Sunday, March 12, 2006

Israel's Tragedy Foretold (Gershom Gorenberg)

This valuable piece by the Israeli journalist Gershom Gorenberg makes a number of important points. I want to comment on just a few of them.

It is important to begin by drawing one sharp distinction here. There has been a good deal of loose talk to the effect that Israel's post-1967 occupation of the West Bank and Gaza is "illegal." This is incorrect. The occupation per se in no way violates international law (in contrast, for example, to Saddam Hussein's invasion and annexation of Kuwait in 1990). The relevant UN Security Council Resolutions, 242 and 338, called for a negotiated end to the occupation as part of an overall peace agreement in which the Arab states involved would recognize Israel, assure its security, and work out small mutually acceptable adjustments in the 1967 borders. As long as genuine peace agreements along these lines were not available, it could be argued that continued occupation of these territories was an unfortunate necessity. But this was and remains a question of policy, not legality. (And anyway, Israel long ago gave back most of the territory captured in the 1967 war as part of its peace treaty with Egypt.)

On the other hand--and this is the key point--the "Greater Israel" policy of permanent occupation and large-scale settlement pursued especially (but, alas, not exclusively) by Likud governments since 1977 has indeed been legally indefensible, not to mention unjust. Furthermore, quite aside from considerations of legality and morality, from Israel's own perspective this policy has been lunatic and self-defeating on a massive scale. According to a cynical aphorism attributed to Talleyrand, in politics a blunder is often worse than a crime. Well, this policy was a crime and a blunder.

Over the past few years, even some of the chief architects of this disastrous policy--above all Ariel Sharon--began to realize that it was all a gigantic mistake. As Gorenberg notes, "Polls show that a strong majority supports parties ready to part with settlements." But by now the damage--to Israel as well as the Palestinians--has been tremendous, and much of it is probably beyond repair. For people like Sharon, the purpose of the settlement policy was, above all, to render a negotiated two-state solution impossible--and in this respect it has been all too effective. (Not unlike the post-1948 Arab policy of maintaining the Palestinians in the condition of stateless refugees to help prevent any "normalization" of Israel's existence, a strategy that has also been disastrously effective.)
The pattern is a familiar one from other countries. An endeavor once considered the epitome of patriotism leads to a quagmire. Sobriety and sadness replace euphoria. Arguments that once turned dissidents into pariahs now seem obvious: in this case, that to keep the West Bank will require Israel either to cease being democratic or to cease being a Jewish state. Not only settlers but national leaders have eroded the rule of law in pursuit of what they considered a patriotic goal.
Nevertheless, we have to hope that this is a case of better late than never. Gorenberg rightly concludes:
Today it is clear that Israel's future as a Jewish state depends on ending its rule of the West Bank. Settlements have shackled Israel rather than served it. Thirty-eight years after the missed warning, we must find a way to untie the entanglement
--Jeff Weintraub
=========================
New York Times
March 10, 2006

Israel's Tragedy Foretold
By Gershom Gorenberg
Jerusalem

With Israel's national election approaching, each day's news emphasizes a clear political shift: the settlement enterprise has lost the support of the country's mainstream voters.

Acting Prime Minister Ehud Olmert, the front-runner in the March 28 vote, plans to evacuate more West Bank settlements unilaterally, a top figure in his party said this week. Mr. Olmert himself announced he would stop decades of investment in infrastructure for settlements. Those promises reflect a change not only in Mr. Olmert, a lifelong rightist, but in the electorate. Polls show that a strong majority supports parties ready to part with settlements.

The pattern is a familiar one from other countries. An endeavor once considered the epitome of patriotism leads to a quagmire. Sobriety and sadness replace euphoria. Arguments that once turned dissidents into pariahs now seem obvious: in this case, that to keep the West Bank will require Israel either to cease being democratic or to cease being a Jewish state. Not only settlers but national leaders have eroded the rule of law in pursuit of what they considered a patriotic goal.

As an Israeli who has pored over the documentary record of the settlement project, I know there is one more painful, familiar element to this story: the warnings were there from the start and were ignored, kept secret or explained away. Leaders deceived not only the country's citizens, but themselves. So begin national tragedies.

Here is one critical example. In early September 1967, Prime Minister Levi Eshkol was considering granting the first approval for settlements in the West Bank and Golan Heights, conquered three months earlier in the Six-Day War. An Arab summit meeting in Khartoum had rejected peacemaking. The prime minister believed that the Golan and the strip of land along the Jordan River would make Israel more defensible. He also wanted to re-establish the kibbutz of Kfar Etzion near Bethlehem, which had been lost in Israel's 1948 war of independence.

The legal counsel of the Foreign Ministry, Theodor Meron, was asked whether international law allowed settlement in the newly conquered land. In a memo marked "Top Secret," Mr. Meron wrote unequivocally, "My conclusion is that civilian settlement in the administered territories contravenes the explicit provisions of the Fourth Geneva Convention."

In the detailed opinion that accompanied that note, Mr. Meron explained that the Convention — to which Israel was a signatory — forbade an occupying power from moving part of its population to occupied territory. The Golan, taken from Syria, was "undoubtedly 'occupied territory,' " he wrote.
Mr. Meron took note of Israel's diplomatic argument that the West Bank was not "normal" occupied territory, because the land's status was uncertain. The prewar border with Jordan had been a mere armistice line, and Jordan had annexed the West Bank unilaterally.

But he rejected that argument for two reasons. The first was diplomatic: the international community would not accept it and would regard settlement as showing "intent to annex the West Bank to Israel." The second was legal, he wrote: "In truth, certain Israeli actions are inconsistent with the claim that the West Bank is not occupied territory." For instance, he noted, a military decree issued on the third day of the war in June said that military courts must apply the Geneva Conventions in the West Bank.
There is a subtext here. In treating the West Bank as occupied, Israel may simply have been recognizing legal reality. But doing so had practical import: if the land was occupied, the Arabs who lived there did not have to be integrated into the Israeli polity — in contrast to Arabs within Israel, who were citizens.

Eshkol and other Israeli leaders knew that granting citizenship to the Arabs of the West Bank and Gaza Strip would quickly turn Israel into a binational state. In effect, the Meron memo told Eshkol: you cannot have it both ways. If the West Bank was "occupied" for the Arab population, then neither international law nor Israel's democratic norms permitted settling Jews there.

The memo did note, however, that settlement was permissible if done "by military bodies rather than civilian ones" in bases that were clearly temporary. A week after receiving the memo, Eshkol informed the cabinet that Kfar Etzion would be re-established — through a branch of the army called Nahal, which created paramilitary outposts. By the end of September, settlers arrived at Kfar Etzion. Publicly they were described as "Nahal soldiers." In fact, they were civilians. The ruse acknowledged Mr. Meron's opinion. It also showed a sadly mistaken confidence that the legal, ethical and diplomatic difficulties of settlement could somehow be avoided.

Mr. Meron, it is worth noting, left Israel's foreign service a decade later to teach at New York University. A child survivor of the Holocaust, he became one of the world's leading experts on the laws of war — and more recently, a judge on the International Criminal Tribunal for the Former Yugoslavia.

Meanwhile, it did not take long before explicitly civilian settlements were established in land occupied in 1967. Israel's diplomats and supporters reverted to the argument Mr. Meron discounted — that the Geneva rules on occupied territory did not apply to the West Bank. Those who still use that argument are unaware of the secret Israeli legal opinion that preceded settlement.
Today a quarter-million Israelis live in the West Bank. Legal arguments cannot undo 38 years of settlement-building. And the ascent of Hamas in Palestinian politics has only made it more difficult to reach diplomatic agreement on the West Bank's future.

Yet along with international law, Israeli law was repeatedly bent or broken to allow settlement to proceed. The contradiction between keeping Palestinians under military occupation while settlers enjoy the rights of Israeli citizens has become glaring, even to the Israeli center-right. Hence the shift in Israeli politics.

Today it is clear that Israel's future as a Jewish state depends on ending its rule of the West Bank. Settlements have shackled Israel rather than served it. Thirty-eight years after the missed warning, we must find a way to untie the entanglement.


Gershom Gorenberg is the author of "The Accidental Empire: Israel and the Birth of the Settlements."

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