An Ibishblog reader asks: "The Jerusalem Post reported: ‘Israel argued this week that a major human rights treaty, the International Covenant on Civil and Political Rights, did not apply to its treatment of Palestinians in the West Bank and Gaza, because those areas were outside the country’s national boundaries.’ This is the first time I’ve heard Israel define the Occupied Territories as "outside" its national boundaries. Is this indeed the first time Israel has so clearly made this statement that defined the West Bank and Gaza outside its boundaries? Obviously the UN HRC has thrown this argument out, but putting human rights aside for a moment, how can Israel so clearly admit the Territories are outside its national boundaries yet still have an argument that justifies the legality of the settlements? I must be incorrect in my assessment of the weight of this statement as I seem to be the only one noticing it."
Well, the reader is certainly not the only one who noticed this. This is an unusual, although hardly unprecedented, admission from the Israelis, and it comes in a very interesting context. Israel’s position regarding the applicability of the fourth Geneva Convention (under which the settlements are clearly illegal) to the occupied territories has traditionally been that the territories are not occupied but “disputed,” because there was no valid sovereign before the 1967 war and other specious arguments, and that therefore the territories are not occupied in spite of a veritable mountain of UN Security Council resolutions beginning with 242 in 1967 holding that they are. If the territories are not occupied, then the Geneva Convention does not apply, Israel argues. However, it’s going to be very difficult to square that in the long run with an apparently contradictory argument about the inapplicability of the International Covenant on Civil and Political Rights based on the West Bank lying outside the borders of Israel.
Logic would dictate that even the Israelis would have to pick one perspective: either these areas are inside Israel’s boundaries and therefore the International Covenant on Civil and Political Rights applies (no doubt it applies anyway, I’m just proceeding on the “logic” they submitted to the UN) or they are not inside Israel’s boundaries and therefore the Geneva Convention applies. Indeed, the UN Security Council has ruled many times that the Geneva Convention does of course apply to the occupied territories, as, no doubt, does the Covenant. To argue that neither applies is typical of the Israeli approach to the occupied territories, placing it in a sui generis category completely outside the bounds of established international legality and normal dictates of political logic. As I’ve written elsewhere, what the Israelis essentially have established is a virtual Israel that exists wherever a settler happens to be and an unresolved, ambiguous occupation everywhere else in the occupied territories.
The bottom line is that there is an international arbiter of such questions that transforms them from matters of opinion into those of legal and political facts: the UN Security Council, which has made its view that these territories are under foreign military occupation very clear on countless occasions since 1967. If there is a dispute, it is a dispute between Israel and everybody else, beginning with the Security Council, not between Israel and the Palestinians or the Arabs. It’s a bit like an argument in which one person says the sky looks green and everybody else says the sky looks blue: that does not constitute a legitimate dispute, it constitutes one party trying to have things its own way in a manner nobody else accepts. This is particularly true when there is an established arbiter for such matters, as there is in this case, and the arbiter has made its position crystal clear. Now the Israelis have formally agreed that West Bank lies outside of its international boundaries, it should plainly be held to that. This argument should be remembered and repeated into the foreseeable future, in case they forget they made it.
Moreover, the Israeli position regarding its boundaries requires some serious interrogation, and it’s not an exaggeration to say that Israel may be the only member state of the United Nations without clear and declared boundaries (all the other candidates for such a category are much less dramatic examples, if they qualify at all). For example, Israel would certainly claim, on the basis of its virtual annexation of occupied East Jerusalem (what they actually did was extend Israeli civil law to all of what Israel defines as “municipal Jerusalem” but not a formal annexation as such), which was flatly and indeed angrily rejected by the UN Security Council in several resolutions at the time, that Jerusalem is within Israel’s international boundaries.
Indeed, Security Council Resolution 476 (June 30, 1980) reaffirmed, “the overriding necessity to end the prolonged occupation of Arab territories occupied by Israel since 1967, including Jerusalem.” So the Security Council felt that the occupation was prolonged a full 30 years ago, “only” 13 years after it began, and was thoughtful enough to reiterate that Israel must end its occupation of Jerusalem. This was needed because ever since the adoption of 242, Israelis have been arguing that the absence of the definite article “the” in the cause “withdrawal of Israeli armed forces from territories occupied in the recent conflict” somehow meant that Israel could keep hold of some of the occupied territories outside the context of an agreement that it can do so. This is always a very dubious argument because the Security Council opened 242 by “Emphasizing the inadmissibility of the acquisition of territory by war.” The idea that the missing definite article (not missing in the French text of the resolution, mind you) invalidates the principle of the inadmissibility of the acquisition of territory by war is admirable from the perspective of lawyering, but logical and legal nonsense. Either it is, as a rule, inadmissible or it may, in some cases, be admissible. But of course missing definite articles do not turn what is flatly stated to be an inadmissible process into an admissible one. Of course the territory most specifically in question in terms of Israel’s insistence that it unilaterally retain portions of what it conquered in 1967 is occupied East Jerusalem, which is what gives Resolution 476 its special significance: it makes very clear that the Security Council regards Jerusalem as part of the territories that are occupied and from which Israel must withdraw.
To return to the admission/claim made before the United Nations last week, as I say it’s certainly not unique but it is very rare. Perhaps an even more interesting version of this same highly unusual acknowledgment of reality came a few weeks ago when the Israeli military, which effectively and under Israeli regulations controls the occupied territories, ruled that army decisions regarding settlers and settlements need to be tested primarily against international law and not Israel’s basic law. This extremely unusual ruling is a deviation from the general Israeli practice that extends the protections of Israeli citizenship and basic law to the settlers. It was designed to give the military more leeway in dealing with settlers, especially the extremists in question who were being banned from most of the West Bank. The question, as I understand it, is still being adjudicated in the Israeli appellate system, as the settlers claim that the IDF must be subject to Israeli law when dealing with Israelis in the occupied territories (but not Palestinians). But the fact that the military would point international law rather than Israeli law as the guiding principle in dealing with settlers and settlements, even when it’s manifestly in an effort to bolster its own leverage with other Israelis, is another very significant gesture in a similar direction.
In the final analysis, whatever the Israeli position might be it has no choice but to negotiate the boundaries of a Palestinian state or continue the occupation indefinitely with a kind of grim consequences I keep writing about. There are presently three main recognized dangers to Israel in official and quasi-official Israeli discourse: Iran and its nuclear program, delegitimization, and the lack of peace with the Palestinians. It depends a great deal who you’re listening to which of the three of these problems is considered the most grave. PM Netanyahu and many other officials are obsessed with the question of Iran, regarding everything else as comparatively irrelevant. Many Israeli diplomats, analysts and others are even more concerned about what they call "delegitimization," by which they tend to mean an illogical potpourri of genuine efforts to deny and challenge the legitimacy of the Israeli state with an effort to replacing it with some other kind of state, legal challenges to Israel and Israeli officials that may or may not have factual and political merit depending on the case, and completely legitimate Palestinian critiques of and actions against abusive occupation policies and other, not only legitimate but necessary, critiques of Israeli excesses. Others, including DM Ehud Barak, are blunt in their view that neither of these two problems is as serious as the problems posed by the ongoing occupation and the lack of a peace agreement with the Palestinians, which they say has to be the utmost strategic priority for any Israeli government.
Obviously I think the third opinion plainly is most convincing even from a strictly Israeli perspective, if nothing else because the occupation provides Iran with its excuse to be critical of and confrontational with Israel and to support clients that are directly antagonistic to it, and because it is mainly the occupation that fuels almost everything regarded as “delegitimization.” Ironically, those most concerned with delegitimization tend to also be those supporting the very policies that lead to that very phenomenon, whether in any given case it deserves the term “delegitimization” or not. In other words, the occupation remains at the heart of all of the most severe strategic challenges Israel faces, and this is only likely to intensify insofar as it refuses to seriously discuss ending it on reasonable terms. Continuously reminding Israel of its now formally stated position that the West Bank lies outside of its borders will be doing it quite a significant favor.