In January 2012, Israeli prime
minister Benjamin Netanyahu and Yaakov Neeman, the justice minister,
turned to former Israeli supreme court justice Edmond Levy to head a
panel of legal experts that would look into questions of land ownership
in the West Bank. The initiative came about when it was discovered that a
housing project in the settlement of Beit El, north of Jerusalem, had
been built years earlier on Palestinian private land, and the government
decided to adhere to the judgment of the Supreme Court to have the
Israeli building project removed. The panel was intended to study how
Israeli decision-making had been made in the past and what could be done
to avoid such situations in the future.
Yet,
looking back over the last two weeks, what appeared to hit a raw nerve
with the critics of the report, that was just released in July by Levy's
committee, was not what it had to say about the issues, for which the
committee was appointed, but rather with how it dealt with the broader
narrative for describing the Israeli-Palestinian conflict. This became
evident in how the reaction focused on the report's conclusion that "the
classical laws of 'occupation' as set out in the relevant international
conventions cannot be considered applicable to…Israel's presence in
Judea and Samaria" (the West Bank). It was this sentence that was
paraphrased and plastered on the headlines of Israeli newspapers and
became a subject of debate in the international media as well.
How did Levy's panel reach this conclusion along
with his two colleagues, Tehiya Shapira, the former deputy president of
the Tel Aviv District Court, and Alan Baker, the former legal advisor of
the Israeli foreign ministry in the 1990s? It was Baker who brought in a
unique expertise having been one of the main drafters of many of the
Oslo Accords with the Palestinians. The panel argued that the Israeli
presence in the West Bank was sui generis, because there was no
previously recognized sovereignty there when it was captured by the IDF
in 1967. The Jordanian declaration of sovereignty in 1950 had been
rejected by the Arab states and the international community as a whole,
except for Britain and Pakistan.
Moreover, as the Levy Report points out, the Jewish
people still had residual historical and legal rights in the West Bank
emanating from the British Mandate that were never cancelled, but rather
were preserved by the U.N. Charter, under Article 80—the famous
“Palestine Clause” that was drafted, in part, to guarantee continuity
with respect to Jewish rights won at the League of Nations.
Finally, with the advent of the Oslo Agreements in
the 1990s, there was no longer an Israeli military government over the
Palestinian population. Indeed, the famous 1949 Fourth Geneva Convention
on occupied territories stipulates that an occupying power is bound to
its terms “to the extent that such a Power exercises the function of
government in such territory (Article 6).”
Yet the establishment of the Palestinian Authority
in 1994 made the situation complex. For as a result, some functions of
government were retained by the IDF, others were exercised by the
Palestinians, and there were also shared powers. In other words, the
situation on the ground in the West Bank was not black and white, which
allowed moral judgments to be easily made about a continuing Israeli
occupation. The Palestinians did not have an independent state, but they
could not be considered to be under "occupation" when at the same time
they were being ruled first by Yasser Arafat and then by his successor,
Mahmoud Abbas.
The idea that the West Bank could not be simply
characterized as "occupied" comported with traditional Israeli legal
opinions. For instance, Israel's former ambassador to the U.N., Chaim
Herzog (who would later become Israel's president), appeared in the
General Assembly on October 26, 1977, and laid out Israel's legal status
in the territories with respect to the Fourth Geneva Convention on
occupied territories. He stated: "In other words, Israel cannot be
considered an 'occupying Power' within the meaning of the Convention in
any part of the former Palestine Mandate, including Judea and Samaria."
This view was reinforced again a quarter of a
century later. In May 2003, after the IDF conducted Operation Defensive
Shield in order to put an end to a two-year wave of Palestinian suicide
bombing attacks, Prime Minister Ariel Sharon astonished his supporters
by saying that the IDF could not continue to be deployed throughout West
Bank cities because that would mean keeping the Palestinians "under
occupation." However, Attorney General Elyakim Rubenstein, responded
that it was not correct to call the West Bank and the Gaza Strip
"occupied territories" but rather "disputed territories." A statement
published by the justice ministry added that "their status will be
decided by future agreements."
**
It is instructive to see how the international
community looks at far clearer cases of territories that came under
military control of foreign forces as a result of armed conflict. On
July 20, 1974, the Turkish army invaded Cyprus, which had been an
independent state since 1960, taking over 37 percent of the island. The
Turkish zone declared its independence in 1983, but no state, except
Turkey, recognized the new government.
How does most of the international community refer
to the territory of Northern Cyprus? The fact of the matter is that they
don't label it an "occupation." When the EU accepted Cyprus as a new
member state in 2004, it prepared a memorandum explaining that the
accession to the EU was suspended "in the area of the Republic of Cyprus
in which the Government of the Republic of Cyprus does not exercise
effective control."
There is also the example of Western Sahara, which
was completely taken over by the Moroccan army in 1979. After Spain
withdrew from the territory and a joint administration with Mauritania
failed to emerge, Morocco viewed Western Sahara as Moroccan territory.
Morocco's claim was challenged by the Polisario, the militia manned by
residents of the region that waged a guerilla war against the Moroccan
army with the backing of Algeria. The International Court of Justice in
the Hague formally rejected the Moroccan claim of sovereignty,
recognizing the people of Western Sahara’s right to self-determination.
In numerous resolutions in the U.N., Western Sahara has not been called
"occupied territory," even though the Moroccan army has been sitting on
land beyond the internationally recognized borders of Morocco.
At the end of World War II, the Soviet army invaded
Japan and occupied the Kuril Islands, which had been previously
Japanese territory. Here again, the Japanese foreign ministry's recent
paper on the Kuril Islands doesn't even speak about ending the Russian
occupation, but rather about the need to "reach a settlement of this
unresolved issue of the Northern Territories."
All three cases of Northern Cyprus, Western Sahara,
and the Kuril Islands are open and shut cases of foreign occupation
under international law and yet in the diplomatic arena the term
"occupation" is not formally applied to them. Ironically, in the case of
the West Bank, where the Israeli presence is a far more complex legal
issue, the term "occupation" has been uncritically applied, even by
Israelis.
Thus the decision to use the term "occupation"
appears to emanate as much from political considerations as it does from
any legal analysis. For "occupation" is a term of opprobrium. In much
of Europe, the term still invokes memories of the Nazi occupation of
France. Those being constantly bombarded by the term "occupation" in
Europe undoubtedly make subconscious links between Israeli behavior in
the territories and the events of the Second World War. Indeed, that is
the intention, in many cases, of those using and promoting this
language, despite the fact that such analogies are repulsive to anyone
with the least bit of Jewish historical memory.
Nonetheless, pro-Palestinian groups, and their
allies on the far left, use the charge of "occupation" as part of their
rhetorical arsenal—along with other epithets, like "colonialist,
apartheid state"—for waging political warfare against Israel. The charge
of "occupation" has evolved into one of the most potent weapons in the
delegitimization campaign against Israel.
It is noteworthy that the International Committee
of the Red Cross (ICRC) in Geneva published a study on the subject of
occupation in April 2012 that concluded that the term had unquestionably
acquired a "pejorative connotation." Experts attending the meetings of
the ICRC recommended replacing the term with new legal nomenclature, in
order to get wider adherence to international humanitarian law by those
who were occupying foreign territory but wanted to avoid the occupation
label.
There are also well meaning Israelis who call for
an "end to the occupation" in order to build internal political support
for a full Israeli withdrawal from the West Bank, by appealing to the
conscience of Israelis who do not want to think of themselves as
occupiers nor to have the world community see them this way. But in
making this call, its advocates strip Israel of the rights it acquired
in U.N. Security Council 242 that did not require it to pull back to the
pre-1967 lines, which have been regarded by most Israeli leaders from
Rabin to Netanyahu as indefensible.
Levy's committee has restored Israel's legal
narrative about its rights in the West Bank. There are those who charged
that in rejecting the application of the term "occupation" to the
Israeli presence in the West Bank, the Levy committee's report will set
the stage for eventual Israeli annexation of the territories. Of course
these concerns are baseless. The report of the Levy committee says
absolutely nothing about what political solution for the future of the
West Bank is desirable.
Nonetheless its conclusions are still important for
one diplomatic scenario, in particular: a negotiated end of the
Israeli-Palestinian conflict in the future. For at the end of the day,
there is a huge difference in how a compromise will look if Israel's
negotiating team comes to the peace table as "foreign occupiers," who
took someone else's land, or if they come as a party that also has just
territorial claims.
Moreover, as long as the international community
constantly fuels the "occupation" narrative, the Palestinians’
propensity to consider making a real compromise, which is critical for
any future agreement, will be close to nil. In fact, this false
narrative only reinforces their mistaken belief in the delegitimization
campaign against Israel as an alternative to seeking a negotiated
settlement of the conflict.
In sum, the "occupation" label is built on flawed
analysis and requires the application of transparent double standards by
those who use it, by which they single out Israel for condemnation that
it does not merit. Rather than creating a setting for diplomacy to
succeed, it only makes a real Middle Eastern peace more remote than
ever.
Dore Gold, Israel’s former ambassador to the United Nations, is president of the Jerusalem Center for Public Affairs.
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