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A Desperate Miscalculation

Formerly, calls for a One-State Solution to the Palestinian-Israeli conflict were faintly disguised attempts to extinguish the only Jewish state in the world. More recently, the idea of a One-State Solution has found sympathy in some Jewish-Israeli circles with the calls for the annexation of the West Bank – either completely or in part.

Naturally, this raises questions of legality, morality and practicality. These have scarcely been explored. However, in his essay Resolution 242 Revisited (2015), Eugene Kontorovich drew attention to the question of whether there is a legal right to annex territory conquered and occupied in a legal war (assuming that the West Bank can be described as occupied). His discussion of the International Law Commission draft and unratified codes from 1949 and 1954, which seem to tilt in this direction, is interesting but inconclusive. At best, it points to a definite-maybe or possible should-be. More legal work is apparently required.

However, after such a lengthy passage of time is there any good reason to expect an international consensus decisively favorable to annexation – especially with regard to such a contentious dispute? Additionally, this would cut-across the more recently developed view that sovereignty does not reside with this or that state, government or ruler, but with the people. As a result, the Palestinians are said to have both legal and moral rights to national self-determination which annexation would plainly prevent.

In other words, from where we are now and from what we now know, to pursue a legal case for annexation is uncertain and likely to be inconclusive at best. It might be said that even if a favorable consensus could be reached, the issue of double standards in the application of international law to Israel also has to be overcome. For example, many believe, or pretend to believe, that Israel is legally required to withdraw or should withdraw unilaterally from the West Bank.

In reality, there is scarcely any legal doubt that there is no such requirement in international law or UNSCR 242. Otherwise, 242 could have said so easily and clearly. Instead of a unilateral Israeli withdrawal, the resolution called for a package of measures. These included:

  • Israeli withdrawal from territories occupied in the 6-Day War;
  • termination of all claims or states of belligerency;
  • respect for and acknowledgement of the sovereignty, territorial integrity and political independence of every state in the area;
  • the right of states to live in peace within secure and recognized boundaries free from threats or acts of force;

As is well known, the resolution deliberately did not specify withdrawal from the territories or all territories (or all the territories). Nor did it specify which territories it considered occupied or the location of borders. Instead, it proposed that a Special Representative from the UN be appointed to:

establish and maintain contacts with the States concerned in order to promote agreement and assist efforts to achieve a peaceful and accepted settlement in accordance with the provisions and principles in this resolution.

This package means that the reasons why resolution 242 did not insist on unilateral Israeli withdrawals are not difficult to understand.

Firstly, the territory was captured by Israel in war of legal self-defense rather than aggression, which is illegal. Secondly, 242 could hardly have advocated the return of the West Bank to Jordan or Gaza to Egypt because in the war of 1948/9 they had themselves occupied these territories, over which they had no sovereign rights. Therefore, the famous preamble to 242, stating the inadmissibility of the acquisition of territory by force would naturally apply to those seizures of territory. Thirdly, to resolve this peacefully, the determination of what should be secure and recognized boundaries was to be negotiated and agreed with the parties.

Unfortunately, the Arab League had already decided on a policy completely at odds with this perspective. This was the famous Khartoum Declaration of 1967, which determined as its main principles:

no peace with Israel, no recognition of Israel, no negotiations with it.

The main objection to annexation

The unilateral alteration of the status of the West Bank from what is widely considered an occupation to that of annexation is bound to be seen as provocative. But the main objection to it is neither this nor the absence of a clear legal permit. The real objection is that it is not and should not be the issue under consideration at all. This is because it concedes the main argument of the Palestinians and denies the main argument of Israel. How so?

To use a neutral example, Britain cannot be said to occupy the county of Yorkshire, at least not in the sense of the Hague Regulations, which concern relations between sovereign states rather than within a state. In other words, a state cannot occupy its own territory. As a result, the UK can neither occupy nor annex Yorkshire. That is, occupation refers to territory not legally under the sovereignty of the occupying power, whereas annexation refers to the appropriation of sovereignty by one state power from another.

Therefore, agreement by Israel that it occupied or annexed the West Bank would effectively accept that someone else was, or perhaps should be, the legitimate sovereign from which the territory was taken – albeit in legal self-defense. Therefore, even if a legal case for annexation could be mustered, exercising it would have the effect of ruining Israel’s own legal claim to sovereignty based on the Palestinian Mandate of the League of Nations. Yet this is a very strong claim (which is presumably why the ICJ Advisory Opinion, the UNGA, Noam Lubell’s legal report to the BBC enquiry in 2006, and others, ignore it) and should be promoted ad nauseam by Israel.

In this view, Israel cannot be said to occupy the West Bank in the standard international legal meaning of term. Instead, its capture in 1967 enabled Israel at last to exercise its sovereignty that the Jordanian occupation had prevented. Therefore, accusations of Israeli occupation are unwarranted or at least disputed on strong legal grounds. To use another neutral example, in a similar way it would be unwarranted to accuse the Ukraine of occupation if it were able to recapture the Crimea from Russia. Therefore, for Israel to abandon this position would be a serious legal and political error and a marvelous gift to the Palestinian narrative.

In contrast to Israel’s legal claim, the Palestinian claim is based on their view that Jews are a religious group only with no national rights and the Zionist occupation denies the Palestinian right of national self-determination. In practical terms, their population weight enhances the power of their claim.

In short, instead of promoting Israel’s legal rights to make them common knowledge at the center of international discourse, annexation would throw them away. And for what gain? It could hardly be said to solve the perennial practical problem of what to do about the Palestinian population, which overwhelmingly hates Israel, opposes its existence and denies it the same rights of self-determination they claim for themselves.

Annexation worsens the situation

In fact, far from solving this matter, annexation promises to make it worse. This is because without consent from the Palestinians, annexation would have to be imposed on them. Apart from the legal considerations above, this could well be so provocative, to Palestinians and internationally, that only the necessity of a dire emergency could provide adequate justification.

Without such an emergency, certain advocates of annexation (see, The Israel Solution by Caroline Glick) propose that West Bank Palestinians should be offered Israeli citizenship. At least in part, this is presumably an effort to sell annexation by a measure intended to mute international and Palestinian hostility. But this would have far-reaching and dangerous consequences.

Aware of this concern, Caroline Glick has three approaches to dampen anxiety. The first is to assure us that provision of citizenship to West Bankers would still leave Jews as a large majority, which she estimates at 66%. Her reasoning is that the population figures for the West Bank claimed by the Palestinian Central Bureau of Statistics are hugely inflated (relying on deceits such as an inexact base-count, erroneous projections, double-counting and including people who are not there).

As there is no current way to be certain of West Bank population figures, it would be wise to anticipate the possibility of greater numbers than she allows. Within Israel there are currently 1,771,000 Arab citizens (May 2016) or almost 21% of the total population. If assimilating West Bankers into Israel were to double the Arab population, as seems entirely possible, then no matter how it is smoothed-over, this is a stunning increase. For sure, at around 40% (or more), this would provide great social weight and political power to enemies of Israel.

Therefore, her second method of dampening anxiety is to assume that large numbers are not likely to apply for citizenship. She bases this claim on the precedents set by the Arab population of Jerusalem and the Druze population of the Golan Heights (p238). This is a ludicrously cavalier linkage to quite different circumstances and possibilities. Currently, many West Bankers hold Jordanian passports. But without Jordanian ID numbers, these provide travel but not citizenship rights. Further, unless the West Bank Palestinians have somewhere else to go strategically, sensible politics must assume that they would jump at the unbelievable opportunities annexation would present to bring disruption to Israel.

However, in the same paragraph as the above quotation she vaguely acknowledges that a reduction of the Jewish majority to her figure of 66% would undoubtedly have unforeseeable consequences on Israeli politics. In fact, many of the consequences are easily foreseeable. This leads to her third method of dampening anxiety – she declines to foresee them.

Unforeseeable consequences foreseen

Firstly, in a single political structure, the potential for around 40% Arab representation in the Knesset should not be dismissed. With such a large representation, it would be impossible to prevent Arab membership of all parliamentary committees and some may well have an Arab majority or leadership. One likely repercussion would be that Israel’s policies towards Arab immigration would be very difficult to maintain. The fictitious Palestinian right of return of the fictitious refugees would thus become a practical and legitimate matter for the Arab parliamentary agenda and extra-Parliamentary action.

Secondly, there is a strong possibility that an enlarged Arab parliamentary bloc would become the official opposition. If so, this would position it to receive security briefings. Even worse, the Arab group might become the biggest single party in the Knesset with the right to attempt to form a coalition government.

Thirdly, Caroline Glick says that the assertion of Israeli sovereignty to Judea and Samaria would facilitate the break up of terror cells as they form (p 241). Yet full citizenship would also provide deadly enemies with the freedom to travel, work and live throughout Israel. This expansion of opportunities for the formation of such terror cells throughout Israel, eliminating the effectiveness of the Anti-Terrorist Barrier and turning all Israel into the West Bank, is ignored.

Fourthly, for purposes of practical governance, the incorporation of such a large community with significant differences of religion, language, social-structure, customs, ways of doing things, different loyalties and loyalty structures, and so on, would be a constant source of conflict. Additionally, the economic impact for employment and welfare provision for the unemployed and often unemployable will have huge negative consequences.

Unless it can be shown that annexation can banish or minimize Palestinian opposition to the existence of Israel as the nation-state of Jews, it must be assumed that the incompatibility of national aims will persist. Therefore, the continuation of an eliminationist antagonism to a Jewish state promises further turmoil. In short, the conflict will not be ended by annexation. It will instead enter a new phase on vastly improved terms for the enemies of Israel.

Insurmountable obstacles to success of the One-State-Solution

All this would represent a staggering encouragement and unprecedented opportunity for the escalation of the conflict throughout Israel. Therefore, it is hard to avoid the conclusion that this ‘solution’ is more dangerous than the problem it is supposed to address. Broadly expressed, either the Palestinians will oppose annexation, in which case escalated conflict is certain, or they will accept it, at least formally, in which case this too will lead to an escalation of the conflict.

By contrast, without clear and decisive reasons for the formal exercise of Israel’s claimed sovereignty, the vagueness of the term Disputed Territories provides the best alternative in terms of control. Therefore, without decisive emergency reasons to justify annexation and adequate measures to handle the problems outlined above, why bother?

However, a decisive emergency or favorable opportunity might arrive in future. Hence, if politics are primary, the widest political support possible is needed, both internally and abroad. Yet for purposes of mobilizing political support, Israel does itself no favors by remaining silent on its sovereign claims and legal rights. As Caroline Glick nicely put it, not to promote our rights is tantamount to acquiescence in the claims of others.

However, although Palestinian recognition of the legitimacy of Jewish national rights is crucial for the solution of the conflict favored internationally, there are no signs that this is a concern for international deliberations. This effectively means that the real driving force of the conflict is invisible. It also means that blame falls overwhelmingly on Israel. To rectify this, therefore, Palestinian positions must be made visible and the burden of blame for the continuation of the conflict shifted to where it belongs.

As a result, a Primary Message for Israel’s counter-propaganda is to focus on the question of the Palestinian denial of Jewish national rights and their refusal to accept Israel as the nation-state of Jews. Elevating this to the level of common knowledge reduces the likelihood that it can be evaded in international diplomacy (see, A Counter-Propaganda Project).

The basic question to be addressed to governments and international bodies is this: what are they doing to produce the core condition that would make possible the solution they say they favor? Even partial success in the propagation of this will break the virtual monopoly enjoyed by the Palestinian narrative. It will also help position Israel politically for the eventuality or realization that the Palestinians will never accept Israel as the national state of the Jewish people (see, Does Israel Need to Convince the Palestinians that It Wants Peace?).

If so, the same international and public diplomacy that makes visible the cause of the failure to end the conflict also serves to reduce outside pressures and to enhance Israel’s room for maneuver in the inevitable emergencies of the future.

 

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