More on Levy
Jeffrey Goldberg responded to James Taranto's comparison of Judea and Samaria to Samoa. Goldberg writes:
Well, okay, let me explain: I suppose that Israel could indeed have unincorporated territories, like the U.S. does, if the people who lived in the those unincorporated territories wanted to live as "resident aliens" of Israel. But they don't. This is one difference between the West Bank and Samoa. The people of Samoa seem content to be citizens of a territory of the United States. At the very least, they're not in perpetual revolt. If they were in perpetual revolt, or even sporadic revolt, does James Taranto really believe that the President, Congress and people of the United States would attempt to force Samoa, through arms, to remain a territory of the U.S.? Or we would we let the Samoans have their independence, or whatever it is they said they wanted? I imagine the American people would choose the latter option.
If the Palestinians of the West Bank choose, through a free and fair referendum, to become non-voting resident aliens of the State of Israel, well, who are we to tell them they're wrong? But so far there's no indication that Palestinians would freely choose such an arrangement.
In Goldberg's hypothetical, would the Samoans have chosen to object to American sovereignty by supporting a terrorist organization dedicated to America's existence? Would that terrorist organization have violated every single agreement it made with the United States? If the previous conditions existed would Goldberg still claims that the mechanism through which the Samoans were seeking independence from the United States was legitimate?
The problem with using the term "occupation," is that it prejudges Israel's status. If Israel occupies Judea and Samaria then it is in violation of international law and potentially illegitimate until that occupation is over. Goldberg and others like him insist that the occupation can't be over until the Palestinians are satisfied with Israeli concessions. But why should that be?
One of the leading experts in international law, Judge Stephen Schwebel wrote:
Secretary Rogers accordingly inferred that, in the absence of such peace and agreement, withdrawal of Israeli forces from Egyptian territory would not be required. That is to say, he appeared to uphold the legality of continued Israeli occupation of Arab territory pending "the establishment of a state of peace between the parties instead of the state of belligerency." In this Secretary Rogers is on sound ground. That ground may well be based on appreciation of the fact that Israel's action in 1967 was defensive, and on the theory that, since the danger in response to which defensive action was taken remains, occupation – though not annexation – is justified, pending a peace settlement.
In other words it is peace that must precede an end to occupation, not the other way around. That would mean that it isn't only Palestinian demands that must be satisfied, but Israeli requirements too. (Given that some of these are mutually exclusive, that means that each side must give up something to get a deal done. The current paradigm only requires Israel to make concessions.) "Occupation" has become leverage for requiring Israeli action even in the absence of any Palestinian action. This has been one of the most perverse aspects of the last nineteen years of the peace process and it has been counterproductive.
(Another problem with the term "occupation" is that it only addresses Palestinian losses. If there's a principle of "the inadmissibility of the acquisition of territory by war," why doesn't that apply to Hebron or the Etzion bloc; areas from which the Jews were forcibly evicted?)
Even if one accepts Levy's ruling, that doesn't mean that Israel can't cede territory for peace. It doesn't suggest that Israel should reverse any of its concessions (though those concessions have brought Israel new threats, not the security we were assured). It just means that Israel should not be the only party that is obligated to make the necessary concessions for peace.
The other day the New York Times condemned the ruling made by Judge Levy and his committee. Alex Margolin observed:
Maybe the people who write editorials at the New York Times don’t follow the news.
That’s the only way to explain how, just one day after Mahmoud Abbas rejected Israel’s offer to release 125 Palestinian prisoners in exchange for nothing more than a new round of peace talks, the Times is back to blaming Israel for the current impasse.
Margolin is being generous here. The editors of the New York Times aren't ignorant; they're arguments are made in bad faith. Several editorials over the past year explicitly place most of the blame on Netanyahu for the lack of a peace agreement, ignoring any evidence to the contrary. The attacks of the editors of the New York Times are willful.
Two final points for today.
Goldberg links to an opinion piece from Bloomberg:
“Occupied” is the verb used by the UN, the U.S. and other third parties. Levy and his two fellow panelists don’t see it that way. They argue that Israel is not an occupying force in the West Bank because Jordan’s previous control was never legitimized. Yet that’s a rare view even in Israel. Many officials there dislike the term, but international law regarding occupation has been the basis of Israeli jurisprudence in the West Bank for 45 years. In the first military orders issued after taking the West Bank, Israel cited the Fourth
Geneva Convention, which deals with the responsibilities of an occupying power.
Note the use of the word "rare."
Moshe Dann in his analysis of Levy's ruling begins:
For more than four decades Israel’s acquisition of Judea, Samaria and Gaza in the 1967 Six Day War has been portrayed by those who oppose the right of Jews to settle these areas as “illegal” and “immoral.” Some include eastern Jerusalem and the Golan as well.
These prominent politicians, jurists, former and serving military officers, literati and media personalities represent a small but powerful elite that has shaped government policy.
The reason the editors at Bloomberg News (and Jeffrey Goldberg) find the ruling "rare" is because they are much more familiar those whom Dann identifies as a "small but powerful elite." But how does the average Israeli feel? I suspect that (especially after Oslo) most Israelis don't believe that Judea and Samaria are "occupied." I suspect that the average Israeli sees the continued Egyptian animosity towards Israel despite the sacrifice of the Sinai and the buildup of Hamas since disengagement from Gaza , and wonders if future concessions will bring peace or greater threats.
This is why Netanyahu and not Tzippi Livni and not Yossi Beilin is currently Prime Minister. It's easy, of course, to dismiss Netanyahu as a right winger whose views need not be taken seriously. It's easy but that doesn't make it honest. It also doesn't make such labeling constructive.
Maybe if the editors of the New York Times and Jeffrey Goldberg were saying that Israel was making peace because it wanted to and not because it had to, they would be more generous in their evaluation of Israel's predicament. Maybe they'd also be forced to acknowledge that it isn't mostly Israel's fault that there isn't yet Arab-Israeli peace. And maybe if Israelis didn't feel that that peace required one sided concessions with or reward or even appreciation, they'd be convinced of the good faith of those promoting the "peace process."