Israel, Occupation and International Law
by Dan Juster, Director, Tikkun Ministries International

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We are witnessing the failure of the most recent round of peace talks between Israel and the Palestinians. The main reason is that the Palestinians are making demands of Israel that she simply cannot accommodate. For one, the Palestinian negotiators are still claiming that Israel must withdraw all Jews from the "occupied" West Bank, including established towns and cities of 10,000 to 50,000 people. Not only is it practically impossible to dismantle these towns, but their municipal areas constitute only 3% of West Bank territory. Israel cannot accept an agreement that would create such hardship, and of course the majority of Israeli citizens would never approve it. Furthermore, it is an historical fact that Jews have lived in parts of the West Bank and East Jerusalem, well before Israel became a state.

The Palestinians demand Jewish withdrawal from all of what are called the "East Jerusalem" neighborhoods, including areas now housing hundreds of thousands, like Gilo, Pisgat Zev and Ramot. The Jewish Quarter in the Old City, including the Western Wall, was a Jewish neighborhood before independence and for hundreds of years before that. Hebrew University and the Mt. Scopus - Hadassah Hospital area, conquered by Jordan in the 1948 War, are also on the list to be "given back" to the Palestinians. Many of those who credit Palestinian demands have never even visited these sites and don't realize that the demands are not feasible. I believe that this is well understood by the Palestinian Authority, and that they only half-heartedly engage in peace talks for the sake of gaining political benefits while not truly reconciling with the fact of Israel's permanent presence here.

Another serious concern is national security. Israel cannot give up security control on the hills overlooking Jewish population centers and Ben Gurion International Airport, which are close to, but not in, the West Bank. Nor can it lose jurisdiction over the border with Jordan and again experience what happened in the Gaza withdrawal when thousands of missiles were fired at Israeli civilian areas from 2005- 2008. Finally, there is the very real demographic threat of losing a Jewish majority by inviting the return of Palestinian descendants of those who fled Israel in the 1948 War of Independence. In fact, the main reason Israel had international approval to become a state was so there would be a sovereign Jewish (majority) country to which Jews could flee from anti-Semitism. This happened immediately following World War II as a result of short lived sympathy generated by the Holocaust in the United Nations Assembly.

Unilateral Withdrawal

In my opinion that there is a good chance that we will see a unilateral withdrawal from the Palestinian areas of the West Bank, but with much better security arrangements than in the Gaza withdrawal. Israel will keep and protect the major settlement blocks and East Jerusalem. She will maintain security on the high hills overlooking Israeli populations and in the Jordan valley. Israel can do no less since Hamas could come to power, and Jordan could fall to the Islamists. Jordan is actually a Palestinian state already! So the issue will be a border dispute, not occupying another population. The reason for Israeli withdrawal would be to avoid a one state solution and the problem of making the Palestinians in the West Bank citizens with all of the demographic problems this would entail. The numbers would eventually make Israel cease to be a Jewish state.

That there will not be a peace agreement is almost certain. I give 50-50 odds to the withdrawal scenario and believe that it could happen within the next five to ten years.

The Claim of Violating International Law

In the midst of all this, the world continues to condemn Israel for violating international law. Most Christian readers don't understand this claim. I have written on this before, but now have new information that you will find very enlightening. Most who make this claim, point to the Fourth Geneva Convention from 1949. There are many interesting articles in this treaty. For one thing, it declared recognized national borders as sacrosanct. In response to the Holocaust, it forbade population transfers. It also required that states which fight a war, even in defense, must eventually return to the previous borders. The idea of border adjustments to punish the aggressor, was rejected, though historically that has been very much part of the idea of a just settlement. One can note that after World War II, Poland's territory expanded and Germany's shrunk. In addition, the Geneva Convention rejected major population transfers into or out of the occupied territory of another country.

Israel did not Invade another Country

The main problem with applying the Geneva articles in this case is that Israel did not actually invade another country with recognized borders in the Six Day War of 1967. After the war broke out, Jordan attacked Israel from the West Bank. In response, Israel entered the disputed territories (the West Bank) occupied at that time by Jordan. Jordan's sovereignty over those territories was not recognized (but was also not a source of international anger). Jordan had invaded territories in which there were Jewish residents prior to the 1948 War of Independence.

After 1967, Israel decided to build towns in uninhabited lands that were purchased or had been state lands in the Turkish Empire and later in the British Mandate period. Israel did not transfer the Palestinians out of their areas of residence, but simply built new areas for Israelis to live in on the West Bank. So there is no violation of the Fourth Geneva Convention. A study by Israeli legal experts recently made this point very clear.

An Incorrect Interpretation of International Law

So why is this claim made and repeated by most of the countries in the world? First of all, the U.N. decided to interpret the partition plan of 1947 in such a way that after 1967, the West Bank and Gaza would be treated as a nation for legal purposes. This was in spite of the fact that the Arabs there rejected the plan and there was never a recognized Palestinian nation. In addition, most do not realize that the foundation of the claim of illegality is based on the interpretation of the International Committee of the Red Cross (ICRC), the guardian of the Fourth Geneva Convention. The ICRC decided arbitrarily and unilaterally that Article 49 of the Convention applied to what they called the "Occupied Palestinian Territory", which included Gaza and Judea, Samaria, and Eastern Jerusalem (all called the West Bank). This important information is taken from THe Jerusalem Post (Nov. 15) in an article by Moshe Daan, entitled "Why Blame John Kerry?" Article 49 only applies to territories that belong to a country, and which were occupied in a conflict. However, Israel did not conquer territory that legitimately belonged to another country.

Here is an amazing fact. We do not know who in the ICRC made this decision and on what basis. The archives of the ICRC are closed and kept secret! Amazing also is the fact that the ICRC did not apply this interpretation to terrible injustices in occupation like Cyprus (with Turkey), Kashmir (with India), Tibet (with China), and part of Georgia (with Russia). The list goes on and on. These were recognized countries. To paraphrase Shakespeare's Hamlet, "Something is rotten in the ICRC." Could it be Anti-Semitism? So Israel has to live with the fact that international law is interpreted not according to what was written in the Fourth Geneva Convention, but the ICRC's misapplication of that Convention.

In spite of these many challenges, Israel will chart her own course according to what is best for her survival. She will continue to be opposed by almost all nations, I believe, until that great day of the coming of Messiah.

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