Line, so that too is out. This means that Israel will continue indefinitely without an eastern border, and gives ammunition to those who question Israel’s legitimacy.

Statements by Israel and its supporters about GA Resolution 181 are inconsistent if not actually hypocritical. All of a sudden the resolution is now nonbinding. But here is what Abba Hillel Silver, representative of the Jewish Agency for Palestine, told the United Nations Security Council on March 5, 1948:

We feel under the obligation to make our position unmistakably clear. As far as the Jewish people are concerned, they have accepted the decision. of the United Nations. We regard it as binding, and we are resolved to move forward in the spirit of that decision. (emphasis added) [12]

At a subsequent Security Council two weeks later Rabbi Silver repeated this assertion:

We are under the obligation at this time to repeat what we stated at a [262nd meeting] meeting of the Security Council last week: The decision of the General Assembly remains valid for the Jewish people. We have accepted it and we are prepared to abide by it.[13]

So it seems that General Assembly resolutions are “binding” when they work to Israel’s advantage and “non binding” when they don’t.

Indeed, the original position was that GA Resolution 181 would be binding even if the Palestinians rejected it, as Rabbi Silver went on to state:

The statement that the plan proposed by the General Assembly is an integral plan which cannot succeed unless each of its parts can be carried out, is incorrect. This conception was never part of the plan. Indeed, it is contrary to the statement made by the representative of the United States during the second session of the General Assembly. The setting up of one State was not made conditional upon the setting up of the other State. Mr. Herschel Johnson, representing the United States delegation, speaking in a sub-committee of the Ad Hoc Committee on the Palestinian Question on 28 October 1947, stated, in discussing this very matter in connexion with economic union: “The element of mutuality would not necessarily be a factor, as the document might be signed by one party only.”[14]

GA Resolution 181 is even enshrined in Israel’s Declaration of Independence:

On the 29th November, 1947, the United Nations General Assembly passed a resolution calling for the establishment of a Jewish State in Eretz-Israel; the General Assembly required the inhabitants of Eretz-Israel to take such steps as were necessary on their part for the implementation of that resolution. This recognition by the United Nations of the right of the Jewish people to establish their State is irrevocable.

 

This right is the natural right of the Jewish people to be masters of their own fate, like all other nations, in their own sovereign State.

 

ACCORDINGLY WE, MEMBERS OF THE PEOPLE’S COUNCIL, REPRESENTATIVES OF THE JEWISH COMMUNITY OF ERETZ-ISRAEL AND OF THE ZIONIST MOVEMENT, ARE HERE ASSEMBLED ON THE DAY OF THE TERMINATION OF THE BRITISH MANDATE OVER ERETZ-ISRAEL AND, BY VIRTUE OF OUR NATURAL AND HISTORIC RIGHT AND ON THE STRENGTH OF THE RESOLUTION OF THE UNITED NATIONS GENERAL ASSEMBLY, HEREBY DECLARE THE ESTABLISHMENT OF A JEWISH STATE IN ERETZ-ISRAEL, TO BE KNOWN AS THE STATE OF ISRAEL.[15]

The forces in Israel that are now trying to undermine GA Resolution 181 and erase it from memory are working counter to the current of the history of modern Israel since its founding. They can no longer complain that it was the Palestinians who rejected partition. Now they reject it too. They are trying to undo a key event in history that helped prepare the way for the recognition of Israel’s legitimacy.

The comparison between the General Assembly and the Security Council is also disingenuous. This statement by Dore Gold is typical:

Except for resolutions on the U.N. budget or the admission of new members, the resolutions of the U.N. General Assembly are supposed to be only non-binding recommendations. If this idea became accepted it would give the General Assembly many of the powers of the Security Council.[16]

How seriously does he mean that? Security Council Resolutions 446, 452, and 465 all assert that the settlements are illegal and that the Fourth Geneva Convention applies. Israel has not complied with these resolutions. Are Security Council resolutions also “nonbinding”?

The Fourth Geneva Convention Revisited

The tendentious interpretation of the Palestine Mandate is the keystone of Israel’s defense against the Fourth Geneva Convention. Without it that defense crumbles, as we will see.

Article 49 of the Convention contains another relevant clause in addition to the one cited earlier, which is not mentioned as often by those who defend the occupation:

The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.[17]

Here there is no mention of “forcible.” Since that word was used to modify “transfer” in the earlier clause, one might reasonably assume that the same word would also be used here if forcible transfers were intended. Indeed, non-forcible transfer of population from the occupier to the occupied has been a common practice of conquering nations since ancient times. It is one way of exerting control over the occupied entity.

Thus the Convention prohibits even non-forcible population transfers from the occupying country. In fact, this provision seems to have been written having in mind precisely the type of transfers Israel has executed to establish control over the occupied territory.

But what of the contention that, on the basis of Article 2, the clause applies only to the occupation of a “High Contracting Party”? It is true that both Israel and Jordan are High Contracting Parties to the Convention, but Israel maintains that Jordan’s occupation and annexation of the West Bank were illegal, that (after the Ottoman Empire) the West Bank never belonged to Jordan or any sovereign power and so there is no sovereign power to which it must return.

This is where the Palestine Mandate comes into play. Jordan is no longer a contender for sovereignty over the West Bank, first because its initial seizure of that territory was illegal, and second, because Jordan renounced its claim in 1988. The territory is therefore “disputed” between the two remaining contenders: Israel and the Palestinians. Israel maintains it has the superior claim because:

  1. the Palestinians never had sovereignty over it,
  2. Israel acquired it in a defensive war, and
  3. the Palestine Mandate gave Israel legitimate title to it.

We have already deconstructed point number 3. The Palestine Mandate will not bear the weight Israel wants to place on it. So we can subtract it from the equation, leaving only the first two points to consider.

We can start with the obvious premise that the West Bank either was part of Jordan before the Six-Day War, or it wasn’t. If it was part of Jordan then the Fourth Geneva Convention applies, as stated in Article 2: “The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party.” To all cases, without distinction as to who started the war. Israel’s occupation of Jordanian territory would therefore be illegal.

Now what if, as maximalist Zionists as well as the current Israeli Government maintain, the West Bank was never legally part of Jordan and thus not a High Contracting Party?

Consider point number 1: that the Palestinians never had sovereignty. The response is obvious. If the Palestinians never had sovereignty over the West Bank, neither did Israel. And we have removed the Palestine Mandate as a basis for deciding between the two. Palestinians were living there first, and Israel had no legal right to their territory. So the Palestinian claim prevails.

What about point number 2: Israel won the territory fighting a defensive war?

If Person A steals Person B’s house, then comes at you with a knife and you defend yourself with krav maga and knock him out, are you entitled to take Person B’s house? I don’t think so.

But, you say, “It’s really my house, because a land association that went out of business 70 years ago assigned it to me in a document that says so if I insert a word in it that the document does not contain” – well, that really doesn’t work. Person B has every right to keep the house he was living in before you, the second illegitimate owner, took it from the first illegitimate owner.

If Jordan acquired that land illegally, and said land was not part of the High Contracting Party (Jordan) that made war on Israel, then Israel cannot excuse keeping it on the basis of having fought a defensive war. The war was with the country and government of Jordan, not this other entity that never belonged to Jordan. If Jordan seized it illegally, that does not make Israel’s seizure of it legal. Without the Palestine Mandate as a foundation, Israel has no legal title to that land.

Another thought experiment: China attacks the United States, the US retaliates and wins. Does that entitle America to occupy Tibet?

Finally, in case there is any remaining doubt about the speciousness of the argument against the applicability of the Fourth Geneva Convention, Article 4 (rarely quoted for understandable reasons) explicitly states:

Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.[18]

This is certainly true of the Palestinians: whether considered nationals of a state bound by the Convention or nationals of no state at all, this provision covers them.

Conclusion

Arguments for the legality of the settlements and the occupation are not only logically wrong. They are bad for Zionism and for Jews generally. They give credence to the charge against Zionism that it is inherently expansionist and discriminatory and that since its very inception its intention was to colonize the entire land regardless of who else might be living on it. Up until now Israel had the moral argument that it accepted the United Nations Partition Resolution while the Arabs rejected it – the Jews were willing to share; the Arabs were not. Now things have changed. Now it is Israel and its most passionate supporters who are rejecting partition, who are quick to point out that the accepted eastern border of Israel from 1948 to 1967 is merely an “armistice line” that should have no force, and that the Palestinian territories are not “occupied” but “disputed,” even though the only Jews living in them arrived after 1967 and never integrated into Palestinian society. Before 1967 Israel had the moral high ground. Today we have a competition between two religiously inspired extremist ideologies.

Maximalist Zionists believe the Jewish people are entitled to all the land that was once ancient Israel, from the Mediterranean Sea to the Jordan River. (Compare this with the belief in Muslim entitlement to all the land once held by Muslims – not so very different.) I am not a maximalist Zionist, but I am a Zionist. By that I mean that Jews have as much right as any other people to independence and self-determination. Especially Jews in the Middle East, who know from first-hand experience that living as a minority in an Arab country means second-class status at best and active persecution at worst. Israel’s right to exist as a Jewish state should therefore be beyond question.

At the same time, we must also respect the rights of others to self-determination. As the Palestine Mandate, beloved document of maximalist Zionists, states: “nothing should be done which might prejudice the civil and religious rights of existing non-Jewish communities in Palestine.” Yet the civil rights of occupied Palestinians are being denied every single day. Both sides must realize that to end this unacceptable situation, neither side can get everything it wants. Maximalist Zionism must give up its maximalism. Jews may always feel a religious and historical connection to land earmarked for a Palestinian state, but must also be willing to live with the grief of not possessing it if there is to be peace.

At the same time, there is maximalism on the Palestinian side, and that too must be given up if there is to be peace. The most obvious Palestinian maximalism is embodied by Hamas and expressed in its Charter, which quotes anti-Semitic passages from the sayings of Muhammad himself to justify the slaughter of Jews. Yes, it is an unfortunate truth that anti-Semitism is part of the bedrock of Islam, and one of these days, even if I don’t live to see it, may we become able to recognize it and permit ourselves to discuss it.

Palestinian maximalism lives not only in Gaza but also on the West Bank. When “moderate” Mahmoud Abbas declares that Palestinians will do what they must to defend the holy places and not allow Jews “to desecrate them with their filthy feet”[19] he is participating in a longstanding tradition of Arab anti-Jewish incitement. The Palestinian insistence on “right of return” of refugees into Israel is also maximalist – it is an obvious rejection of partition between a Palestinian and a Jewish state and an insistence that Israel too become Palestinian. If Jews must give up their dreams of Judea and Samaria, of Hebron and Jericho, then so must Palestinians give up their dreams of Jaffa and Haifa. One cannot ask from the other side what one is unwilling to give oneself.

Right now the outcome looks pessimistic if not completely futile. We are trapped in an impasse of two inflexible positions, each fortified by the worst in religion and by longstanding mutual hatred. The chances of this status quo holding indefinitely are about as great as the chances of two tectonic plates grinding into each other with comparable tension not resulting someday in an earthquake. Therefore I have written this article not to support the Palestinian against the Israeli side, but to throw some doubt on one major ideological trend keeping this tension in place. The obstructionism on both sides is obstinate and deplorable. Condemning just one side only feeds the obstructionism on the other. Moderates on both sides must stand up against their extremists. I am waiting for a Palestinian critique of the right of return.

It may indeed be too late for a two-state solution, but there is no other viable option so we must still continue to support it. Perhaps if enough of us do, something possible yet unimaginable may still evolve.

Notes

  1. “Balfour Declaration,” November 2, 1917, http://unispal.un.org/UNISPAL.NSF/0/E210CA73E38D9E1D052565FA00705C61
  2. “San Remo Resolution,” April 25, 1920, http://www.cfr.org/israel/san-remo-resolution/p15248.
  3. “The Palestine Mandate,” July 24, 1922, http://avalon.law.yale.edu/20th_century/palmanda.asp.
  4. Jewish Telegraph Agency, “Silver Tells U.N. that Jews Will Accept Partition; Wants Unscop Plan Modified,” October 3, 1947, http://www.jta.org/1947/10/03/archive/silver-tells-u-n-that-jews-will-accept-partition-wants-unscop-plan-modified.
  5. Yearbook of the United Nations: 1947-48, December 31, 1948, http://www.mefacts.com/cache/html/un-documents/11270.htm.
  6. Dore Gold, “New States Are Not Created at the UN,” Jerusalem Center for Public Affairs, November 30, 2012, http://jcpa.org/article/new-states-are-not-created-in-the-un/.
  7. Charter of the United Nations, June/October 1945, http://www.un.org/en/documents/charter/index.shtml.
  8. Convention (IV) Relative to the Protection of Civilian Persons in Time of War, August 12, 1949, https://www.icrc.org/ihl/385ec082b509e76c41256739003e636d/6756482d86146898c125641e004aa3c5.
  9. “Security Council Resolution 242,” November 22, 1967, http://unispal.un.org/UNISPAL.NSF/0/7D35E1F729DF491C85256EE700686136.
  10. “British White Paper of June 1922,” June 3, 1922, http://avalon.law.yale.edu/20th_century/brwh1922.asp.
  11. “Palestine Mandate.”
  12. Security Council, “Two Hundred and Sixty-Second Meeting,” March 5, 1948, http://unispal.un.org/UNISPAL.NSF/0/02EA8C2370F7C75C85257656006775C1.
  13. Security Council, “Two Hundred and Seventy-First Meeting,” March 19, 1948, http://unispal.un.org/UNISPAL.NSF/0/5072DB486ADF13D0802564AD00394160.
  14. Ibid.
  15. Israel Ministry of Foreign Affairs, “Declaration of Establishment of State of Israel,” May 14, 1948, http://www.mfa.gov.il/mfa/foreignpolicy/peace/guide/pages/declaration%20of%20establishment%20of%20state%20of%20israel.aspx.
  16. Gold, “New States.”
  17. Convention (IV).
  18. Ibid.
  19. Khaled Abu Toameh, “Abbas: Israelis Have No Right to Desecrate Our Holy Sites with Their Filthy Feet,” Jerusalem Post, September 16, 2015, http://www.jpost.com/Arab-Israeli-Conflict/Abbas-Israelis-have-no-right-to-desecrate-our-holy-sites-with-their-filthy-feet-416307.