Those who want to build, build, build settlements in the West Bank and jeopardize any chance of Palestinians having a reasonably contiguous viable state--those who are just fine with forcing Palestinians to live under martial law in the West Bank--those who see nothing immoral with throwing Palestinians out of their homes and off their land, are desperate to deny that Palestinians have any claim to the land.  I want to address two of their biggest talking points in this post.  Before I discuss these issues I want you to watch the following video exchange between Israel's Deputy Minister of Foreign Affairs Danny Ayalon and two Palestinian women, Lara Sawalha and Dana Dajani.  Though Ayalon might not personally endorse throwing Palestinians out of their homes, many of the arguments he makes are used by those who do.

Ayalon's two main claims are as follows:

1) There never was a state of Palestine and there never was a Palestinian people before the state of Israel. 

2) Israel captured the West Bank from Jordan in a defensive war in 1967.  However, the Jordanians never had the right to this land in the first place.  Not even Jordan's fellow Arab states recognized its claim to this land.  While asserting this point, Ayalon claimed that the Jewish homeland promised by Lord Balfour included both what is now called the West Bank AND Jordan and that the Israelis had already compromised by giving up Jordan.  The claim that the Jewish homeland set aside by Great Britain included Jordan  is a highly contentious one and if it were central to my argument here then I would take the time to debate it.  But it really is a side issue, so  those who are interested in pursuing this further are encouraged to read the promise Great Britain made to the Arabs in the McMahon-Hussein correspondence of 1915 and the Churchill White Paper's interpretation of the Balfour Declaration (1922).  Ayalon's main point, the point that is relevant here, is that Israel is not occupying the West Bank since you can only occupy another state or land taken from another state. The Palestinians never had a state on the West Bank, so technically-- legally-- Israel isn't an occupying power.

Though Ayalon didn't state it in these two videos, most supporters of an expansionist Israel use these claims to conclude that the Palestinians have no right to a state in the West Bank (or Gaza).  Israel may choose to give them a state in exchange for peace, but they have no right to one.  And Israel can build with impunity, especially on the roughly 62% of the West Bank that is in Area C.  (Theoretically, under the Oslo Accords, Israel gave up its right to build in Areas A and B, though it has allowed settlers to build in Area B in defiance of the Oslo Accords.) 

So, who is correct--Ayalon, or Sawalha and Dajani?  Ayalon's two main claims are accurate--there never was a Palestinian state and those living in the area of the Palestinian Mandate did not consider their main identity to be "Palestinian" before Israel was founded.  If you asked most of the non-Jews living in the Palestinian region in the first half of the twentieth century how they identified themselves they might have responded "I am an Arab", or "I am from this village" or "I am from this clan".  Very few thought of their primary identification as a "Palestinian".  In fact most Arabs in the region wanted the Palestinian region to be incorporated into a Greater Syria.  The Palestinian identity arose as a response to the pressures of Zionism, just as the identification with Zionism arose out of anti-Semitic pressures within Europe in the late 19th and early to mid 20th centuries.  And with the exception of the  glaringly questionable assertion that the Jewish Homeland originally included Jordan, Ayalon's claim that the West Bank was never internationally recognized as part of Jordan is also correct.

Dana Dajani claims that Israel was the aggressor in 1967 and quotes Menachem Begin to prove that this was a war of choice, not a war for Israeli survival.  Though this is true, it is an unbalanced half truth.  Immediate events leading up to the 1967 war puts Israeli actions in a different light.¹

• May 13, 1967: The Soviet Union informs Syria and Egypt that between 11 and 13 Israeli brigades were massing on the Syrian border.  This concerned Nasser because Egypt had signed a mutual defense pack with Syria.  An attack on Syria would be the same as an attack on Egypt.  It turns out the Soviets were wrong--Israel was not massing troops for an invasion.  However, the Soviet warning combined with other intelligence convinced the leaders of Egypt and Syria that an imminent Israeli attack was likely.
• May 16, 1967: Egypt declares a state of emergency and kicks the United Nations Emergency Force out of the Sinai, apparently in order to assist an Egyptian troop mobilization to meet an Israeli invasion.  This is a debated point, but Nasser may have considered this a DEFENSIVE maneuver.  He may have hoped this move would help avoid a war with Israel by deterring Israel from attacking Syria.
• May 23, 1967: Nasser closes the Strait of Tiran, thus choking Israel's naval lifeline.  This in itself would provide an adequate justification for an Israeli attack.
• According to Israeli and  Zionist sources Nasser and other Arab leaders made a series of speeches threatening Israel's existence. Those who distrust Zionist sources will question whether these speeches were actually made.  But the neutral MidEastWeb hosts a copy of Nasser's May 29 speech before the Egyptian National Assembly.  In that speech Nasser says:

Now, eleven years after 1956, we are restoring things to what they were in 1956 [when Egypt first closed the Strait of Tiran] . This is from the material aspect. In my opinion this material aspect is only a small part, whereas the spiritual aspect is the great side of the issue. The spiritual aspect involves the renaissance of the Arab nation, the revival of the Palestine question, and the restoration of confidence to every Arab and to every Palestinian. This is on the basis that if we were able to restore conditions to what they were before 1956, God will surely help and urge us to restore the situation to what it was in 1948. (Emphasis added)

• May 30, 1967: Egypt and Jordan signed a mutual defense pact.  This scared the crap out of Israeli leaders who feared they would have to fight a three-front war.

Egypt had legitimate reasons for fearing an Israeli attack.  But Israel had legitimate reasons to fear an attack as well.  Dana Dajani dismissed these fears by quoting "Prime Minister" Menachem Begin expressing  doubts that Egypt was about to attack Israel.  But, Begin was not Prime Minister at the time, despite Dajani's claim.  An alignment of left-wing Labor parties, led by Prime Minister Levi Eshkol controlled the government in 1967.  Begin was in an opposition party, but the cabinet invited him to join them in the decision making process on June 2. Though Begin had doubts Egypt was going to attack, others in the government, and especially the military, did fear an imminent attack.  And even if Egypt did not launch an immediate attack, they reasoned, Egypt would inevitably attack them when it got stronger.

There is no question, Ayalon's two main claims are more historically accurate than Sawalha's and Dajani's version of history.  However, his claims are worth less than a tick on a weasel's ass. They are irrelevant to the question of whether or not the Palestinians deserve a state.  And they are just a red herring covering up the fact that Israel is occupying the West Bank.  Though Ayalon is better at identifying individual trees, only Sawalha and Dajani realize that those trees are part of a greater forest.

Here are some basic truths:

1. The Palestinians deserve a state of their own--despite the fact that they were not a separate, organized people when Israel was established.
2. There is unlikely to ever be real peace in the region without a Palestinian state. 
3. A Palestinian state living peacefully with Israel is very much in the U.S.. national interest. 
4. Construction of settlements in the West Bank are making the establishment of a viable Palestinian state more and more difficult.  Many believe that we have already gone past the point of no return. 
5. Israel's imminent announcement of new settlement construction makes it appear like they are trying to kill the two-state solution and sabotage the peace process.
6. Israel's new settlements are a giant middle finger raised to the Palestinians, the U.S., and the rest of the world.
7. What is happening in the West Bank IS an occupation--even if it does not meet the technical legal definition of an occupation that Ayalon is so fond of.
8. Almost all of the rest of the world believes construction of settlements in the West Bank is illegal.  Even Israel's own legal council said immediately after the 1967 war that civilian settlements in the West Bank violate international law.

Let me elaborate on points 1, 7, and 8.

Why do the Palestinians deserve their own state?  To put it bluntly Sawalha spoke the most basic truth when she said "the old colonialist slogan of used by Zionists of 'a land without a people for a people without a land' only existed in the dreams of Zionists."  In fact, there WAS another people living in the land when the Zionists arrived, and whether they identified themselves primarily with their local village, or as Arabs, or as Greater Syrians, or as Muslims doesn't make a damn bit of difference.  They could have called themselves the Peanut Butter and Jelly Sandwich People and it still would not have mattered.  Israel committed a great historical  crime against those people during its founding and immediate aftermath in 1947-1948.  It is true that some of those people started a war by attacking Jews upon Israel's declaration of Independence.  But most did not. Some 750,000 Palestinian Arabs fled their homes during 1947-1948.  Some fled in panic because they heard stories of Jewish atrocities.  Some were practically forced out of their houses at gunpoint.  I would not call the forced expulsion of people from their homes during war time a true, great, gratuitous crime.  Sometimes the dictates of war require us to do things that are unacceptable in peace time.  Israel's true, great crime against the people of the region--be they called Lyddans, or Arabs, or Palestinians, or Peanut Butter and Jelly Sandwich People, was its refusal to allow the people to return to their homes after the war ended.  The Nakba did occur, and it is as central a truth to the Palestinian identity as the Holocaust is to the Jewish identity, and it is something that Israel needs to acknowledge.  And part of the price of that acknowledgement would be setting aside enough contiguous land in the West Bank for the Palestinians to have a state.

Israeli journalist and author of "My Promised Land", Ari Shavit, was recently interviewed by National Public Radio's Steve Inskeep.  I encourage you to listen to the whole interview.  Here are the particularly relevant passages.

 

There was this flaw from the very beginning, and the flaw was that my great grandfather, like other Zionists, did not really see the other. They did not really see that this land, this is the land of our forefathers, our ancient homeland, is occupied, it taken by another people. There was no Palestine national entity. There was no political entity.

INSKEEP: It was part of the Ottoman Empire.

SHAVIT: It was part of the Ottoman - and the entire region was, like, chaotic and tribal. So one has to remember, they did not conquer a well-established state, but those other people were there. And my great grandfather did not see them. Now, that's the source of the tragedy, because on the one hand, you have this amazing triumph that is a result of the brilliant insight. On the other hand, you have this ongoing tragedy of a 100-year war - more than that - that is the result of that basic flaw, that we did not see the Palestinians and the Palestinians would not see us, and...

INSKEEP: And you mean that in an almost literal sense - people would look right at Arab villages and ride past them.

SHAVIT: And in many ways. So I think, one of my hopes is that Palestinians would read this book and be able to understand where we come from, understand our narrative. And while we Israelis will really recognize our other and see that the Palestinians are there in a deep way, I think that that is the key - to recognize the past and move on and to see one another in a deep, human way. . . .

INSKEEP: So what does Israel owe the Palestinians then?

SHAVIT: A state. I think that the two-state solution is necessary for political reasons, first of all, but also for moral reasons. I think that it's incomprehensible that the Palestinians will not have a state of their own. But that state should live in peace and it should not try to replace Israel. And regretfully, there are still many Palestinians who have a vision of Palestine that actually in this way or another replaces Israel. I think that after having such a long war, you have malaise on both sides. Our malaise is occupation. We have to end occupation. If we can do it through peace, that will be great. If not so, we have to do it unilaterally in a cautious, gradual way, because we cannot be occupying them. And we owe it to them - they should have a state. What the Palestinians have to do is to realize that their Palestine will live next to Israel and we cannot endanger Israel. Both patients have to be cured.

Is The West Bank Occupied Territory?  Are the Settlements Legal?

You will notice that Shavit, an ISRAELI journalist calls what is happening in the West Bank an occupation. So is he right in calling it an occupation? Or is Ayalon right in insisting that it isn't an occupation because it doesn't meet the legal definition of an occupation?  While the territories may not meet the very technical legal definition for being occupied set out by Ayalon, they still are occupied territories.  The territories simply don't pass the "Duck Test".  If it looks like a duck and it walks like a duck and it quacks like a duck, it's a duck.  You may pass a law stating it's an aardvark, but no matter what its legal status is, it is still a duck.

Palestinians living in Area C of the West Bank  have no political rights.  They live under martial law.  They can be thrown out of their houses should Israel see a military need to take their land.  They have fewer legal protections than Jews because they are tried in military courts while Jews are tried in civilian courts.  It may not meet the LEGAL definition of being an occupation that Ayalon favors, but it has the same punch-in-the-face feeling that any occupation would have.

David Kretzmer, Professor Emeritus of International Law at the Hebrew University of Jerusalem and Professor of Law at Sapir Academic College, wrote a scholarly paper examining "The Law of Belligerent Occupation In The Supreme Court of Israel." (Downloadable PDF)  Lawyers for the IDF initially wanted to apply the provisions of the Fourth Geneva Convention to the territories, thus implying that they were subject to the law of belligerent occupation.  However, they received push back from civilian lawyers who said "Not so fast!  The status of the territories are unclear."   Though Israel's Supreme Court never explicitly ruled that Israel's territories were belligerently occupied, the Court's behavior stops just short of doing so.  Kretzmer summarizes the situation thusly:

In a military order promulgated by the military commanders of the various fronts when the IDF forces entered the OT [Occupied Territories] in 1967, military tribunals were established to try local residents accused of security offences. That military order stated expressly that the military courts were to apply the provisions of the Fourth Geneva Convention, thus reflecting the view of army lawyers that all the territories were subject to the law of belligerent occupation. However, soon after the 1967 War ended, voices were heard both in political quarters and among a number of academic lawyers in Israel that the West Bank and the Gaza Strip, both of which had been part of British Mandatory Palestine, should not be regarded as occupied territories  Under the influence of these voices, a few months after the war ended the military commanders made an amendment to the military order, deleting the provision that mentioned the Fourth Geneva Convention. The Government of Israel adopted the position that the status of the West Bank and Gaza was unclear and that in all events it was questionable whether the Fourth Geneva Convention applied there. At the same time the government declared that the IDF would respect the humanitarian provisions of the Convention

 

In the first petitions challenging acts of the military authorities in the OT, the petitioners based their arguments on the norms of belligerent occupation, as expressed in the Hague Regulations and the Fourth Geneva Convention. When the Court required them to reply to these petitions, the authorities were forced to take a position on whether these norms were indeed applicable. They initially attempted to hedge their bets by arguing that, even though it was not clear whether the territories were indeed occupied, in practice the military authorities complied with the norms of belligerent occupation and were therefore prepared for their actions to be assessed under these norms.13 After a short time this caveat fell away and, alongside the rules of administrative law that apply to actions of all branches of the Israeli executive, the framework of belligerent occupation became the standard legal regime for assessing actions of the authorities in the OT.. . .

In conclusion, without ever ruling positively that the Fourth Geneva  Convention applies in the OT or that all its provisions are part of customary law, relating to provisions of Fourth Geneva Convention has become part of the Court’s standard practice. . . .

Israel is one of the few Occupying Powers that have formally recognized application of the norms of belligerent occupation in the territory that it occupies. Despite this recognition, politics have often had more influence on the ground than the formal legal framework of occupation law. Hence, many of the policies and actions of the different governments that have been in power since 1967 have not been compatible with norms of the international law of belligerent occupation. The most blatant of these policies has been the establishment of Israeli settlements in the OT. It has been the consistent position of the international community that establishment of such settlements by the Government of Israel is incompatible with Israel’s obligation under Article 49, paragraph 6 of the Fourth Geneva Convention not to transfer part of its civilian population into the OT. This position was confirmed by the ICJ in its Advisory Opinion on Legal Consequences of the Construction of a Wall.

In other words, though Israel's Supreme Court has refused to rule that it's a duck, it is saying that the West Bank walks, looks, and quacks like a duck.

Let's explore this issue further since the Israeli Supreme Court has refused to give us a definitive ruling.  The question ultimately will boil down to this.  Does the West Bank fall under the Fourth Geneva Convention?  And if so, how does Article 49, paragraph 6 apply? I will present links to articles by analysts with conflicting views.  But first, you might want to read Article 49 yourself.  Pay attention to the first and last paragraphs since they will be mentioned by the analysts.  The second analyst will also refer to official commentaries about Article 49.  They can be found here:

ARTICLE 49 [ Link ]

Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive.

Nevertheless, the Occupying Power may undertake total or partial evacuation of a given area if the security of the population or imperative military reasons so demand. Such evacuations may not involve the displacement of protected persons outside the bounds of the occupied territory except when for material reasons it is impossible to avoid such displacement. Persons thus evacuated shall be transferred back to their homes as soon as hostilities in the area in question have ceased.

The Occupying Power undertaking such transfers or evacuations shall ensure, to the greatest practicable extent, that proper accommodation is provided to receive the protected persons, that the removals are effected in satisfactory conditions of hygiene, health, safety and nutrition, and that members of the same family are not separated.

The Protecting Power shall be informed of any transfers and evacuations as soon as they have taken place.

The Occupying Power shall not detain protected persons in an area particularly exposed to the dangers of war unless the security of the population or imperative military reasons so demand.

The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.

And now, without further ado, here is Israel's Agricultural Minister, Yair Shamir,  arguing that the West Bank should not be considered as occupied territory and the settlements are not illegal under international law.  And here is Daniel Steiman, who has an MA from Georgetown University's Department of Government,  arguing that they are illegal.

Now, I know some of you may be scoffing--An agricultural minister?  A guy with an MA? I want to see what a real expert has to say.  Well, I linked to these two experts because I thought they each made representative arguments for their point of view well and concisely.  But if you want a real expert, how about Theodor Meron, the legal council to Israel's Foreign Ministry in 1967?  Meron was asked to prepare an opinion on the legality of settlements in the "administered territories".  He answered: 

My conclusion is that civilian settlement in the administered territories contravenes explicit provisions of the Fourth Geneva Convention"

See Gershom Gorenberg's New York Times Op Ed piece for further background on Meron's opinion.  Then Download this PDF to see the opinion itself.  It's very short and well worth the read.

Finally, I hope Danny Ayalon will take the time to watch Israeli film director Dror Moreh's movie, The Gatekeepers.   Moreh interviews interviews six former heads of Shin Bet in this movie, and none of them are very happy with the way Israel is conducting itself in the West Bank.  If Mr. Ayalon skips to 17:40 - 17:59 of the movie, he will see Avraham Shalom, leader of Shin Bet from 1980 - 1986 say  " All in all, we [Shin Bet] gained control over the war on terror . . . but it didn't solve the problem of the Occupation."  Skip ahead to 1:34:51 - 1:36:27 of the film and you will see Shalom elaborate:

The future is bleak.  It's dark, the future.  Where does it lead?  To a change in the people's character because if you put most of our young people in the army, they'll see a paradox.  They'll see it strives to be a people's army, like the Nahal unit, involved in building up the country.  On the other hand, it's a brutal occupation force, similar to the Germans in World War II.  Similar, not identical.  And I'm not talking about their behavior toward the Jews.  That was exceptional, with its own particular characteristics.  I mean how they acted to the Poles, the Belgians, the Dutch. . . To all of them... The Czechs.  It's a very negative trait that we acquired, to be... I'm afraid to say it, so I won't.  We've become cruel, to ourselves as well, but mainly to the occupied population, using the excuse of the war against terror. 

And pay attention to what Yuval Diskin, the head of Shin Bet from 2005 - 2011 had to say in response to Moreh's questioning (1:30:26 - 1:31:49 ):

Dror Moreh: I want to read something that Professor Leibowitz, a critic of the Occupation, wrote a year after the Six Day War, in 1968.    "A state ruling over a hostile population of one million foreigners will necessarily become a Shin Bet state, with all that this implies for education, freedom of speech and thought and democracy.  The corruption found in every colonial regime will affix itself to the State of Israel.  The administration will have to suppress an Arab uprising on one hand and acquire Quislings or Arab traitors, on the other."  What do you think about this prediction, given where Israel is today?"

 

Yuval Diskin: I agree with every word he wrote. 

DM: Explain.

YD: There's nothing to explain.  Every word he said is etched in stone. 

DM: Is that what Israeli society is like today?

YD: I think it's an accurate depiction of the reality that emerged from 1968 until today.  I wouldn't say that it became a Shin Bet state, but no doubt, our current situation with the Palestinians undoubtedly created a reality that is very similar to what Leibowitz wrote.

So who should we believe has a more accurate description of the West Bank's status? Danny Ayalon, part of whose job requires him to be a public relations man and put a happy face on Israeli policy, or the hard-headed former leaders of Shin Bet, who have had to deal with the gritty realities on the ground?

If you are reading this Mr. Ayalon, I have one piece of advice for you.  Refer to it as an "occupation".  If you want to make the case that maintaining the occupation is  essential for Israeli security, then make the case that the occupation is essential to Israeli security.  But for heavens sake, use the term "occupation".  Your verbal gymnastics are fooling fewer and fewer people.  The world might not buy your argument that the occupation is necessary, but at least they won't feel like their intelligence is being insulted.  You only end up looking like a used car salesman when you insist that their is no occupation.

Update Jan. 2, 2014: Though the Palestinians never had an independent nation, they did have a government of sorts under the British Mandate.  This article from The Jerusalem Fund includes a link to a search of New York Times articles referring to the Palestinian Government under the British Mandate.  Click here to get to the search, and click on one of the links that pop up.  Then click on "View Full Article" to download a PDF containing an excerpt from a New York Times article referring to the Palestinian Government.  Here's a highlight from the Jerusalem Fund article.

Calling cities in Palestine "Palestinian cities" wasn't a problem for the New York Times 1927 or in 1929 for example. Nor was it odd for the paper that today says those cities were not part of a "Palestinian political entity" to refer regularly to a "Palestinian Government."

Update April 1, 2014: Ariel Sharon, considered by many to be the "father of the settlement movement", was unequivocal when he called what was happening in the West Bank an occupation.

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 . . . It can't continue endlessly," Sharon said. "Do you want to stay forever in Jenin, in Nablus, in Ramallah, in Bethlehem? I don't think that's right.

Update: 9/5/2016:  Those who argue that there is no occupation really need to take it up with the former head of the Israel Defense Forces’ Central Command, Maj. Gen. (Res.) Gadi Shamni.  According to the Times of Israel, Shamni said:

We have elevated the occupation to an art form. We are the world champions of occupation. I was GOC Central Command, a general [in Hebrew, also “champion”] of the occupation. And I’m asking, is this what we want to be? Every step we take should stem from one strategic goal — separation from the Palestinians.

1) The summary of events leading up to the 1967 war is based on Mark Tessler's A History of the Israeli-Palestinian Conflict, pp. 367 - 397)