By Ira Sharkansky
JERUSALEM –The “West Bank” is a tricky place legally, politically, and semantically.
There is one semantic conception that it is everything on the west bank of the Jordan River, all the way to the Mediterranean.
More limited and conventional is the notion that it is the area between the Jordan River and the 1949 armistice line.
Even more limited, and perhaps less conventional outside of Israel, is the notion that it is the area between the Jordan River and the 1949 armistice line, except where areas of Jerusalem declared by Israel immediately after 1967 extend into what others call the West Bank.
Recently we have heard another conception of the West Bank: the land between the Jordan River and Israel’s security barrier, which pokes here and there east of what had been the 1949 armistice line and the 1967 border.
The legal confusion consists of one view, widely supported, that the West Bank is occupied territory upon which various international agreements apply. By this view, heard frequently from foreign governments, many Israelis, and supported by some decisions of the Israeli Supreme Court, the occupying power cannot act against the rights of the existing population, and cannot move its own population into the area in a de facto annexation.
Another view, articulated again most recently by a committee established by the Prime Minister and including retired Justice of the Supreme Court Edmond Levy and former Legal Advisor to the Foreign Ministry (and former Ambassador to Canada) Alan Baker, is that the area is not occupied territory. The idea rests on the absence of any legitimate occupying power prior to 1967. Jordan’s occupation as a result of the 1948 war was recognized only by Pakistan and the UK, and there had never been a state of Palestine. From this perspective, the area is “disputed” rather than “occupied,” and there are no legal restraints against Jews living there.
Somewhere in the archives is a United Nations decision that divides the British Mandate between a Jewish State and an Arab State. That seemed to disappear with the Arab attack on Israel and the War of 1948, but not in the view of all international lawyers.
One can write at length about whether the United States and other western governments view parts or all of Jerusalem: West Bank, Israeli, or something else?
Where law is ambiguous–as it usually is–there is room for perspective, judgement, and political struggle.
Dan Margalit is a respected and centrist Israeli commentator whose op-ed piece entitled “The Settlements between Two Reports” defines the politics involved in legal opinions. One of the reports, from 2005, was prepared by a senior official of the Israeli Justice Ministry, and has become a landmark on the side of the West Bank as occupied territory, where Israel must act in accordance with international law. Margalit notes that the report’s author, Talia Sasson, was not only a government lawyer, but also a political activist who presented herself as a candidate for the Knesset on the ticket of the left-of-center Meretz.
The members of the committee appointed by Netanyahu, including former Justice Edmond Levy and Alan Baker, were well known for their views on the legal status of the West Bank.
Margalit’s point is that the contents of both reports were predictable by anyone familiar with the authors.
Neither report is the work of extremists. Sasson reveals her own views, recognizing the complexity of the Israel-Palestine conundrum, in a lengthy interview. Anyone reading it will get a decent lesson on the issues involved, even taking account of Sasson’s perspectives. Baker has been careful to note that private Palestinian land ownership takes precedence over Israeli settlement activities.
Overseas officials, including a spokesman for the Obama administration, have been adamant in terming the Levy report unacceptable.
“We do not accept the legitimacy of continued Israeli settlement activity and we oppose any effort to legalize settlement outposts,”
Prime Minister Netanyahu was careful to avoid commitment when receiving the report of the Levy Committee. He said that a government committee will give it careful consideration. Israeli politicians and commentators of left and right are expressing themselves as expected. On the one hand Levy’s report is a danger to Israel’s continued existence as a democratic and Jewish state that can enjoy international support. On the other hand, Levy’s report legitimizes Jews’ settlement in the land of their ancestors in a setting where Palestinian extremism prevents a reasonable agreement about two states.
In reality, it is likely that Israeli politics will keep away from either extremes.
Currently this brouhaha is competing for media space with apocalyptic threats from various sides about the issue of recruiting Haredim and Arabs. An ultra-Orthodox MK is chair of the Knesset finance committee, and we have heard that there will be no approval of next year’s government budget if there is a vote to draft Yeshiva students. Other brickbats result from the verdict about Ehud Olmert. One of his supporters went so far as to say the chief prosecutor owes the country his suicide for daring the charge a sitting prime minister on what Olmert’s friends call flimsy evidence. Defenders of the prosecutors are asking how the judges could accept Olmert’s claim that he was not aware of having received $450,000.
All of these issues will leave the front pages without destroying the country.
Most likely there will be a resolution of Haredi and Arab enlistments that are widely criticized as unsatisfactory.
While there are supporters who see Ehud Olmert returning to politics and standing against Benyamin Netanyahu in the next election, it will be difficult for Olmert to get closer to power than the fringes of political activity. He has been marked as guilty of some misconduct, not guilty of others only by virtue of the judges’ uncertainty, and a trial including charges of accepting bribes is likely to continue for a year or more. He has said that he has no intention of returning to politics. 55 percent of those questioned said that he cannot serve in a government position.
With respect to the report offered by Justice Levy, Prime Minister Netanyahu knows how to express himself in favor of settlers, while recognizing the limits of how far that can go. He has no interest in absorbing large swaths of the West Bank into Israel, both to avoid a confrontation with the United States and other worthy governments, and even more in order to avoid responsibility for governing West Bank Arabs, or making them citizens of Israel.
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Sharkansky is professor emeritus of political science at Hebrew University. He may be contacted at ira.sharkansky@sdjewishworld.com