The West Bank Isn’t Occupied?


occupation west bank.jpgThe Center for American Progress’ Matt Duss has a sharp, detail-rich mind when it comes to discussing beneath the surface Middle East issues. But so too does Israel Deputy Foreign Minister Danny Ayalon, who I have enjoyed appearing with on Al Jazeera from time to time (before his current post) and who I suspect is going to one day reinvent himself out of Avigdor Lieberman’s party into a more substantial role in either a reconstituted Kadima or progressive wing of Likud someday.
In a significant Wall Street Journal piece today, Ayalon attempts to assert a provenance of the West Bank that no Republican or Democratic administration — nor any major nations of which I am aware — would agree with.
I think Ayalon is negotiating with this article, trying to bolster his credentials in the right leaning political fray in Israel at the moment, trying to invent leverage yet again to check any progress by the weakened George Mitchell team, and contriving to make Israeli non-concessions in the peace process appear like genuine gestures that that the progress-needy Obama team might grasp for out of desperation.
In a terrific essay that he has allowed TWN to reprint, and which first appeared at Think Progress’ “Wonk Room”, Matt Duss takes a scalpel to and fillets Ayalon’s assertions.
matthew_duss_140x140.jpgThis is a guest post by Matt Duss, a National Security Researcher/Blogger at the Center for American Progress.

Israeli Deputy Foreign Minister: The West Bank Isn’t Occupied
Israel’s Deputy Foreign Minister Danny Ayalon takes to the Wall Street Journal op-ed page to argue that the West Bank, where numerous aspects of Palestinian life continue to be proscribed by Israeli military law, as they have been for over forty years, is not really occupied. Ayalon complains that “little appears to be truly understood about Israel’s rights to what are generally called the ‘occupied territories’ but what really are ‘disputed territories.'”

That’s because the land now known as the West Bank cannot be considered “occupied” in the legal sense of the word as it had not attained recognized sovereignty before Israel’s conquest. […]
After the war in 1967, when Jews started returning to their historic heartland in the West Bank, or Judea and Samaria, as the territory had been known around the world for 2,000 years until the Jordanians renamed it, the issue of settlements arose. However, [U.S. Undersecretary of State for Political Affairs Eugene V.] Rostow found no legal impediment to Jewish settlement in these territories. He maintained that the original British Mandate of Palestine still applies to the West Bank. He said “the Jewish right of settlement in Palestine west of the Jordan River, that is, in Israel, the West Bank, Jerusalem, was made unassailable. That right has never been terminated and cannot be terminated except by a recognized peace between Israel and its neighbors.” There is no internationally binding document pertaining to this territory that has nullified this right of Jewish settlement since.
And yet, there is this perception that Israel is occupying stolen land and that the Palestinians are the only party with national, legal and historic rights to it.

On it’s face, this is a laughably tendentious argument, the sort that one would find in the pages of Commentary but that’s not taken particularly seriously by actual legal scholars or historians. Unfortunately, given that the Deputy Foreign Minister of Israel has taken it up, it has to be taken seriously, at least in as much as it indicates the extreme irredentist views of the current Israeli government.
Leaving aside the appeals to the authority of the British Mandate — the right of European colonial powers to carve up and give away their subjects’ land in the first place is, let’s just say, not uncontroversial — Ayalon’s quoting of Rostow is very selective. Rostow recognized in no uncertain terms (in the very same piece that Ayalon references, in fact) that the West Bank was occupied territory.
As did former Israeli Prime Minister Ariel Sharon, decidedly not a Palestinian nationalist, who admirably cut through the bull in 2003 and acknowledged the bare fact: “You cannot like the word, but what is happening is an occupation — to hold 3.5 million Palestinians under occupation. I believe that is a terrible thing for Israel and for the Palestinians.” Sharon’s successor, Ehud Olmert, also affirmed this view, noting in reference to the resentment and hatred created by Israel’s military control of over 3 million Palestinians that “We see the occupation as problematic.”
As to the notion that the previous status of the territories as Jordanian-administered somehow absolved Israel from its commitments under the Geneva Conventions, this argument was actually made and rejected by the Israeli foreign ministry’s own legal counsel before the first settlement brick was even laid. As recounted by Israeli journalist and historian Gershom Gorenberg — whose history of the settlements The Accidental Empire is well worth reading — “the legal counsel of the Foreign Ministry, Theodor Meron, was asked whether international law allowed settlement in the newly conquered land.”

In a memo marked “Top Secret,” Mr. Meron wrote unequivocally, “My conclusion is that civilian settlement in the administered territories contravenes the explicit provisions of the Fourth Geneva Convention.
In the detailed opinion that accompanied that note, Mr. Meron explained that the Convention — to which Israel was a signatory — forbade an occupying power from moving part of its population to occupied territory. […]
Mr. Meron took note of Israel’s diplomatic argument that the West Bank was not “normal” occupied territory, because the land’s status was uncertain. The prewar border with Jordan had been a mere armistice line, and Jordan had annexed the West Bank unilaterally.
But he rejected that argument for two reasons. The first was diplomatic: the international community would not accept it and would regard settlement as showing “intent to annex the West Bank to Israel.” The second was legal, he wrote: “In truth, certain Israeli actions are inconsistent with the claim that the West Bank is not occupied territory.” For instance, he noted, a military decree issued on the third day of the war in June said that military courts must apply the Geneva Conventions in the West Bank.

Unfortunately, the Israeli government ignored Meron’s legal advice, and developed a series of shifting legal rationales to justify the annexation and colonization of the occupied land, which has helped to create the exceedingly difficult and volatile situation we have today.
Attempts at arriving at an internationally recognized legal dispensation for the land of Israel-Palestine have been based on the understanding that the land is legitimately claimed by two peoples, and that neither of those two peoples are going to get all of what they want. Mr. Ayalon’s argument turns this understanding on its head. Israel currently controls around 75% of what was Palestine — land on which Israel recognizes no Palestinian claim, and indeed which the current Israeli government insists the Palestinians must relinquish any claim even before negotiations.
At the same time, the current Israeli government now also insists that Israel’s own claims on the remaining 25% must be taken into account. Yet, in rejecting this frame-up, we’re apparently supposed to believe that it’s the Palestinians who aren’t being reasonable.
— an essay by Matt Duss that first appeared at Think Progress’ “Wonk Room

— Steve Clemons