Commentary Magazine


Topic: League of Nations Mandate

Settlements’ Legality Won’t Prevent Peace

The release of a report on the legality of Israel’s presence in the West Bank commissioned by Prime Minister Netanyahu is being widely dismissed by critics of his government as well as those of the Jewish state. Though its findings that Jews have the right to live in the territories and that Israel’s presence there does not fit the traditional definition of a military occupation are solidly based in international law, no one should expect the left to respect the report issued by a panel headed by former Supreme Court Vice President Edmond Levy. Nor should we be surprised if the international community ignores it. Opposition to the settlements is so deeply entrenched that there is no argument, no matter how grounded in logic or justice, that would persuade those committed to the myth settlements are the only obstacle to peace, that they are not illegal. As legal scholar David M. Phillips wrote in the September 2009 issue of COMMENTARY, international law supports this position.

But while we expect this effort to be trashed, those horrified by the fact that Israel is willing to assert that it has rights in the West Bank that are as worthy of respect as those of the Arabs are not just wrong about the legal arguments. Their assumption that a belief in the settlements’ legality makes a peace deal impossible is equally mistaken. Just because Israel has rights in the West Bank doesn’t mean it need necessarily exercise them on every inch of the territory. The assertion of Jewish rights merely means Israel has a leg to stand on when negotiating the permanent status of the West Bank and Jerusalem. Far from that rendering peace unlikely, it ought to give Palestinians an incentive to come to the table and work out a deal that will give them as much of the territory as they can get. The obstacle to peace is the Palestinian belief that the Jewish presence throughout the country — including pre-1967 Israel — is illegitimate.

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The release of a report on the legality of Israel’s presence in the West Bank commissioned by Prime Minister Netanyahu is being widely dismissed by critics of his government as well as those of the Jewish state. Though its findings that Jews have the right to live in the territories and that Israel’s presence there does not fit the traditional definition of a military occupation are solidly based in international law, no one should expect the left to respect the report issued by a panel headed by former Supreme Court Vice President Edmond Levy. Nor should we be surprised if the international community ignores it. Opposition to the settlements is so deeply entrenched that there is no argument, no matter how grounded in logic or justice, that would persuade those committed to the myth settlements are the only obstacle to peace, that they are not illegal. As legal scholar David M. Phillips wrote in the September 2009 issue of COMMENTARY, international law supports this position.

But while we expect this effort to be trashed, those horrified by the fact that Israel is willing to assert that it has rights in the West Bank that are as worthy of respect as those of the Arabs are not just wrong about the legal arguments. Their assumption that a belief in the settlements’ legality makes a peace deal impossible is equally mistaken. Just because Israel has rights in the West Bank doesn’t mean it need necessarily exercise them on every inch of the territory. The assertion of Jewish rights merely means Israel has a leg to stand on when negotiating the permanent status of the West Bank and Jerusalem. Far from that rendering peace unlikely, it ought to give Palestinians an incentive to come to the table and work out a deal that will give them as much of the territory as they can get. The obstacle to peace is the Palestinian belief that the Jewish presence throughout the country — including pre-1967 Israel — is illegitimate.

As Phillips and the new report pointed out, the international conventions prohibiting the movement of people into occupied territory has no application in the West Bank, as it forms part of the League of Nations Palestinian Mandate that was established to facilitate the creation of a national home for the Jews. Far from the West Bank being “stolen” from the Palestinians, it was simply unallocated territory from the former Ottoman Empire where Jews had legal rights as powerful as those of the Arabs. Nor do the postwar resolutions formed in response to Nazi policies in Eastern Europe that are frequently cited by settlement foes apply to Israel’s very different policies.

The widespread interpretation of this report is that it will allow Netanyahu to avoid demolishing those settlement outposts that were not previously authorized by the government. But any outpost that was built on land owned by Arabs can still be uprooted by legal action, as was the case with the Ulpana neighborhood of Beit El.

The fallacy here is not just that the effort to delegitimize the Jewish presence in the West Bank and Jerusalem is not a correct interpretation of international law. It is just as important to note that once Israel’s rights are confirmed, it doesn’t obligate Netanyahu or any of his successors to hold onto all of the land. The report’s recommendations that limits on growth in existing settlements should be lifted likewise doesn’t mean that a peace deal can’t be reached. Most of the settlements would be retained even in proposals put forward by the Jewish left, and those left out could still be evacuated, as the withdrawal from Gaza proved.

What it does do is force the Palestinians to understand that if they want peace, they must compromise.

But that is something they won’t do on the West Bank for the same reason they are unwilling to recognize Israel’s legitimacy as a Jewish state no matter where its borders are drawn. It is that reluctance to give up their opposition to Jewish sovereignty even inside the Green Line that prevents peace. Were the PA willing to make a peace deal that would end the conflict for all time, they could have the independent state they were offered and refused in 2000, 2001 and 2008. The settlement’s legality wouldn’t stop Israel from evacuating any place conceded in a peace deal. But so long as the Palestinians are encouraged to believe they can uproot all of the Jews, including those living in the Jewish settlement built on the outskirts of Jaffa a century ago that is now known as Tel Aviv, it won’t matter what the legal scholars say about any of this.

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Re: What the Palestinians Really Want

In his post on Friday, Rick correctly identified the myth that has foiled every peace-making effort for decades: namely, that the Palestinians actually want a state.

To understand just how untenable this myth is, it’s worth comparing Palestinian behavior with that of the Jews in 1947. The UN Partition Plan proposed that year gave the Jewish state only 12 percent of the territory originally allotted to it under the 1922 League of Nations Mandate, and only 56 percent of what remained after Britain tore away 78 percent of the original territory to create Transjordan (today’s Jordan). Moreover, it excluded Jerusalem, the focus of Jewish national and religious longing throughout 2,000 years of exile. And its borders were completely indefensible, as the plan’s map shows.

Nevertheless, the pre-state Jewish leadership accepted it. Why? Because two years after the Holocaust — which not only proved the dangers of not having a state, but left hundreds of thousands of Jewish survivors as stateless refugees in desperate need of a home — this leadership believed any state, even one so badly flawed, was better than none. Only a state could resettle the survivors and allow them to rebuild their lives; only a state could make “never again” a reality rather than an empty slogan.

The Palestinians, according to their own universally accepted narrative, are in a similar situation today. For 42 years, according to this narrative, millions of them have lived under brutal occupation. For 61 years, millions more have lived in squalid refugee camps, with no hope and no future. Only statehood can end these evils.

Under these circumstances, one would expect Palestinian leaders to jump at any offered state, however flawed, that would end the occupation and enable them to rehabilitate their refugees. Instead, they have repeatedly rejected statehood offers.

Moreover, they did not merely reject ridiculously inadequate offers like the one the Jews nevertheless accepted in 1947. They rejected offers equivalent to 95 and even 100 percent (the Clinton and Olmert plans, respectively) of the territory they ostensibly want, including most of east Jerusalem and even the Temple Mount. In short, they rejected everything they could possibly get under any formula leading to a Palestinian state alongside a Jewish one.

And that is the problem — as becomes clear upon examining why the Palestinians repeatedly rejected such offers. First, Palestinians refused to abandon their demand that the refugees be resettled not in the Palestinian state, but in the Jewish one — thereby effectively eradicating the latter. They also refused to acknowledge Israel’s right to exist as a Jewish state. They even refused to acknowledge any historical Jewish connection to this land, and especially to the Temple Mount — though they would have controlled the Mount in practice.

In short, what the Palestinians really want is not a Palestinian state alongside a Jewish one; if they did, they could have one at any time. What they want is a Palestinian state instead of the Jewish one. And until that changes, Israeli-Palestinian peace will remain a mirage.

In his post on Friday, Rick correctly identified the myth that has foiled every peace-making effort for decades: namely, that the Palestinians actually want a state.

To understand just how untenable this myth is, it’s worth comparing Palestinian behavior with that of the Jews in 1947. The UN Partition Plan proposed that year gave the Jewish state only 12 percent of the territory originally allotted to it under the 1922 League of Nations Mandate, and only 56 percent of what remained after Britain tore away 78 percent of the original territory to create Transjordan (today’s Jordan). Moreover, it excluded Jerusalem, the focus of Jewish national and religious longing throughout 2,000 years of exile. And its borders were completely indefensible, as the plan’s map shows.

Nevertheless, the pre-state Jewish leadership accepted it. Why? Because two years after the Holocaust — which not only proved the dangers of not having a state, but left hundreds of thousands of Jewish survivors as stateless refugees in desperate need of a home — this leadership believed any state, even one so badly flawed, was better than none. Only a state could resettle the survivors and allow them to rebuild their lives; only a state could make “never again” a reality rather than an empty slogan.

The Palestinians, according to their own universally accepted narrative, are in a similar situation today. For 42 years, according to this narrative, millions of them have lived under brutal occupation. For 61 years, millions more have lived in squalid refugee camps, with no hope and no future. Only statehood can end these evils.

Under these circumstances, one would expect Palestinian leaders to jump at any offered state, however flawed, that would end the occupation and enable them to rehabilitate their refugees. Instead, they have repeatedly rejected statehood offers.

Moreover, they did not merely reject ridiculously inadequate offers like the one the Jews nevertheless accepted in 1947. They rejected offers equivalent to 95 and even 100 percent (the Clinton and Olmert plans, respectively) of the territory they ostensibly want, including most of east Jerusalem and even the Temple Mount. In short, they rejected everything they could possibly get under any formula leading to a Palestinian state alongside a Jewish one.

And that is the problem — as becomes clear upon examining why the Palestinians repeatedly rejected such offers. First, Palestinians refused to abandon their demand that the refugees be resettled not in the Palestinian state, but in the Jewish one — thereby effectively eradicating the latter. They also refused to acknowledge Israel’s right to exist as a Jewish state. They even refused to acknowledge any historical Jewish connection to this land, and especially to the Temple Mount — though they would have controlled the Mount in practice.

In short, what the Palestinians really want is not a Palestinian state alongside a Jewish one; if they did, they could have one at any time. What they want is a Palestinian state instead of the Jewish one. And until that changes, Israeli-Palestinian peace will remain a mirage.

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