Suissa: Are Critics of Israeli Occupation Getting Nervous?
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Date Posted: 2013-03-23 20:52:12
Houses are seen in the West Bank settlement of Efrat, near Bethlehem, on March 17. Photo by Ronen Zvulun/Reuters
It's a sure sign of nervousness when people start using the vocabulary of absolute certainty -- when they refuse to allow for even the possibility of debate.
That's precisely what Hussein Ibish did in his response in Daily Beast/Open Zion to my column last week where I suggested that Israel's presence on the West Bank ought to be characterized as "disputed" rather than "illegal"-- he refused to give an inch, or even a millimeter.
His headline captured his certainty, if not his smugness: "Of Course the Settlements are Illegal." His point of view was not even a point of view; it was, he declared, a "political and legal fact." Anything else is an "entirely fictive alternate reality" where people who disagree with him "neurotically retreat."
I don't blame Mr. Ibish for his anxiety. For years now, Ibish and other critics of Israel's occupation have had the field pretty much to themselves. It has become one of the world's hard-rock truisms that Israel's occupation is "illegal," repeated reflexively throughout the world's media and spawning the Boycott, Divestment and Sanctions (BDS) campaign to isolate and delegitimize the Jewish state.
So, you can understand if these critics were somewhat flummoxed last July when a respected juror, former Israeli Supreme Court Justice Edmond Levy, led a commission that concluded that "Israeli settlements are legal under international law."
I quoted that report in my article, and, interestingly, Mr. Ibish never refers to it in his rebuttal. Apparently, Ibish is so sure that this is a black and white issue that he won't even waste his time studying a report that introduces plenty of gray.
Is the issue of the settlements' legal status really so settled? How can we assess whether it's even worthy of debate?
Well, keep reading and decide for yourself.
Let's start with the Levy report, which Mr. Ibish chose to ignore. I will elaborate on why I consider its conclusions to be eminently fair and reasonable.
The report concludes that the laws of belligerent occupation do not apply de jure to Israel's presence in the West Bank. Is that reasonable?
As Avi Bell, professor at the University of San Diego School of Law, notes: "One of the sine quibus non of belligerent occupation, as reaffirmed recently in an expert conference organized by the International Committee of the Red Cross, is that the occupation take place on foreign territory," adding that "considerable state practice supports the traditional view that captured territory is 'foreign' only when another state has sovereignty."
Bell asserts that the Levy commission "is on solid ground in observing that neither Jordan nor any other foreign state had territorial sovereignty over the West Bank in 1967 and that the territory cannot therefore be 'foreign' for purposes of the law of belligerent occupation."
In fact, as we shall see, one could persuasively argue that Israel itself was already the lawful sovereign over the West Bank in 1967.
Ibish probably knows all that, which is why he chose to ignore the binding League of Nations agreements which laid down the Jewish legal right to settle anywhere in western Palestine, the area between the Jordan River and the Mediterranean Sea, an entitlement unaltered in international law.
This "Mandate for Palestine" was fully embraced by the international community. Fifty-one member countries -- the entire League of Nations -- unanimously declared on July 24, 1922:
"Whereas recognition has been given to the historical connection of the Jewish people with Palestine and to the grounds for reconstituting their national home in that country."
As Eli Hertz and other experts have pointed out, political rights to self-determination as a polity for Arabs were guaranteed by the same League of Nations in four other mandates -- in Lebanon and Syria [The French Mandate], Iraq, and later Trans-Jordan [The British Mandate].
You might be shocked to know that an Arab entity called Palestine never existed; the term Palestine referred only to the Jews.
Moreover, the Arabs never established a Palestinian state when the UN in 1947 recommended to partition Palestine, and to establish "an Arab and a Jewish state" (not a Palestinian state, it should be noted).
Nor did the Arabs recognize or establish a Palestinian state during the two decades prior to the Six-Day War when the West Bank was under Jordanian control and the Gaza Strip was under Egyptian control; nor did the Palestinian Arabs clamor for autonomy or independence during those years under Jordanian and Egyptian rule.
It's a fact, not an opinion, that the Arab Palestinian movement came of age only after the Arabs lost the Six Day War and the hated Zionists took over the West Bank.
And yet, Ibish has the chutzpah to refer to the disputed territory as "their [the Palestinians'] land." Who's living in an alternate universe?
