Yes, there is no occupation: Legally not morally

Yes, there is no occupation: Legally and historically not morally or practically

By Gil Troy
The Jerusalem Post
July 10, 2012

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.