June 6, 2017
“Fifty Years and Heading Up”
June 5th marks fifty years on the secular calendar since the beginning of the Six Day War—a war in which Israel achieved a stunning military victory over multiple Arab enemies, and acquired considerable areas of land in the process: eastern Jerusalem, the Golan Heights, Judea and Samaria, and the Sinai.
Much is being written about the nature of this war: whether it could have been avoided, how it was won. I don’t intend to explore these topics, but I recommend an analysis of the inevitability of the war – because of the total Arab rejection of Israel – written by Prof. Efraim Karsh:
Karsh’s depiction of inevitability underpins my own sense of what was going on: For me, as for many others, the hand of God was visible. That is, it was meant to be.
This is not only because of the lightning-swift and overwhelming military victory, but because the war enabled Israel to reunite Jerusalem and liberate Judea and Samaria from an illegal Jordanian occupation.
None of which, in the end, precludes the fact that our victory has brought struggle at a number of levels: Struggle because we have not known what to do with that victory.
We have already celebrated the reunification of Jerusalem according to the Hebrew calendar. Undivided, it will be the capital of Israel forever.
The Golan Heights – where Israeli law has been applied – has proved to be critical from a security perspective. Without Israeli control of the Golan, a hostile Syria would be at the shore of Lake Kinneret.
The Sinai was returned to Egypt as part of the Israeli-Egyptian peace treaty of 1978. I refer to this briefly below.
The primary focus of this posting is Judea and Samaria. While they are at the very heart of our ancient heritage in the land – in Hevron, Shilo, Beit El, etc., these areas remain the source of much contention.
Judea and Samaria belong to Israel. With all of the Palestinian Arab babble about “international law” – which is invoked at the drop of a keffiyeh – international law resides with Israel.
Please see the position paper of the Legal Grounds Campaign for a clear outline of Israel’s legal rights to the land:
Here I offer a few major points:
 The British Mandate for Palestine, passed unanimously by the League of Nations in 1922, was an article of international law. Recognizing Palestine (from the Jordan River to the Mediterranean Sea) as a Jewish homeland, it called for “close settlement by Jews on the land.”
The fact that Israel, from her inception until 1967, was not in control of some part of Mandate Palestine (i.e., Judea and Samaria) does not alter the fact that this was and is Jewish land – it was simply unclaimed Mandate land.
There is no other entity that is able to lay legitimate claim to this land. It went from being part of the Mandate territory under the British (assigned as Jewish homeland), to being occupied illegally by Jordan, to being liberated by Israel.
 Recently, international law professors Eugene Kontorovich and Avi Bell have called attention to a principle of customary international law [international law established by virtue of the fact that this is the way the matter is customarily handled around the world] called Uti Possidetis Juris.
“This doctrine provides that emerging states presumptively inherit their pre-independence administrative boundaries.”
That is, the State of Israel that emerged from the pre-independence British-administered Mandate territory can be presumed to have the same boundaries as the Mandate territory. This means from the river to the sea.
The notion that Judea and Samaria, in totality or any part, belong to the Palestinian Arabs is a myth that has been built into their narrative and repeated so often that much of the world believes it.
It is implicit in the demand that we “return” the land to them. Return it? They never had it.
Similarly is this the message when Abbas carries on about the need for Israel to go back to the “1967 border.” As if everything past that so-called border belonged to them.
But there was no “border,” only a 1947 armistice line that was by its very definition temporary, at the insistence of Jordan. Jordan. Not Palestinian Arabs.
My last point applies as well to UN Security Council Resolution 242, passed after the Six Day War. It did not require Israel to withdraw from all the lands acquired during the war, but rather to do some withdrawal. (“…from territories”)
Many refuse to accept this, but a very real case can be made for Israel to have complied with this requirement by virtue of withdrawal from the Sinai at the time of the peace treaty signed with Egypt in 1979.
In any event, this resolution speaks of “a peaceful and accepted settlement” between “the States concerned.” That is, negotiations between Israel and Jordan to determine where a border would be drawn.
There is NO reference to Palestinian Arabs or to the need to establish a Palestinian state.
It is greatly to be regretted that Israel did not apply sovereignty over all of Judea and Samaria immediately after the end of the war in 1967, just as full sovereignty was applied to eastern Jerusalem. It was not applied because some notion prevailed that a “land for peace” deal might be possible.
But rather than bringing peace, the Israel government’s hesitancy about fully laying claim to what was ours ushered in an extended period of Arab intransigence and on-going hostility. We did not learn the lesson: attempts to compromise with the Arabs yielded nothing positive.
What is more, the legacy of our hesitation has been a shifting diplomatic/political ambiguity that persists to this day.
In 1993, the first of the Oslo Accords was negotiated and signed, establishing the Palestinian Authority as an interim self-government. It was an enormous mistake on several counts.
Arch terrorist Yasser Arafat and his PLO cohort were brought from Algiers as the representatives of the “Palestinian people,” and they were the ones with whom the Israeli government negotiated. It was imagined by those with their heads firmly in the clouds (no one more so than the late Shimon Peres) that this would bring peace.
But Arafat was not about peace: his interest was in weakening Israel, via incitement and support for terrorism. Establishing cronyism and corruption in the PA, he in due course brought suffering to the very people he presumably represented, as well. Arafat was quintessential sleaze.
Below is the famous picture of a beaming President Clinton on the While House lawn, overseeing the handshake between Prime Minister Rabin and Arafat after the Accord was signed. What I remember is that for one moment before the handshake, Rabin had looked at Arafat’s hand with enormous contempt and hesitated before proffering his own. Note that he alone is not smiling.
(The PA under Arafat protégé Mahmoud Abbas fares no better. Abbas dresses better, conducts himself with greater sophistication. But I do not believe his heart is any less black.)
Oslo II, signed in 1995, established Areas A (under full PA administration), B (PA civil administration and Israeli military administration), and C (under full Israeli administration) in Judea and Samaria. The IDF has latitude to move into Area A in pursuit of terrorists.
Today, Area C of Judea and Samaria is administered by an Israeli Civil Administration that answers to the Ministry of Defense, which is ultimately accountable to the Knesset. The laws for Israel within the Green Line (pre-1967) are not in all particulars the same as laws for Israeli citizens in Judea and Samaria – a problematic situation. The Civil Administration contends with layers of legal structures from different time periods – the Ottoman period, the period of the British administered Mandate, and the period of Jordanian occupation.
Several points about Oslo must be understood:
 Leading legal experts maintain that Oslo is not binding in international law as it was not an agreement between two states. The fact that it was witnessed by the major powers and endorsed by the UN does provide it with a unique status.
 This was an agreement into which Israel entered voluntarily, and not because she was obligated to do so. It was one more attempt to compromise in order to bring peace, and was predicated on a “land for peace” conceptualization.
That is: Israel was not saying that Judea and Samaria or some part thereof inherently or legally belonged to the Palestinian Arabs. Rather, Israel was prepared to consider giving up part of her land.
 The Accords did NOT promise a full and sovereign state to the Arabs. The reference is to a “permanent status” agreement to be arrived at via bilateral negotiations. The precise nature of that status was not spelled out, but was assumed to be some sort of autonomy. That original assumption morphed into a notion that the Palestinian Arabs—who vigorously promoted the idea—were entitled to nothing less than a fully sovereign state.
(The logic of why this particular group of people, who have nothing positive to offer the world and stand on a dubious cultural identity, should be “entitled” to a state while other ethnic groups have no self-determination has always eluded me. And yet it became a “cause célèbre of sorts, and many Israelis bought in.)
 It was understood that the issue of Israel “settlements” in Judea and Samaria would be resolved in the final negotiations; that is, until those negotiations were concluded, there was no prohibition on Israeli building.
Once Judea and Samaria were divided into three areas, it was logically the case that Israeli building would be limited to Area C, but certainly within Area C, no limit was placed on the amount of Israeli building to be permitted.
All of the Israeli communities/cities in Judea and Samaria are in Area C, with a total Jewish population at this point of over 400,000.
The charge is made regularly by Palestinian Arabs and their supporters that Israel is an “occupier” in Judea and Samaria and that the “settlements” are illegal.
This is simply not the case. How can a nation be an occupier in its own land?
The Levy Report—released in 2012 by former High Court Justice Edmond Levy z”l, international lawyer Alan Baker, and Tehiya Shapira, former Tel Aviv District Court Judge—found that Israel’s presence in Judea and Samaria was not “belligerent occupation.”
In spite of accusations to the contrary, the Geneva Conventions do not apply to Israel’s presence in Judea and Samaria. (I may come back to explore this in greater detail.)
With all of this, consider that the PLO signed off on the Oslo Accords, which do not prohibit Israeli building, and provide for self-government via the PA of the great majority of the Arabs in Judea and Samaria. They are ruled by their own people, and not by Israel!
When the charges of “occupation” are leveled at Israel, they are often accompanied by accusations of the damage done to Palestinian Arabs by that “occupation.”
Ben-Dror Yemini has done a marvelous job of countering these libels, demonstrating with hard facts the ways in which Arab quality of life in Judea and Samaria has actually improved dramatically since Israel liberated the area. In some instances he has figures specifically for the period of direct Israeli administration:
For example, the infant mortality rate in 1967 was between 152 and 162 per 1,000 live births. By 1993, when Oslo was signed, it had dropped to less than 30.
Oslo is moribund.
First, because it was predicated on the mistaken assumption that the PLO genuinely sought a state, that all that was required to make it a reality was negotiating the right terms.
We have seen that the PLO leaders have refused opportunities to establish a viable state. This was true when Ehud Barak was prime minister in 2000, and Arafat refused his offer. And then again in 2008 when Abbas rejected Ehud Olmert’s even more generous offer.
There will never be the right terms. The PLO is never going to recognize Israel as a Jewish state and sign off on end of conflict. Not when the whole goal of the PLO is to deplete and damage Israel.
And then, because the PA has materially breached the agreement. It calls for both parties to “immediately, efficiently and effectively [act] against acts or threats of terrorism, violence or incitement;” but the PA continues to support terrorists and incite blatantly.
And yet, neither party has fully walked away from the pretense of Oslo.
It makes sense that the Arabs do not, as it serves their purposes. But that Israel does not seems to me an indication that we are stuck, and failing to move to a more constructive scenario.
There are a host of alternatives to the “two state solution” that have been proposed; Israel must begin to consider them with seriousness. There are ways to attend to the legitimate human and civil rights of Arabs in Judea and Samaria, while still protecting Israel’s rights.
Unfortunately, time after time, just as we anticipate that Oslo thinking at long last is about to dissipate, there are those who step forward to resuscitate it.
We are in such a period now. Those endorsing that “two-state solution”—including Israelis on the political left—are declaring there is a window to act. It will bring “peace,” they say. Anyone who opposes two states is against peace. We must try.
Try? As if we never tried before?
I am at a loss to understand how anyone who claims to truly care about Israel could imagine that relinquishing land to the Palestinian Arabs is a good idea. But there it is.
Judea and Samaria belong to Israel.
If there is a window of opportunity at present, it is for the government of Israel – finally, finally – to speak out definitively on this issue, without hesitancy. And specifically without imagining that it is incumbent upon us to make damaging concessions, which are referred to as “good will gestures.”
It is in these gestures that the danger lies. “Two states” will not materialize. But if our government believes it is necessary to give part of what is ours away in the course of “trying,” or to make the US president happy, or for whatever reason, then we are weakened and compromised.
It falls to each of us who cares about these matters to do our best to prevent those concessions from being made.
We must encourage the prime minister to stand strong – with regard to both vigorously defending our rights and doing substantial building in Judea and Samaria.
And we must demand that the Civil Administration protects our rights in Area C.
The PLO will never sign off on a final agreement with Israel. But they have an alternate plan: They want to establish facts on the ground in Area C, so that over time the Arab presence is sufficient to generate a state, without the PLO ever having had to make concessions.
To that end, there has been a large amount of illegal Arab building in Area C – much of it funded by the EU! There is a problem in particular when Arabs from Area B move over into C.
The response of the Civil Administration has been lax on this matter, although – thanks to Regavim (http://regavim.org.il/) – there has been an improvement in actions against the illegal building. This must be watched.
And then there is yet another, related, problem. Stories are emerging (which I have not yet confirmed) about some notion of Trump’s that we should turn over part of Area C to Area B, as a “good will gesture.” Very bad news, if it is true. The Israel government must not agree to anything of the sort.
There are reports that before the president’s arrival the Security Cabinet voted some “good will gestures” that included building an industrial zone for Arabs in Area C, which would end up becoming B.
With all of these concerns, I am optimistic about Israel’s future.
In the years since I’ve been doing my work as an activist and journalist, I have witnessed a movement to the right in the population, and in the Knesset. In the Knesset there is some very good action evolving to protect our rights in the land.
Recent polls confirm what I have witnessed anecdotally:
 Almost two thirds of Jewish Israelis do not believe that Israeli presence in Judea and Samaria constitutes “occupation.”
 And 87% of Jewish Israelis are opposed to dividing Jerusalem even if it were necessary in order to strike a deal with the PLO. They would not accept any Palestinian Arab control of the historic Old City.
© Arlene Kushner. This material is produced by independent journalist Arlene Kushner. Permission is granted for it to be reproduced only with proper attribution.