Why the West Bank/Judea and Samaria is not "occupied," and why it matters
Professor of Law David Phillips wrote an article in Commentary last month exploring the notion that Israeli settlements in the West Bank/Judea and Samaria are "illegal." (See "Israeli settlements: Not illegal, but expansion should be suspended.") He concluded that this is an instance when what everyone "knows" is not in fact true. The League of Nations gave the British a Mandate for Palestine precisely in order to create a Jewish national home. After World War II the United Nations recommended dividing Palestine into a Jewish state and an Arab state. The Jews accepted partition but the Arabs did not. In the subsequent war Transjordan occupied and annexed the West Bank/Judea and Samaria, thereby becoming the nation of Jordan. The Jordanian occupation was never internationally recognized. "Thus, if the charge that Israel’s hold on the territories is illegal is based on the charge of theft from its previous owners, Jordan’s own illegitimacy on matters of legal title and its subsequent withdrawal from the fray makes that legal case a losing one." The Phillips piece is worth reading in its entirety.
Two new, important pieces have been written about Israel's relationship with the West Bank/Judea and Samaria. The first, "Israel's Right in the 'Disputed' Territories," in the December 30 Wall Street Journal, is by Israeli Deputy Foreign Minister Danny Ayalon. Ayalon reviews the historical and legal arguments for the proposition that Israel has rights in the West Bank/Judea and Samaria. Open-minded, thoughtful people who respect facts and seek the truth will want to examine them closely.
There has never been a Palestinian state in the West Bank/Judea and Samaria. The idea of the "West Bank" didn't exist until 1950. Its borders were intended to be temporary, not to define a country:
The boundaries of this territory were set only one year before during the armistice agreement between Israel and Jordan that ended the war that began in 1948 when five Arab armies invaded the nascent Jewish State. It was at Jordan's insistence that the 1949 armistice line became not a recognized international border but only a line separating armies. The Armistice Agreement specifically stated: "No provision of this Agreement shall in any way prejudice the rights, claims, and positions of either Party hereto in the peaceful settlement of the Palestine questions, the provisions of this Agreement being dictated exclusively by military considerations." (Italics added.) This boundary became the famous "Green Line," so named because the military officials during the armistice talks used a green pen to draw the line on the map.
After the Six Day war in 1967, there was wide diplomatic understanding that Israel would not have to withdraw to the armistice lines of 1949. The Green Line was not to be Israel's eastern frontier, because it was not defensible. Ayalon brings ample evidence:
It is best to understand the intentions of the drafters of the resolution before considering other interpretations. Eugene V. Rostow, U.S. Undersecretary of State for Political Affairs in 1967 and a drafter of the resolution, stated in 1990: "Security Council Resolution 242 and (subsequent U.N. Security Council Resolution) 338... rest on two principles, Israel may administer the territory until its Arab neighbors make peace; and when peace is made, Israel should withdraw to "secure and recognized borders," which need not be the same as the Armistice Demarcation Lines of 194."
Lord Caradon, the British U.N. Ambassador at the time and the resolution's main drafter who introduced it to the Council, said in 1974 unequivocally that, "It would have been wrong to demand that Israel return to its positions of June 4, 1967, because those positions were undesirable and artificial."
The U.S. ambassador to the U.N. at the time, former Supreme Court Justice Arthur Goldberg, made the issue even clearer when he stated in 1973 that, "the resolution speaks of withdrawal from occupied territories without defining the extent of withdrawal." This would encompass "less than a complete withdrawal of Israeli forces from occupied territory, inasmuch as Israel's prior frontiers had proven to be notably insecure."
Even the Soviet delegate to the U.N., Vasily Kuznetsov, who fought against the final text, conceded that the resolution gave Israel the right to "withdraw its forces only to those lines it considers appropriate."
Since Israel had a right to be present in the West Bank/Judea and Samaria, at least until it signed peace treaties with its neighbors (again, not with the Palestinian Arabs, who had never had a country), its citizens had a right to live there. This was particularly true in light of the fact that the area was part of the British Mandate, established specfically to create a Jewish national home:
After the war in 1967, when Jews started returning to their historic heartland in the West Bank, or Judea and Samaria, as the territory had been known around the world for 2,000 years until the Jordanians renamed it, the issue of settlements arose. However, Rostow found no legal impediment to Jewish settlement in these territories. He maintained that the original British Mandate of Palestine still applies to the West Bank. He said "the Jewish right of settlement in Palestine west of the Jordan River, that is, in Israel, the West Bank, Jerusalem, was made unassailable. That right has never been terminated and cannot be terminated except by a recognized peace between Israel and its neighbors." There is no internationally binding document pertaining to this territory that has nullified this right of Jewish settlement since.
This may not be an indisputable legal opinion (is there such a thing as a legal opinion that cannot be disputed?), but it is a solid legal opinion. Israel's legal claim to the West Bank/Judea and Samaria is at least as good as that of any Arab claimant.
This is important because, as Evelyn Gordon explains in "The Deadly Price of Pursuing Peace," in the December issue of Commentary, "peace processing" has worsened Israel's position and made peace more remote, as the view of the Jewish state as an illegal occupier has become the conventional wisdom:
When the Oslo process began in 1993, one benefit its adherents promised was a significant improvement in Israel's international standing. . . But 16 years later . . . [n]ot only is Israel's standing no better than it was prior to the famous handshake between Yitzhak Rabin and Yasir Arafat on the Whilte House Lawn in September 1993, it has fallen to an unprecedented low. Efforts to boycott and divest from Israel are gaining strength throughout the West. . . . European polls repeatedly deem Israel the greatest threat to world peace, greater even than such beacons of tranquillity and democracy as Iran and North Korea. . . . In academic and media circles, it has even become acceptable to question Israel's very right to exist --something never asked about any other state in the world. None of these developments was imaginable back in the days when Israel refused to talk to the Palestine Liberation Organization, had yet to withdraw from an inch of "Palestinian" land, and had not evacuated a single settlement. . . .
Yet even today, conventional wisdom, including in Israel, continues to assert that Israel’s international standing depends on its willingness to advance the “peace process.” That invites an obvious question: if so, why has Israel’s reputation fallen so low despite its numerous concessions for peace since 1993?
The answer is unpleasant to contemplate, but the mounting evidence makes it inescapable: Israel’s standing has declined so precipitously not despite Oslo but because of Oslo. It was Israel’s very willingness to make concessions for the sake of peace that has produced its current near-pariah status.
This charge requires backup, and Gordon delivers. She explains that Israel's own uncertainty about its rights in the West Bank/Judea and Samaria has left unchallenged the theme of Israel as aggressor, occupier and thief:
First, Oslo led Israel to sideline its own claim to the West Bank and Gaza, which all Israeli governments (and international Jewish leaders) had stressed to some extent before 1993. Though there had long been a lively debate as to whether Israel ought to hold on to these territories in practice, until 1993 all sides were ready to assert that it had a valid claim to them in principle. The argument in favor of Israel’s right to sovereignty there was simple: these territories are the historic Jewish homeland, the heart of the biblical Jewish kingdom. They were explicitly allotted to the future Jewish state by the 1922 League of Nations Mandate, which was never legally superseded. Although the 1947 UN partition plan allotted part of the land to a putative Arab state—a plan that Palestinians and other Arabs rejected as a matter of principle—it was merely a nonbinding “recommendation” (as its own language stated). Thus once the Arabs rejected it, the measure had no more validity than any other unsigned deal. Nor did any sovereign state ever replace the Mandate on this territory: though Jordan and Egypt conquered the West Bank and Gaza, respectively, in 1948, neither conquest was ever internationally recognized. Legally, therefore, the territories remained stateless lands whose ownership is disputed; over time, the Palestinians simply replaced Egypt and Jordan as the Arab claimants.
None of this precludes an Israeli cession of these areas; countries often waive territorial claims to secure peace agreements. But only if Israel has a valid claim can the act of ceding these lands be a “painful concession” that could arouse sympathy and admiration from the world. If Israel has no claim, it is nothing but a thief. And no one would admire a thief for returning some, but not all, of his stolen property, or for offering to return some, but still not all, of the rest if granted sufficient compensation. Such behavior would be universally condemned. Indeed, if Israel has no claim to this land, even conditioning withdrawal on an end to Palestinian terror becomes harder to justify. If the land is Israel’s, Israel can obviously refuse to cede it unless it receives peace in exchange. But if the land belongs to the Palestinians, many might argue that it should be returned unconditionally.
This latter notion, however, is precisely the picture Israeli discourse has increasingly painted since 1993. Perhaps because pro-Oslo Israelis viewed Israel’s own rights as too self-evident to need restating, they inevitably focused on defending the Oslo accord’s new and domestically controversial claim: that Palestinians, too, have “legitimate and political rights” in the West Bank and Gaza. Thus, for instance, Labor party chairman (and later prime minister) Ehud Barak said in a 1998 television interview that had he been a Palestinian, he would have joined a terrorist organization, because “there is legitimacy for a Palestinian to fight.” Such claims were rarely heard from mainstream Israelis prior to 1993: while the moderate Left had always favored ceding territory, it historically framed this as a necessity of peacemaking rather than a matter of Arab rights. . . .
Granted, much of the world was disposed to accept the Palestinian claim even before Oslo. But as the sage Hillel famously said 2,000 years ago, “If I am not for myself, who will be for me?” Oslo marked the moment when Israel stopped defending its own claim to the West Bank and Gaza and instead increasingly endorsed the Palestinian claim. And with no competing narrative to challenge it any longer, the view of Israel as a thief, with all its attendant consequences, has gained unprecedented traction.
This approach has had the effect of pushing away the chances of a peace agreement between Israel and the Palestinians, because it emboldens Israel's enemies to press the claim that the occupation began not in 1967, but in 1948. What is the difference between Ramallah and Jaffa, between Nablus and Haifa? Why should the Palestinians settle for the West Bank/Judea and Samaria when they see the possibility of taking all of the Land?
Israelis have no inclination, and no duty, to commit national suicide. Consequently, those who genuinely desire peace will recognize the legitimacy of Israel's presence in the territories.
PHOTO: West Bank/Judea and Samaria (AP)
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