Playing loose with history and law in the settlement debate

Playing loose with history and law in the settlement debate

In an effort to back pedal on Vice President Joe Biden’s June 5 observation that Israel would be justified in using its own initiative to launch a pre-emptive strike against Iran’s nuclear facilities, State Department spokesman Ian Kelly quickly cautioned, “We are certainly not going to give a green light to any kind of military strike.
“But,” he added as a way of making such a future action diplomatically tolerable, “Israel is a sovereign country and we’re not going to dictate its actions.”
That notion — that the United States will not dictate the actions of sovereign Israel — is a sound one, but one that would come as a surprise to Kelly’s boss, Secretary of State Hillary Clinton, as well as her boss, President Obama, who have of late been very willing to issue all kinds of diktats to Israel, particularly regarding the issue of West Bank settlements.
The problem with this defective diplomacy, as is often the case where Israel is concerned, is that it operates in a morally inverted universe where the perennial victim status of the long-suffering Palestinians trumps any sovereign rights of Israel regarding its borders, security and even its survival in a sea of jihadist foes who yearn for its destruction. The settlement debate has also been hijacked by the Arab world and its Western apologists who, willingly blind to history, international law and fact, continue to assign the blame for the absence of peace on the perceived offenses of occupation and Israeli truculence. Thus, Secretary Clinton and her predecessor, Condoleezza Rice, have both referred to the nuisance Israel causes by letting Jews live in the West Bank, against the wishes of the Palestinians who view that territory as once and forever theirs, as “unhelpful” in seeking a viable solution to Palestinian statehood.
What is truly “unhelpful,” however, is the obsession with the settlement issue by the Arab states and the current U.S. administration, while they simultaneously ask nothing of the Palestinian Authority; in fact, Mahmoud Abbas has adopted a strategy now in his negotiations with Israel in which he merely waits for further Israeli concessions, largely as a result of the signals coming from Washington that it is happy to apply pressure on Netanyahu to implement broad policy changes.
What is “unhelpful” are the repeated references to the West Bank and Gaza, as well as East Jerusalem, as “Arab” land, the putative Palestinian state in waiting, encumbered only by Israeli oppression, the dreaded occupation, and those pesky settlers. This widely held notion that European Jews with no connection to historic Palestine colonized Arab land and displaced the indigenous Palestinian population, of course, is a key part of the decades-old propaganda war against Israel, and serves the perverse purpose of validating Arab territorial rights to the West Bank and Gaza, and, more importantly, casts Israelis as squatters who have unlawfully expropriated land that is — and never was — theirs.
That is a convenient fable, as is the fictive people that the Palestinians have been conjured up to be: an indigenous nation that had sovereignty, a coherent society, leadership, and some form of continuous government — none of which, obviously, have ever existed. More to the point, it is “unhelpful” to overlook the fact that not only all of the land that is current-day Israel, but also Gaza, the West Bank, and, in fact, the land east of the Jordan River that became Jordan, is part of the land granted to the Jews as part of the League of Nations Palestine Mandate, which recognized the right of the Jewish people to “close settlement” in a portion of those territories gained after the break up of the Ottoman Empire after World War I. According to Eugene V. Rostow, the late legal scholar and one of the authors of U.N. Security Council Resolution 242 written after the 1967 war to outline peace negotiations, “the Jewish right of settlement in Palestine west of the Jordan River, that is, in Israel, the West Bank, Jerusalem, and the Gaza Strip, was made unassailable. That right has never been terminated and cannot be terminated except by a recognized peace between Israel and its neighbors,” something that the intransigent Arab nations have never seemed prepared to do.
Moreover, Rostow contended, “The Jewish right of settlement in the West Bank is conferred by the same provisions of the Mandate under which Jews settled in Haifa, Tel Aviv, and Jerusalem before the State of Israel was created,” and “the Jewish right of settlement in the area is equivalent in every way to the right of the existing Palestinian population to live there.”
The Six Day War of 1967, in which Israel recaptured Gaza and the West Bank, including Jerusalem, resulted in Israel being cast in another perfidious role — in addition to colonial usurper of Arab land, the Jewish state became a brutal “occupier” of Arab Palestine, lands to which the Jews presumably had no right and now occupied, in the opinion of many in the international community, illegally. But that “unhelpful” view again presumes that parts of the territory that may someday comprise a Palestinian state is already Palestinian land, that the borders of the putative Palestinian state are precise and agreed to, and that Jews living anywhere on those lands are now violating international law.
When did the West Bank, Gaza, and East Jerusalem become Palestinian land? The answer is: never. In fact, when Israel acquired the West Bank and Gaza and other territory in the defensive 1967 war after being attacked by Egypt, Syria and Jordan, the Jewish state gained legally recognized title to those areas. In Israel’s 1948 war of independence, Egypt, it will be recalled, illegally annexed Gaza at the same time Jordan illegally annexed the West Bank — actions that were not recognized by most of the international community as legitimate in establishing their respective sovereignties. Israel’s recapture of those territories in 1967, noted Professor Stephen Schwebel, State Department legal advisor and later the president of the International Court of Justice in The Hague, made the Jewish state what is referred to as the High Contracting Party of those territories, both because they were acquired in a defensive, not aggressive, war, and because they were part of the original Mandate and not previously under the sovereignty of any other High Contracting Party. “Where the prior holder of territory had seized that territory unlawfully,” Schwebel wrote, referring to Jordan and Egypt, “the state which subsequently takes that territory in the lawful exercise of self-defense has, against that prior holder, better title.” In fact, he wrote in 1970, “Israel has better title in the territory of what was Palestine, including the whole of Jerusalem, than do Jordan and Egypt.”
Thus, the final borders of a Palestinian state do not yet exist, just as the final borders of Israel have not been defined, largely due to the Arab’s implacability in repeatedly refusing a state when it was offered to them — notably in 1937, 1947, 1967, and 2000 — because the creation of their state would entail recognizing, finally, the Israeli state, as well. And it is clearly “unhelpful” when Palestinian negotiators continue to point to West Bank settlements as the reason that Palestinian statehood cannot be realized, particularly since it has been assumed that the largest of the settlement blocs, comprising 80 percent of the total settlements, most of them contiguous with the 1949 Green Line, would become part of Israel through land swaps when the final borders are drawn.
It is also “unhelpful,” not to mention unrealistic, for those arguing on the Palestinian side, that the West Bank, like Gaza, eventually be made Judenrein, totally absent of Jews. For all the bleating about the negative impact of settlements on the nascent Palestinian state, Jews still comprise only about 12 percent of the West Bank’s population, and the dreaded settlements themselves occupy only some three percent of the West Bank’s land. Beyond the moral and political considerations, as a practical matter it would be virtually impossible, not to mention unnecessary, to uproot nearly 300,000 Israelis living in the West Bank. To put such a task in perspective, the 2005 disengagement from Gaza, when Israel forced the expulsion of just 9,000 Israelis, including 1,700 Israeli families, from the Gaza Strip and northern West Bank, required some 50,000 Israeli soldiers and policemen and an expenditure of some $1.7 billion — with no resulting peace.
Does anyone doubt that once the Palestinians, aided and abetted by mendacious Western elites and a morally incoherent international community of supporters, have purged Gaza, the West Bank and East Jerusalem of all Jews, that new calls will then arise accusing Jews of “occupying” more “Arab” lands in Tel Aviv, Netanya, Tiberias or Haifa? Professor Rostow saw through the disingenuous talk about legal rights when it came to the issue of the settlements. The discussion was not, in his mind, “about legal rights but about the political will to override legal rights.” In fact, the settlement debate is part of the decades-old narrative created by the Palestinians and their Western enablers to write a false historical account that legitimizes Palestinian claims while air brushing away Jewish history. “Throughout Israel’s occupation,” Rostow observed, “the Arab countries, helped by the United States, have pushed to keep Jews out of the territories, so that at a convenient moment, or in a peace negotiation, the claim that the West Bank is ‘Arab’ territory could be made more plausible.” As Abbas and Netanyahu prepare to come to the negotiating table, that “convenient moment” may well have arrived.

(Richard L. Cravatts, director of Boston University’s Program in Publishing at the Center for Professional Education, is currently writing a book about higher education, “Genocidal Liberalism: The University’s Jihad Against Israel.”)