Astounding Facts Most People Don’t Know About Israel 32

 

The charge that Israel builds “illegal settlements” has no basis in international law – Part 2

 

This is not a pro-settlement blog. Nor is it an anti-settlement blog. As I’ve made absolutely clear to the point where people become confused, the future of the settlements and other issues for which Israel’s government has responsibility are matters for Israel’s democratically elected politicians. What I am attempting to do in these two articles is to look critically at the evidence for the near-universal depiction of Israeli settlements as illegal. The phrase illegal settlements is a dyad so ubiquitous that it has almost become one word. 

            In Part 1 [Blog 31], I identified several allegations that demand careful scrutiny as they are the primary battlegrounds in the “lawfare” campaign against Israel’s settlement policies. All have been forcefully rebutted by successive Israeli governments of varying political hues but Israel’s counterarguments have rarely been publicised in the mainstream media and are never taken seriously. So the attacks continue and must be confronted.

            Contrary to conventional wisdom, Israel’s legal approach to the settlements is not an eccentric one. Many heavyweight legal authorities have offered persuasive evidence that the settlements are legal. They have highlighted four specific topics: the Palestine Mandate, the Geneva Convention, the Oslo Accords, and the need for equality before the law. 

Respected Canadian expert on international law Jacques Gauthier [1] explains that historical events established today's Jewish legal rights in their reconstituted homeland. The key decisions were taken by the Principal Allied Powers at San Remo in April 1920, endorsed at the Treaty of Sèvres in August of that year, and then accorded full legal force by the League of Nations Palestine Mandate of 1922. All point to Israel’s legal rights to the territories she has held since 1967. (Similar legal processes were applied to Syria and Iraq under the Mandate system). The legal Jewish title to Western Palestine (i.e. from the River Jordan to the Mediterranean Sea), including the right of “close settlement” (Article 6 of the Mandate), is extant under the UN Charter (Article 80), and is not nullified by military conquest. Declarations by the UN and others that the settlements are illegal reflect political opinions that are not evidence-based.

In 2011, award-winning legal analyst Cynthia Day Wallace [2] wrote this about the Geneva Convention Article 49(6) that is often invoked to condemn the settlements: "The drafters’ intent was that of protecting vulnerable civilians in times of armed conflict by creating an international legal instrument that would declare as unlawful all coerced deportation such as that suffered by over forty million Germans, Soviets, Poles, Ukrainians, Hungarians and others, immediately after the Second World war. In the case of Israel, under international law as embodied in the Mandate for Palestine, Jews were permitted and even encouraged to settle in every part of Palestine, but they were not deported or forcibly transferred by the Government. Accordingly, calling the “East Jerusalem”, Judea and Samaria Israeli settlements “illegal” is not an apt application of the Fourth Geneva Convention."

The Oslo Accords (1993-95) did not outlaw the building of Jewish settlements in Area C (under full Israeli control) just as they didn’t outlaw the building of Arab settlements in Area A (under full PA control). What Oslo did was prohibit Jewish settlements in area A and Arab settlements in area C – unless authorised by the respective authorities. Israel has always abided by these terms while the Palestinian Authority has repeatedly violated them. Turning legal reality on its head, the PA – shamelessly supported by the international community – condemns the former while ignoring the latter. 

There’s more. In signing the Oslo accords, the PA recognised the settlements as a temporary reality the disposition of which would depend on the outcome of negotiations. Israel, in turn, gave two key assurances to President Bush (via a 2004 correspondence with PM Sharon) that went beyond her legal commitments at Oslo – that no new settlements would be built, and that existing ones would only develop from their outer perimeters inward to avoid encroachment on land that might comprise part of a future Palestinian state. Israel has abided by those promises.

So while Israel is wrongly excoriated for “illegal settlements” and even “war-crime settlements” the PA is actually the criminal, aided and abetted by the EU [3].

Those who conduct lawfare against Israel deliberately conflate the legal and political arguments surrounding the settlements. A cruel irony lies at the heart of the matter: if the spurious legal assertions were put aside, politics might stand a chance. The overwhelming majority of Israeli settlers live in the large settlement blocs of the West Bank, such as Ma’ale Adumim and Ariel, located close to the 1949 ceasefire lines. This means that almost all of the West Bank could potentially still be relinquished to the Palestinians as part of a future peace agreement, while these settlements could be integrated into Israel in a land swap [4].

The settlements are undoubtedly politically contentious and an irritant to the prospects of peace. But Israel is not responsible for the diplomatic impasse. As Sabel [5] has written: “The political wisdom of setting up Israeli settlements in the West Bank is a controversial issue. It can well be argued, however, that the Palestinians should have been aware that it is impossible to freeze a situation for over forty years. By refusing to reach a peace agreement they have incurred the inevitable result that the demographics of the area have changed over the years by the natural phenomena of population movement and natural increase.”         

           I have yet to see acknowledgement in any major global media platform of any of these rigorous, evidence-based counterarguments to the “illegal settlements” charge. The reason? It doesn’t fit with the contemporary narrative of Israeli wrong-doing and Palestinian victimhood. 
            The debate is not merely an academic one. In a convergence of lawfare and BDS (boycott, divestment, sanctions), several governments and international bodies (including the EU) have issued guidance discouraging trade involving Israel’s settlements on the grounds that they violate the Geneva Convention. Such guidance has not been issued in relation to Northern Cyprus, Western Sahara, Tibet, Crimea and other occupied territories on which settlements have been built. Kontorovich [6] reveals this blatant double standard regarding the applicability of the Geneva Convention to settlements: “No one has ever been prosecuted for this war crime, and its interpretation has been confined to academic and political statements — entirely within the particular context of Israel.” 
            The unfair singling out of Israel is part of a longstanding pattern of discrimination. We’ve seen how the other states emerging from the Mandate system established borders that reflected the administrative frontiers of their Mandates in keeping with uti possidetis juris, a doctrine denied only to Israel. We’ve seen how the Geneva Convention has been used to vilify Israeli settlements and no other settlement projects around the world. We’ve seen the way the Rome Statute of the International Criminal Court was deliberately formulated to attack Israel and only Israel. And we’ve seen this pattern of inequitable behaviour being replicated in other international fora. Such selectivity is a violation of the principle of equality as enshrined in article 2(1) of the UN Charter [7] and declared by the International Court of Justice as a fundamental pillar of international law. 
            Moreover, the disproportionate political and media focus on Israeli settlements – whose municipal boundaries occupy under 5% of the area of the West Bank – arguably represents a greater obstacle to peace than either their existence or their disputed legal status.
            Anti-Israel activists who claim that they are merely upholding international law are being disingenuous. Don’t be shy in challenging them if you don’t have a legal training – most of them don’t either. Next time you are faced with the “illegal settlements” smear, I suggest you retort with another dyad in the form of this simple request – evidence please. But don’t hold your breath for the answer. 

1.     Gauthier J. The Jewish Claim to Jerusalem. https://bbcwatch.org/2013/11/23/dr-jacques-gauthier-the-jewish-claim-to-jerusalem-the-case-under-international-law/

2.     Wallace CD (2011). Foundations of the International Legal Rights of the Jewish People and the State of Israel: Implications for the Current Debate: Executive Summary. European Coalition for Israel.

3.     Honest Reporting. https://honestreporting.com/honestreporting-exclusive-how-european-union-funding-of-west-bank-activities-breaches-intl-law-undermines-peace/

4.     Cornell S, Shaffer B. Occupied Elsewhere. Selective Policies on Occupations, Protracted Conflicts, and Territorial Disputes. Washington D.C., FDD, 2020.

5.     Sabel R. International Legal Issues of the Arab-Israeli Conflict: An Israeli Lawyer’s Position. Journal of East Asia and International Law 2010, 3(2):8-8. 

6.     Kontorovich E. Unsettled: A Global Study Of Settlements In Occupied Territories. Journal of Legal Analysis 2017, Vol 9 (2), 285–350  https://doi.org/10.1093/jla/lax004

7.     United Nations. United Nations Charter (Full Text), Preamble, Article 2(1). Geneva, United Nations, 1945.

 

 Astounding Facts Most People Don’t Know About Israel 31

The charge that Israel builds “illegal settlements” has no basis in international law – Part 1

 

Most people who damn Israel as a serial lawbreaker have no knowledge of international law; instead they absorb the torrent of legal smears about the country through a filter of disdain and assume they must be true. This illogical-logic even has a name: argumentum ad populum or “everyone knows.”

The phrase “illegal settlements” is an example of such inanity. It rolls off the tongue as though it were a statement of the obvious but like its twin, “Illegal occupation,” it poisons rational discourse on Israel. Both expressions are built on flimsy or non-existent foundations but their endless repetition – even within some relatively pro-Israel circles – has elevated them to a position of seemingly unassailable veracity. 

Those who promote the “illegal settlements” charge know that few people will take the trouble to dissect its legal foundation. This apathy hands an advantage to those who indulge in “lawfare” – the weaponisation of the law for political ends – against Israel. Because the many issues surrounding the legality of the settlements are complex and important, I’m devoting two articles to this topic [see Footnote*].

A brief historical recap is necessary. Following Israel’s entry to the West Bank, Gaza and East Jerusalem in the defensive Six Day War of 1967, Israel’s Labour-dominated government established a network of strategically located IDF installations and Jewish communities in these territories. Their purpose was threefold: to bolster the state’s security in the face of the ongoing refusal of her enemies to abandon violence and negotiate peace; to restore Jewish access to historically and religiously significant sites (most notably in the Jewish Quarter of Jerusalem) from which Jews had been unlawfully ejected by Arab forces in the War of Independence of 1947-49; and to hold as bargaining chips in the event of future peace negotiations. 

Following the election of the Likud in 1977, Israel approved the construction of additional settlements even if they served a minimal security need. This empowered militant Greater Israel groups who attempted to “create facts” by initiating unofficial settlements across the newly acquired territories. The government and Supreme Court responded by specifying strict conditions for a settlement to be formally recognised. First, its establishment had to be based on a government decision. Second, it could be built only on state-owned land or on land legally acquired by an Israeli citizen. Third, it had to accord with planning laws supervised by a municipal authority. If any of these conditions were not met, a settlement was deemed illegal and had to be removed, and thousands of such settlements have been evacuated and demolished over the years. 

Unauthorised settlements are clearly different from those that have been officially sanctioned by the state. For political reasons, the UN (most notoriously in Security Council Resolution 2334 of 2016) and the wider international community have chosen to blur this distinction. 

The UN, the International Court of Justice, the International Criminal Court and various NGOs offer three main arguments to justify the blanket designation of all Israeli settlements as illegal: that the occupation is illegal and therefore so are the settlements; that settlements violate the Fourth Geneva Convention; and that the Rome Statute outlaws the settlements.

Israel’s response to all three has been robust and evidence-based:

1. The occupation was an act of self-defence under Article 51 of the UN Charter and was therefore legal pending a peace treaty (Blog 30). UN Security Council resolution 242 of 1967 (accepted by Israel and rejected by her neighbours) implicitly recognised the legality of the occupation as it did not require Israel’s withdrawal from all the territories but to “secure and recognised boundaries” because at that time the Security Council acknowledged that the 1949 ceasefire lines – that resulted in Israel having a narrow waist only 9 miles wide – were indefensible. Resolution 242 has been the starting point for all attempts to achieve a negotiated peace agreement between Israel and her neighbours. While those efforts bore fruit with Egypt and Jordan, they have repeatedly floundered in relation to the Palestinians due to the intransigence of successive Palestinian leaders. 

 

2. The 1949 Geneva Convention, formulated in response both to Nazi atrocities directed primarily against Jews and to the post-war displacement of millions of Europeans, outlawed the forcible transfer of civilians across the international borders of sovereign states (“High Contracting Parties”). These conditions are not met by the settlements as a) all Israeli settlers relocated themselves voluntarily, b) no settlers have crossed internationally recognised borders, c) no Palestinians have been displaced to make way for settlements, and d) prior to 1967, no states held legal sovereignty over the so-called “Palestinian territories” – to which the Jordanians in any case renounced all claims, excluding the Islamic holy sites, in 1988 (Blog 29).

 

3. The 1998 Rome Statute that established the International Criminal Court declared that “indirect transfer” of civilians was a war crime – a novel notion that had no precedent in international relations The clause was inserted by the Arab states because they knew that invoking the Geneva Convention was inappropriate. In the words of blogger Elder of Ziyon [1], it was “a law written only for Israel. European powers went along with this hijacking of international law to target a single state. This makes the Rome Statute a travesty of international law.”               

    Several further counterarguments are offered by Israel and her supporters: 

1.  The legal provisions of the 1922 League of Nations’ British Mandate, guaranteeing the right of “close settlement by Jews” (Article 6) throughout Western Palestine (i.e. from the River Jordan to the Mediterranean Sea), were never rescinded and still apply under Article 80 of the UN Charter [2].

2. All of the states, with one exception, that emerged from the Mandate system adopted borders derived from the territorial frontiers of the Mandates based on the doctrine of uti possidetis juris; the one exception was Israel. Since article 2(1) of the UN Charter requires that all states and conflicts be treated equally, Israel has a legitimate claim to sovereignty based on the territorial frontiers of the Palestine Mandate as of May 1948 when she became an independent state [3].

3. Many settlements are located in areas (including Greater Jerusalem) that had not been allocated to the putative Arab state in the 1947 UN partition resolution that was accepted by the Zionist leadership and rejected by their Arab counterparts. Consequently, these areas cannot be retrospectively defined, in legal terms, as “Palestinian territory.”

4. Many settlements are located in places from which Jews were forcibly expelled in 1948 despite having lived there for centuries or millennia and to which they had legal title (e.g. Gush Etzion, Jerusalem’s Jewish Quarter).

5. The legal status of the settlements was transformed in 1993 when Israel signed the Oslo Accords with the Palestinian Authority, thereby ending her “belligerent occupancy” and thus the applicability of the Fourth Geneva Convention. The terms of these accords, formally endorsed by the international community, relegated a resolution of the settlement problem to final status negotiations, all attempts at which have floundered due to Palestinian intransigence.

6. The right of Jews (and indeed Arabs) to live peaceably and lawfully anywhere is enshrined in international treaties such as the International Covenant on Civil and Political Rights (1966), just as the discriminatory denial of Jewish (and indeed Arab) rights is illegal under the UN Charter [4]. 

        Out of this morass of disputation, which specific legal squabbles have paramountcy? That’s a matter of opinion but I suggest there are four: the Palestine Mandate, the Geneva Convention, the Oslo Accords, and the principle of equality before the law. I’ll explore those in more detail in the next blog.
        Meanwhile, keep half an eye out for the ubiquitous argumentum ad populum and watch what happens when you point out to its advocates the absurdity of elevating populist dogma to the status of legal fact. I’d wager that your challenge will, more often than not, be met with a revealing response – stunned silence.

*Full transparency: I am not an international lawyer but in these articles I cite many authorities who are and they deserve to be taken seriously – as does the legal position of all Israeli governments, whether of the left, right or centre, since 1967. That has not happened to date. 

1 Elder of Ziyon (2015). How the Arabs added specifically anti-Israel language to the Rome Statute of the ICC.  https://elderofziyon.blogspot.com/2015/01/how-arabs-added-specifically-anti.html

2 De Blois, M, Tucker A. Israel on Trial: How international law is being misused to delegitimise the state of Israel. The Netherlands, The Hague Initiative for International Cooperation, 2018.

3 Thinc. The Hague Statement of Jurists on the Israel-Palestine conflict. The Netherlands, The Hague Initiative for International Cooperation, 2017.

4 United Nations. United Nations Charter (Full Text), Preamble, Article 2(1). Geneva, United Nations, 1945.

 

 Astounding Facts Most People Don’t Know About Israel 30

 The charge that Israel “illegally occupies Palestinian territory” has no basis in international law

 

When it comes to international law, the key principle for Israel’s critics seems to be – to paraphrase Louis XIV – “It is illegal because I wish it.” Why is the endlessly recurring charge of “illegal occupation” so significant?

 

Multiple Arab states didn’t merely unleash their military might against Israel on the day of her birth in May 1948; in parallel, they initiated a propaganda war that continues to this day. Nothing unusual in that, it happens in all conflicts. But here’s a strange thing about this disinformation campaign: few, beyond the direct participants, are aware of its existence. Instead, large swathes of the world have swallowed the malign accusations hurled at Israel as though they were gospel truth. 

 

An example is the phrase “Occupied Palestinian Territories” – a politicised statement with no basis in reality [blog 29]. Its purpose is to disadvantage Israel diplomatically by nullifying any Israeli claim to even a centimetre of the disputed territories thus pre-empting the negotiations that the UK and many other countries keep reminding us, without irony, must take place. 

 

But Israel’s enemies have been disappointed by the impact of their cynical efforts to rewrite history. It hasn’t been as profound as they’d hoped. While many observers have been taken in by the lies and Israel’s reputation has been smeared, the country still exists, indeed is thriving. 

 

So the critics have gone further and deployed a new argument – that Israel’s “occupation of Palestinian land” is not merely wrong but illegal. They claim that her current (and therefore future) presence there is an unequivocal violation of international law. While calling the disputed land “Occupied Palestinian Territories” puts Israel on the defensive in any negotiations, defining them as “illegally occupied” renders negotiations redundant. It brands Israel a criminal state and no civilised country negotiates with criminals. And it effectively endorses the Palestinian rejection of territorial compromise or peace negotiations. If unchallenged, the current impasse would become permanent and any hope for peace would evaporate.

 

So much for the motivation underlying the charge of illegality. But is there any juridical validity to it? 

 

To answer that question requires us to dig deeper into the position of international law regarding occupation and how they relate to Israel’s entry into and administration of the territories. 

 

Robbie Sabel, an international law professor at the Hebrew University in Jerusalem, [1] writes: “The West Bank has not been incorporated into Israel, and therefore those areas of the West Bank not part of the Palestinian Authority are administered by Israel in accordance with the international rules on administering occupied territory. This is a crucial point: though the term has negative connotations, occupation is legal in times of armed conflict. There’s even a technical term for it – belligerent occupancy – that incurs responsibilities on the occupying power.”

 

According to legal scholar Eyal Benvenisti [2], “The regime known as belligerent occupation refers to a situation where the forces of one or more States exercise effective control over a territory of another State without the latter State’s volition.” Because the disputed territories were void of sovereignty, Israel has rejected the term on de jure grounds since these territories were never part of another state, and in any case “effective control” over most of their residents was ceded to the Palestinian Authority in 1995. Nevertheless, Israel has always accepted her de facto responsibilities as an occupier under international humanitarian law. That position has, of course, failed to satisfy her adversaries.

The International Court of Justice, in its advisory opinion (not a judgement) in 2004 on the Legal Consequences of “The Wall,” refrained from characterizing the Israeli occupation as illegal. And former ICJ President, Rosalyn Higgins [3], has stated that “there is nothing in either the [UN] Charter or general international law which leads one to suppose that military occupation pending a peace treaty is illegal.”

            

The United Nations is frequently cited as the final arbiter of international law and the repository of all moral authority in international affairs. This view is based on a profound misunderstanding of the nature of the organisation (as opposed to its Charter). 

 

The UN General Assembly is a political tool of its constituent members. It has been implacably hostile to Israel for decades and is in thrall to the wishes of the Arab League that bullies and cajoles member states with economic and political threats and inducements. It has often issued hate-filled, irrational statements (such as ‘Zionism is a form of racism’ from 1975 to 1991). But pronouncements of the UN General Assembly neither constitute international law, nor acquire the force of international law by constant repetition. 

 

As for the Security Council, only Chapter VII resolutions are legally binding – and the SC had never passed one in relation to Israel. With rare exceptions, it has relied on one key resolution to try to end the conflict, namely the famous resolution 242 of 1967 that Israel accepted and the entire Arab world rejected [blog 28].

 

International law is determined, first and foremost, by mutually agreed undertakings incorporated into multinational treaties and conventions. Two groups of 20th century treaties are especially relevant to the status of the disputed territories.

First, the 1919 Paris peace conference (and related summits) established, in a series of declarations, the right of Jews to revive their national home under the terms of the Palestine Mandate that included (even in its truncated form after the creation of Transjordan in 1922 under article 25) all of the territory west of the Jordan River, including what is today often designated ‘the West Bank’ and ‘East Jerusalem.’ 

International lawyer Cynthia Day Wallace [4] summarised the legal position thus: “The primary foundations in international law for the claim based on “historic rights” or “historic title” of the Jewish people in respect of Palestine are the San Remo decisions of April 1920, the Mandate for Palestine of July 1922, approved by the Council of the League of Nations and bearing the signatures of that international treaty by the Principal Allied Powers in July 1922, and the Covenant of the League of Nations itself (Art. 22). The rights thereby granted to the Jewish people (with the exception of the provisions of Article 25 of the Mandate, relating to Transjordan) were aimed at the establishment of a Jewish national home throughout Palestine. These rights have never been rescinded.” 

Second, the 1993-95 Oslo Accords (that are conceptually linked to UNSC Resolution 242 ) have the status of an international treaty that is legally binding on all the participants. The Declaration of Principles described the Israeli-Palestinian consensus, backed by the international community, on the nature of the new arrangements. These included the establishment of the Palestinian Authority in Area A (parts of the West Bank and all of Gaza), bringing 98% of the Palestinian population under PA control, and Area C where around 80% of Judea and Samaria’s Israeli citizens live. The term “occupation” – legal or otherwise – is nowhere to be found in those agreements.

The Oslo Accords created a post-occupation reality that was accepted by the parties as a transitional stage towards a final status agreement that would end the conflict. In other words, following Oslo the state of belligerent occupancy – such as it was – came to an end. That status was affirmed in 2013, in a case brought by the PLO against a company connected to the light railway in Jerusalem. The French Court of Appeal in Versailles [5] ruled that the “occupation was not illegal.”

 

"Pro-Palestinian" activists, including those associated with the politicidal BDS (boycott, divestment and sanctions) movement, who weaponise international law to attack Israel, claim they are simply seeking to uphold the law. We know this to be disingenuous for two reasons. 

 

First, in international law, as in all law, there are always two sides to a question. If this were not the case, there would be little need for legal solutions. The arguments concerning the disputed territories are complex and primarily political in nature; international law cannot be invoked to resolve them with finality. 

 

Second, anti-Israel lawfare is overwhelmingly focused on alleged Israeli lawbreaking rather than with the numerous other territorial disputes, many of which are on a far larger scale than the Israeli-Palestinian one [6]. The obsessive, strident and discriminatory condemnations of Israel’s putative criminality tell us far more about the accusers rather than the defendant. 

 

Louis XIV was a controversial monarch but he left us a few memorable aphorisms. My personal favourite is: “Do not assess the justice of a claim by the vigour with which it is pressed.” 

 

Next time someone buttonholes you with dogmatic claims of Israel’s “illegal occupation,” you might wish to recall the Sun King’s wise advice.

 

1. Sabel R. International Legal Issues of the Arab-Israeli Conflict: An Israeli Lawyer’s Position. Journal of East Asia and International Law 2010, 3(2):8-8: 10.14330/jeail.2010.3.2.08

2. Benvenisti E. Occupation, belligerent. Oxford Public International Law. https://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e35

3. Higgins R. The Place of International Law in the Settlement of Disputes by the Security Council. American Journal of International Law 1970, vol. 64, 1-15.

4. Wallace CD (2011). Foundations of the International Legal Rights of the Jewish People and the State of Israel: Implications for the Current Debate: Executive Summary. European Coalition for Israel.  https://www.ec4i.org/book-by-dr-cynthia-day-wallace/

5. Jean-Patrick Grumberg J-P (2017). Israel is the legal occupant of the West Bank, says the Court of Appeal of Versailles. Dreuz. Info. https://www.dreuz.info/2017/01/israel-is-the-legal-occupant-of-the-west-bank-says-the-court-of-appeal-of-versailles-france-124054.html

6.  Kontorovich E (2017). Unsettled: a global study of settlements in occupied territories.

https://academic.oup.com/jla/article/9/2/285/4716923

 

 

 

Astounding Facts Most People Don’t Know About Israel 29

The phrase “Occupied Palestinian Territories” is an anti-Israel slogan designed to pre-empt negotiations

As an epidemiologist, I’ve been monitoring Israel’s response to the Covid pandemic. When I checked the UK government’s travel advice website, I encountered this heading: information on travelling to Israel and The Occupied Palestinian Territories [1]. That distracted me from the coronavirus and propelled me in the direction of another contagious disease: wilful misinformation.
            All branches of the UK government seem to follow a similar nomenclature. The Home Office says: The West Bank and Gaza have been ‘occupied’ by Israel since 1967. They are collectively known as the Occupied Palestinian Territories (OPTs).
            The UK is widely considered to be pro-Israel (reflected in the possibly ironic quote marks?) yet in describing the West Bank (Judea and Samaria) and Gaza in this way, they (like most other countries and the UN) ignore Israeli protestations that the term is politicised, biased and prejudicial to peace. Who is right?
            Let’s examine each of the three words comprising the OPT* in turn. 

 “Occupied?”

After the War of Independence ended in March 1949, a series of ceasefire lines were established at the Rhodes Conference [1]. These originated from a meeting in November 1948 when two commanders, Israel’s Moshe Dayan and Jordan’s Abdullah el-Tell, agreed on boundaries drawn with a green wax pencil on a map to indicate Israeli-controlled areas; Jordanian-controlled areas were marked in red. In time, the armistice line between Israel and its Arab neighbours came to be known as The Green Line. 

            This was never viewed – even by the UN – as an international border. The Arab world didn’t recognise it (nor were willing to accept a Jewish state behind any borders) and nor did the wider international community that viewed it as a temporary staging post on the road to peace talks (that the Arab states tragically refused to contemplate). So when Israel crossed the Green Line into the West Bank and Gaza in 1967, she neither crossed an international border nor took control of the sovereign territory of another state. In other words, Israel’s “occupation” didn’t meet, on prima facie grounds, the legal criteria set out in the Hague and Geneva conventions. Nevertheless, Israel accepted the de facto humanitarian responsibilities of an occupying power under the conventions and fulfilled that role with considerable (though rarely acknowledged) success until 1995 [see blog 6].

Even if the term “occupation” is deemed to apply to the period 1967-1993, that status ended with the internationally endorsed Oslo Accords (1993-95) when Israel’s authority over 98% of the Palestinian population living in the West Bank and Gaza was transferred to the newly created Palestinian Authority (PA) – note the name. The Accords made no mention of a continuing occupation. That should have put paid to the matter. Yet the widespread assertion that the Israeli occupation continues as though Oslo never happened is false. It also displays a breathtaking double standard. 

            Consider a case in which both the UK and US were closely involved. Iraq was occupied by the Coalition forces from early 2003 until June 2004 when all authority other than security was handed to the Iraqis. At that point, Coalition forces remained in Iraq but the country was no longer deemed occupied. “If handing over authority to a Coalition-appointed interim government ended the occupation of Iraq, would the same not hold true for the establishment of the Palestinian Authority?” asks Israeli lawyer Avinoam Sharon [2]. A fair question. 

            In the absence of a final peace agreement between Israel and the PA, there are unresolved competing claims to the same territory. The Oslo Accords recognised that and specified that the outstanding differences (including about borders) must be settled by direct negotiations between the parties. Until that endpoint is reached, the areas in question are clearly disputed rather than occupied. Reflecting this, and notwithstanding the UN’s (and most countries’) insistence on deploying either the OPT or “Palestine” descriptor, all key UN resolutions have called for the status of these territories to be resolved peacefully, a demand that only one party (Israel) has consistently respected by seeking a Palestinian negotiating partner and offering (in, for example, 2000, 2001 and 2008) generous terms – including full Palestinian sovereignty – in the process.

 

“Palestinian”?

In 1922, 78% of the British Mandate was hived off from the Jewish National Home (that had been provisionally delineated by the international community in 1920 at San Remo) and handed to the Hashemite dynasty of Mecca. They have ruled over what was effectively a Palestinian Arab state, comprising all the Mandate territory east of the Jordan river, ever since. Today that state is known as Jordan. Of the remaining 22% of Mandatory territory, still more land was offered to the Palestine Arabs in 1947 by the UN partition resolution 181, but their leaders violently rejected that offer, unlike the Jewish leadership who accepted it. Consequently, that resolution – that would have created a second Palestinian Arab state alongside Israel – was never implemented. 

            In 1948, Jordanian forces illegally entered the eastern section of the Mandate and within a couple of years annexed eastern Jerusalem along with a district known for millennia as Judea and Samaria (that Jordan promptly renamed “the West Bank”) but that land grab was never recognised internationally. (Incidentally, the Jordanians renounced all claims to the area, excluding the Islamic holy sites, in 1988). Simultaneously, Egypt entered Gaza but didn’t annexe it, merely keeping it under military rule until Israel won control of the Strip in 1967. 

            If the land Israel “occupied” in 1967 wasn’t Jordanian or Egyptian, what was it? It certainly wasn’t Palestinian as no such entity as Palestine existed, nor was it regarded as such by the UN. The phrase “occupied Palestinian territory” was never mentioned, even as a whisper, when Jordan and Egypt ruled the areas from 1948 to 1967, nor did it appear in UN resolutions referring to the Six Day War, but was conjured out of thin air only some years after Israel became the controlling power. 

            

“Territories”?

Today Israel exerts control of about 60% of the West Bank, the so-called Oslo Area C; this contains a small minority of the West Bank Palestinian population but a large majority of the (mainly, but not exclusively, Jewish) Israelis (“settlers”) living there.

            The great majority of West Bank Palestinians live in Area A, ruled by the PA (where, incidentally, not a single Jew is permitted to reside). Area A originally included Gaza but it has been ruled by Hamas since 2007, who snatched the Strip from PA control in a bloody coup. Despite a full Israeli withdrawal in 2005, the PA, UN and others claim Gaza remains “Israeli occupied” on two specious grounds: first, that Israel controls Gaza border crossing points, and second, that Israel runs everyday life in the Strip indirectly through an “invisible hand” or “remote control.” The first doesn’t bear scrutiny as the Egyptian military also controls a border with Gaza yet that country is never said to occupy the Strip, while the second is a form of magical thinking that should have no place in international relations. Neither of these criteria for occupation has ever been applied elsewhere. At most, therefore, the term “occupation” should apply to one territory (the West Bank) not two. 

To summarise the evidence relating to the so-called “Occupied Palestinian Territories”:

            1. Prior to 1967, no sovereign Palestine entity existed anywhere, ever, and no amount of historical revisionism can change this reality. When Israel gained the West Bank and Gaza in the Six Day War, she found herself administering real estate that was devoid of sovereignty. Nobody called these areas “occupied Palestinian territories” in the period 1948 to 1967. The phrase was invented after 1967 to smear Israel. 

            2. Even if an Israeli occupation, either in the full or partial meaning of the term, existed post-1967, it unequivocally ended in 1995 with the Oslo Accords that made no reference to continuing occupation.

            3. Following Israel’s withdrawal of all her remaining troops and civilians from Gaza in 2005, one territory (the West Bank including parts of Jerusalem) rather than two remained at issue, in Oslo terms, between Israel and the Palestinians pending a final status agreement. 

The continued and repeated use of the phrase “Occupied Palestinian Territories” (or the even more contentious term “Palestine”) is thus not only devoid of evidential logic but also cynically pre-empts the negotiated disposition of these territories between the parties, as demanded by Oslo (and the earlier Security Council resolutions 242 and 338), to the disadvantage of Israel. That seriously undermines Israeli trust in the Oslo process and is thus an obstacle to peace. 

            All of the arguments presented here are based on verifiable information that is in the public domain. Yet most of the world is determined to avoid engaging with them. Why is Israel subjected to uniquely stringent – and often fictional – historical, political and legal standards by the international community? 

            On my next trip, I may take a look at Morocco. Wait – doesn’t Morocco occupy Western Sahara despite this having been deplored by the UN [3] since 1977? Isn’t Western Sahara one of the UN-designated “non-self-governing territories” (of which Britain still holds over a dozen) whose future is supposed to be settled by negotiations? Let’s see what the UK Foreign Office [4] says: Western Sahara is a disputed territory and the UK regards its status as undetermined. 

            I rest my case. 

                  

1. UK Government (2022). Foreign Travel Advice, Israel https://www.gov.uk/foreign-travel-advice/israel

2. Sharon A. Why Is Israel’s Presence in the Territories Still Called “Occupation”? Jerusalem, Jerusalem Center for Public Affairs, 2009 https://studylib.net/doc/13465055/why-is-israel’s-presence-in-the-territories-still-called-...

3. UN General Assembly Resolution 34/37, 1977 https://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/A_RES_34_37.pdf

4. UK Government (2022). Foreign Travel Advice, Morocco https://www.gov.uk/foreign-travel-advice/western-sahara#Political-situation

 

*A note on terminology 

In this and succeeding blogs, I am conscious of entering a terminological minefield. Language is often weaponised to discredit political opponents: for example, right wingers talk of “Judea and Samaria” or “Greater Israel” while left wingers talk of “the West Bank” or “Palestine.” Because I use language pragmatically, leftists dismiss me as a right-wing reactionary while rightists damn me as a pie-in-the-sky liberal. They are both wrong. As a committed moderate, I subscribe to neither of these warring tribes and avoid linguistic shouting matches. My concern is solely to analyse the evidence. I express no political preference for any of the options available to Israeli politicians – that is a matter for them and their electorate.

 Astounding Facts Most People Don’t Know About Israel 28

 

How a missing three-letter word in 1967 saved Israel from disaster 

“Words have more power than atom bombs,” said the wordily-named Pearl Strachan Hurd. Israelis have long recognised the wisdom of that quote.

            Immediately after the Six Day War of June 1967, Israelis were euphoric. For the second time in a generation, they had defeated far larger military forces without the help of foreigners (apart from the relatively small diaspora Jewish community). Their country had emerged unscathed from another near-death experience. What happened next would determine the future course of the conflict.

            A hastily convened UN Security Council was split along the usual Cold War lines. At British instigation, the famous resolution 242 was drafted. While emphasising the somewhat malleable and ambiguous judicial principle of “the inadmissibility of acquiring territory by force,” it pointedly refrained from demanding a total Israeli withdrawal but instead called on Israel to withdraw “from territories” she had occupied in the conflict. 

            Seldom has so much political controversy been generated by a subtle point of grammar. In the original English version, the exclusion of the word “the” before “territories” obviated the need for Israel to withdraw from all the territories she had taken. Had that word been inserted, it would have consigned Israelis back to the vulnerable 1949 ceasefire lines – “the Auschwitz Lines” as Abba Eban called them, recalling the abyss into which Israel peered on the eve of the Six Day War. The French version, by contrast, had (probably deliberately) mistranslated from the original English to include the lethal “the” – thereby disadvantaging Israel via a linguistic ruse.

            Arthur Goldberg, the US ambassador to the UN and a key drafter of Resolution 242 commented: “The notable omissions in language used to refer to withdrawal are the words ‘the,’ ‘all,’ and the ‘June 5, 1967 lines.’ I refer to the English text of the resolution. The French and Soviet texts differ from the English in this respect, but the English text was voted on by the Security Council, and thus it is determinative. In other words, there is lacking a declaration requiring Israel to withdraw from the (or all the) territories occupied by it on and after June 5, 1967.”

            This was not diplomatic sophistry [1]. The removal of that three-letter word from the final draft of the resolution – despite repeated attempts to insert it – was a diplomatic coup for Israel, and an especially impressive one given that the co-drafters, the UK Foreign Secretary George Brown and his UN Ambassador Lord Caradon, had hardly figured among Israel’s strongest supporters in the past. 

Resolution 242 was eventually passed on 22 November 1967. Israel immediately accepted the resolution while the Arab League rejected it outright, reiterating their knee-jerk rebuff to Israeli peace overtures in August 1967 at Khartoum known as the Three Nos: no peace with Israel, no recognition of Israel, no negotiations with Israel. (To be fair, Egypt and Jordan grudgingly agreed to “consult” with the UN about its implementation but their insistence on reading it as if the definite article were included – as well as their demand for the return of hundreds of thousands of Arab refugees to Israel – ensured that the consultation would go nowhere as the resolution they “accepted” was a fictitious one). 

Thereafter, a deadlock ensued that has lasted decades. Israel’s insistence on retaining at least a sliver of territory to act as a buffer against potential further armed aggression from her neighbours proved amply justified. As former Israeli Labour politician Einat Wilf [2] has written: “The humiliating defeat of five Arab armies in 1967, and the loss of the Golan Heights, the West Bank, the Gaza Strip and the Sinai Peninsula in a short span of six days, did nothing to change the basic Arab mythology of the temporary nature of Israel. While the western world was establishing the formula of ‘land for peace’, the Arab world clarified its rejection of it.”

The two key achievements of the Six Day War, from Israel’s perspective, were  formidable: first, the Jewish state had survived another onslaught from multiple Arab armies whose declared goal was her annihilation, and second, the post-war prioritisation of her security concerns – in particular her protestation that the 1949 armistice lines were indefensible – was formally acknowledged by an otherwise indifferent (or hostile) international community. A full, unconditional and immediate withdrawal of Israel troops from Sinai, Gaza, the West Bank and the Golan Heights, as demanded by all of her adversaries, was off the table for the time being. Israelis had some breathing space, and it was Israel’s erstwhile nemesis, the British government, that had played a major role in granting it to them via the Security Council. 

Let’s dispose of the myth that, regardless of resolution 242, Israel had a legal and moral obligation to return all of the captured territory. As every educated teenager knows, there is nothing unusual in territory acquired in a defensive war being ceded by the vanquished to the victors – the Second World War saw precisely that geo-political process unfold on a large scale after 1945 [3]. Israel, as so often, was subjected to different standards. Again and again, the Arab League thundered its demand that Israel relinquish every centimetre of occupied territory as a precondition for negotiation, and the international community, fearful of the economic power wielded by the Arab oil cartel OPEC, cravenly capitulated.

All who lived through the latter decades of the twentieth century will recall how frequently Israel was accused of “intransigence.” The historical record proves the baselessness of that charge. Despite the fact that Israel had won a war of survival against her far more powerful neighbours, and despite the diplomatic cover afforded by resolution 242, successive Israeli governments have proved astonishingly magnanimous in victory, to a degree unprecedented in the annals of warfare. 

When Anwar Sadat broke ranks with his rejectionist Arab allies, Israel returned to Egypt the entire Sinai peninsula, at a stroke relinquishing 90 percent of all the territory she had occupied in the 1967 war; the ensuing “cold peace” was a consequence of the Egyptian refusal to implement all the clauses of normalisation they had agreed with the Israelis. 

Nevertheless, further Israeli withdrawals followed, from the northern West Bank and all of Gaza – the former as part of the peace treaty with Jordan in 1994, and the latter in a courageous but failed experiment in 2005 to enable the residents of Gaza to rule themselves without threatening their Israeli neighbours. These high-risk redeployments of the IDF involved the evacuation of thousands of Jewish settlers, often in the face of hostile Israeli public opinion, giving the lie to the claim that Israeli settlements are an intractable obstacle to peace. 

Israel offered further withdrawals to the Syrians (who rejected them all) and, above all, to the Palestinians. A territorial compromise with Syria has become a remote prospect given the way that country’s totalitarian leaders have reduced their country to a blood-soaked disaster zone. The offer to the Palestinians remains on the table – yet Palestinian leaders, despite their commitment under the Oslo Accords of 1993-95 to negotiate a final peace agreement, have rejected it five times since the turn of the millennium alone (in 2000, 2001, 2008, 2014, 2016 and 2020). These failed initiatives were variations on the same theme in which Israel would allocate up to an eye-watering 96% of the West Bank to Palestinian sovereignty, along with land swaps for the remainder.

            The outcome of the Six Day War cannot be deemed responsible for the absence of peace. On the contrary, Israel’s extraordinary largesse would have been impossible in the absence of the 1967 victory and the strengthened bargaining position that the captured territories handed Israeli negotiators. But a bargain can only be struck if both sides are willing to compromise. Israel was always willing to place her security at risk by trading “land for peace” and Egypt and Jordan belatedly accepted (and benefited) from that formula. Arafat and Abbas, for reasons best known to themselves, repeatedly declined it. 

            It was the Arab League’s infamous Three Nos – not Israel’s triumph – that crushed the hopes for peace raised by the Six Say War. To this triple negative, the Palestinian leadership added a fourth, one that has underpinned all Arab rejectionism for a century – no acceptance of Jewish sovereignty behind any borders. It reflects the stance of Palestinian leader Amin Husseini in the 1920s and it remains the watchword of the Palestinian Authority’s Mahmoud Abbas in the 2020s. 

            Words matter. If a three-letter word saved Israel in 1967, the Arab leaders’ devotion to a two-letter word has betrayed their own people for over a century. That’s all anyone trying to make sense of the Arab-Israeli conflict, and all the pain it has caused, needs to know: no more, no less. Just “no.” 

 

1. Lövy A. Resolution 242 doesn't mean what people think it means – opinion. Jerusalem Post, 23 November 2021

https://www.jpost.com/opinion/resolution-242-doesnt-mean-what-people-think-it-means-opinion-686795

2. Wilf E. Fathom 2017. As long as the Arab world views Israel as a temporary aberration to be conquered, Israel will stand fast. 

https://fathomjournal.org/1967-as-long-as-the-arab-world-views-israel-as-a-temporary-aberration-to-be-conquered-israel-will-stand-fast/

3. Europe after World War 2 (1949). Diercke International Atlas. 

https://www.diercke.com/content/europe-after-world-war-two-1949-978-3-14-100790-9-36-4-0