Yes, there is no occupation – legally not practically


By Gil Troy, Jerusalem Post, 7-10-12

With the mind-numbing predictability of ants entranced by food, Israeli leftists and rightists are instinctively condemning or praising the former Supreme Court Justice Edmond Levy’s Committee for declaring that “Israelis have the legal right to settle in Judea and Samaria.” The report concluded that the laws of occupation “as set out in the relevant international conventions cannot be considered applicable to the unique and sui generis historic and legal circumstances of Israel’s presence in Judea and Samaria spanning over decades.” I agree. Israel’s control over the West Bank is legal. But that does not mean it is practical, advisable, tenable, moral or should be perpetual.

Both the Left’s hysteria and the Right’s euphoria distort the debate.  Rather than condemning the three-person commission report as “born in sin,” “stupid,” “ideological” not “legal,” and authorizing “crime” – as Yesh Din’s attorney Michael Sfard did — leftists should acknowledge the arguments’ validity. July 24 will mark the 80th anniversary of the League of Nations’ confirmation of the British Mandate in 1922 which granted Jews the rights to settle between the Mediterranean Sea and the Jordan River, given “the historical connection of the Jewish people with Palestine.” Those rights remain.  November 29 will mark the 65thanniversary of the UN partition plan which due to the 1948 war was not fully implemented. This created a legally ambiguous situation in the West Bank, both when Jordan, ahem, “occupied” it until 1967, and continues today, after Israel seized the disputed, legally undefined territory in a legitimate war of self-defense. And the post-Six Day War, UN Resolution 242 called for “Withdrawal of Israeli armed forces from territories occupied in the recent conflict” – not “the territories” or “all the territories,” while using the o-word, occupied.

These arguments are legally and historically valid. Leftists who profess to love peace should accept them, then confront Israeli rightists by saying, “Yes, we have legitimate, legal ties to this land. But I love peace so much I am willing not to exercise those valid rights because hundreds of thousands of Palestinians live there with their own national rights and needs.”  Israeli leftists lose credibility by minimizing the importance of Judaea and Samaria, of Hebron and Gush Etzion, to the Jewish people and the Zionist story. Returning something you believe you stole is meaningless.  Giving away something you know is yours, for pressing practical or ethical reasons, is magnanimous.

Israeli rightists have foolishly allowed their accurate reading of history and law to blind them to the complicated realities. Most Israelis do not want to control millions of Palestinians. A workable two-state solution would be good for the Jews, not just the Palestinians.

Just as Americans frequently misuse the word “constitutional” as a synonym for “good,” the international community often declares actions it likes “legal” and actions it dislikes “illegal.” This intellectual tic reflects the elaborate international legal structure developed after World War II which hoped to prevent another worldwide catastrophe. Unfortunately, the post-1960s politicization of these once universal principles, and the promiscuous labeling of phenomena as legal and illegal, have frequently confused matters, especially in the Middle East.

Rather than quibbling about legalities, let’s address the complicated realities. I reject the international community’s assumption – increasingly shared by many American Jewish elites – that the “occupation” is “illegal,” that settlements present the main obstacle to peace, and that the Palestinians have valid rights to the entire West Bank while the Jews do not.

Instead, I start with the historical understanding that in the area of historic Palestine, borders shifted and populations moved. Anyone’s monism – treating the messy Middle Eastern story as based on one single unifying idea – makes me moan. Accepting the chaos of the past encourages compromising in the present. In that spirit, the 70 percent Israeli peace consensus – the mainstream of the country consistently open to compromise – would keep the historic Jerusalem suburb of the Gush Etzion Bloc but would sacrifice historic Hebron, while affirming valid legal and historic rights there too.

The history that concerns me more is the tragic, destructive and self-destructive history of the Palestinian National movement, which has consistently rejected compromise. We should mark today, July 11, as the End of Arafat Delusion Day, the 12th anniversary of the start of the Bill Clinton-Ehud Barak-Yasir Arafat Camp David talks. Remember that Arafat did not even offer a counter-proposal in July 2000 to Barak’s sweeping proposal for a two-state solution – as Clinton himself confirmed. Arafat then proved to be the terrorist he was rather than the Nelson Mandela many dreamed he would be by unleashing a wave of terror. In his gripping, enlightening, stunningly fair book, The Anatomy of Israel’s Survival, Hirsh Goodman reminds us that: “The failure at Camp David and the ensuing violence were seen by both the Israeli Left and the Israeli Right as a total renunciation of the concept that peace was possible if Israel returned to the 1967 borders. Barak offered Arafat a deal considered by all to be substantial, fair, and beyond what any other Israeli had offered in the past. Still, the Palestinians wanted it all.”

Goodman notes that the pattern persisted through Mahmoud Abbas’s repudiation of Ehud Olmert’s generous proposals. Goodman wants to end the “occupation.” But he has too much integrity to manufacture a distorted history to serve his ideology, and instead acknowledges Israel’s “ball of thorns.”

Arguing about the legality of settlements and occupation is like neighbors quarreling about which one will have to pay the water bill as their row house burns. The core issue remains how two stubborn peoples in love with the same land learn to live together. Ideologues ignoring realities from all sides make peace more elusive, whether they label themselves “peaceniks” or not.

Gil Troy is Professor of History at McGill University and a Shalom Hartman Research Fellow in Jerusalem. The author of “Why I Am a Zionist: Israel, Jewish Identity and the Challenges of Today,” his next book, “Moynihan’s Moment: America’s Fight Against Zionism as Racism” will be published by Oxford University Press this fall.

Leave a comment


  1. Everything Gil says is true. The fly in the ointment is that a workable Palestinian State -especially West of the Jordan- seems a non-starter when viewing history realistically. Given the current political statements of the PA and its unceasing lionization of suicide bombers, etc. Israel must, at least, reassert its legal rights to the territories as a starting point.

  2. David Olesker

     /  July 11, 2012

    Gil, you are right in stating that the legal answer doesn’t solve the political question, but that doesn’t make it irrelevant. The question of legality is a fundamental one for both left and right. It’s trying to distinguish Israel’s legal rights within and without the “Green Line” that is the “legal quibble” and it’s one that Israel’s opponents seldom engage in; for the core group of anti-Israel ideologues “the occupation” extends to Tel Aviv and Eilat. Our legal claim to either of those cities is indistinguishable to our claim to Hebron or “East” Jerusalem.

    Whether one supports territorial compromise or not (and there are compelling arguments each way), the great center of Israeli political life sees it as exactly that,; a possible compromise of Jewish rights over the heat of our homeland. Some think it’s a good idea to compromise, some think it’s a bad one, but they agree that it’s a compromise.

    Distinct from what is a near consensus in Israel is the incompatible assumption that Jews have no rights over the disputed territories. Jews are seen as usurpers of land that axiomatically belongs not to them, but to Palestinian Arabs. This assumption is almost universal in the Arab and Muslim world and is increasingly shared in Europe.

    For those who support territorial compromise as a means of lessening international diplomatic pressure on Israel I have a question; when Jews are viewed as thieves, how can they expect credit for belatedly and reluctantly returning what they stole?

    For those who oppose territorial compromise I have a different question, how can you defend your position at home or abroad without asserting the legal claims of the Jews?

    And for those who haven’t made their minds up yet, here;s a third question; how can you defend Israel against the latest fad of forbidding the labeling of products manufactured or grown in the territories from being labeled “Made in Israel” if you never assert Israel’s legal claims to the territories?

  3. excellent and well written article

  4. I was not aware of Edmond Levy’s report, but it is high time Israelis combatted the decades long disinformation campaign about Israel’s legal right to the territories. Bringing this information forward is not “quibbling” over legalities. We have been beaten and bloodied by the illegal occupation and illegal settlements rhetoric.Israelis and their supporters should be presenting these arguments every time illegal this or that is mentioned. It will be a huge amount of work to undue the many many years of lies we have let go unchallenged, but we need to start somewhere.

    Regarding your notions of giving up our legally held territories as a sacrifice for peace,I think there is a clear majority that would support this. The problem is that peace has never been offered by the Palestinians and I don’t see why that would change anytime soon. The Palestinians and Arabs in general never talk about plain, simple peace but rather a “just and honorable” peace. These are inportant qualifiers. What constitutes justice and honor for them? Every indication is that leaving any formerly Muslim-contolled land in the hands of Jews meets neither test. A peace where Israel survives and thrives is not peace but the final acceptance of a major Muslim defeat. No Palestinian leader wants to preside over this. The enduring belief that the average Palestinian on the street really just wants to what we want, I.e. to live life and chill, is just pure delusion. A life without honor is not worth living. Just ask them.


Leave a Reply

Please log in using one of these methods to post your comment: Logo

You are commenting using your account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )


Connecting to %s

%d bloggers like this: