I often meet Jews who in private admit they are offended by the settlement policy in the West Bank, in East Jerusalem and in the Golan. Nevertheless, they do not want to criticize Israel openly. They consider that they should respect Israeli sovereignty because they are not citizens of Israel, which, moreover, is the only democracy in the Middle-East.
Their questioning must be taken seriously, and, above all, answered, for once, with precision.
The first question is about citizenship. Many Jews hesitate to question Israeli sovereignty openly because Israel remains, in 2011, the only democracy in the Middle-East. This stand is highly respectable, but misused and distorted.
The issue is not about « democracy », but really about « sovereignty », because the settlement policy is not implemented within Israeli borders, i.e. beyond the limits of Israeli sovereignty. Surely, sovereignty and respect thereof only apply to policies implemented within the borders of a State, be it democratic.
Therefore, this does not apply to the settlements in the West Bank because they are built beyond the internationally recognized borders of Israel.
International law is clear
Uncertainty has nevertheless instilled on the « international nature » of these territories. Since Israel has annexed East Jerusalem and extended its national law to the Golan, some people consider that these territories are not international anymore. As to the West Bank, they describe it as “disputed territory”.
However, such considerations have no relevance in international law. Since 1967, the United Nations Security Council, the International Court of Justice in The Hague, as well as all members of the international community, including the United States governments, have repeatedly stated that the lands captured during the Six-Day War do not belong to Israel.
Another fact is also often neglected. All Israeli governments, including Netanyahu’s, have accepted Security Council resolutions 242, 338 and 1397, all of which establish that these territories were occupied in 1967 and do not belong to Israel.
The most recent significant document is the « Road map » adopted in 2003. It indicates that the final agreement “puts an end to the occupation which began in 1967”. The Sharon administration opposed certain parts of this document but did not question this sentence.
There are, admittedly, a handful of hawkish Israeli jurists who consider that these territories do not belong to the Palestinians nor to the Arabs. However, not even they ever claimed these territories fall under Israeli sovereignty according to international law.
To sum up, claims regarding Israeli sovereignty over East Jerusalem, the West Bank and the Golan have no legal basis, according to international law. Therefore, anyone, including Jews of the Diaspora, is free to publicly express their views on what is happening there.
Questioning the legitimacy of international law
In fact, many Jews of the Diaspora possibly question the legitimacy of international law more than its legality. I understand them very well, as I share their doubts myself. International law is indeed determined by power struggles between states. Moreover, it often stems from majorities dominated by dictatorships which should not teach lessons about democracy or human rights. The ridiculous displays at the Human Rights Council in Geneva are symbolic in this respect.
Is this enough, however, to deprive all of international law of any legitimacy? Must we throw out the baby with the bath water? This is, in any case, the settlement proponents view. They hope to silence critics by delegitimizing totally international law.
They are forgetting, however, that Israeli governments themselves legitimized international law when they ratified treaties in a sovereign and democratic way.
Besides, funnily enough, the very ones who reject international law haven’t recently stopped repeating that « Egypt must respect its peace treaty with Israel ». There can be no better illustration of the dangers incurred by totally delegitimizing international law.
In fact they are playing against their own side without realizing it, because without international law, the very legitimacy of the State of Israel would be called into question and, above all, even its right to defend its sovereignty could be disputed.
I have also recently heard a new argument in favor of continuing the settlement activity. The rationale is as follows: since Palestinian negotiators have accepted in secret negotiations that « large blocks of settlements » and Jewish neighborhoods of East Jerusalem would ultimately be left to Israel, building new settlements there is acceptable. Palestinians are even described as hypocrites when they are offended by the building activity in these very areas which they would agree to part with.
Without going into long legal and moral considerations, it is obvious that the proponents of this argument are once again playing against their own side. Indeed, the Palestinians could, on their part, claim that Israeli diplomats were ready to make concessions during the aborted negotiations. What would these pro-Israel hawks say if 100 000 Palestinian « refugees » settled in Israel because Olmert and Livni have considered it in 2008?
In conclusion, I understand perfectly Diaspora Jews’ reluctance to question Israeli sovereignty since they are not citizens of Israel, which is a democratic state. Yet this argument is only valid within this country’s internationally recognized borders. It is a fact that the settlements are built outside Israeli sovereignty; international law is indisputable on this matter.
Whatever partially understandable doubts about international law one can have, the fact remains that a total deligitimization of international law would in the end lead to a delegitimization of the State of Israel, of its right to defend its sovereignty and to enforce its international agreements, especially with Egypt.
Therefore, all citizens of the world, including Jews of the Diaspora, have the right to publicly express their opinion on the situation in East Jerusalem, in the West Bank and in the Golan. Due respect to the only democracy in the Middle-East simply stops at the borders of its sovereignty.
René Schwok, March 3rd 2011