Alan Silverstein
Alan Silverstein

Ben & Jerry: Consider a Few Facts About the ‘Occupation’ and Why It Has Lasted Since 1967

What, according to international law, is “occupation”?
Land acquired in unjust warfare — a war of aggression — is characterized as “occupied territory.” This has been the case in China’s conquest and continued occupation of Tibet since 1950, Turkey’s conquest and occupation of one third of Cyprus since the early 1970s, and Russia’s conquest and occupation of Crimea in 2014, to name a few examples.

Land acquired in a just war — a war of self-defense — is termed “disputed territory” that can be used as a basis for negotiating a stable peace.

Was Israel the aggressor in 1967, seeking the conquest of land?
No! Israel never set out to acquire territory. Rather, Israel faced an imminent war of aggression in the spring of 1967. Egypt and Syria had unified their military command, and in May closed the Straits of Tiran to Israeli shipping, cutting off the Jewish state’s trade lifeline. Egypt imposed a blockade of the port city of Eilat and expelled the UN emergency peace-keeping force. These steps qualified as a casus belli, a declaration of war. Hundreds of thousands of Arab troops amassed on the borders, poised “to drive the Jews into the sea.”

In his book “Israel: A Concise History of a Nation Reborn,” Daniel Gordis writes, “The situation was dire. The Egyptians had at least 100,000 troops and 900 tanks in the Sinai. To the north, Syria had readied 75,000 men and 400 tanks, while the Jordanians had amassed 32,000 men and almost 300 tanks. In total, Israel faced a potential force of 207,000 soldiers and 1,600 tanks.

“Israel prepared for the worst. Rabbis across the country cordoned off areas to be used as mass graves. The Ramat Gan stadium was consecrated as ground for the burial of up to 40,000 people. Hotels were cleared of guests so the facilities could be used as massive emergency first-aid stations. Schools were converted into bomb shelters, and there were daily air raid drills.”

Was Israel justified in launching a preemptive strike in self-defense?
After weeks in pursuit of a diplomatic resolution to the crisis, Israel launched a war of self-defense. The IDF thwarted the would-be Egyptian and Syrian attackers, and after Jordan opened an eastern battlefront, defeated those aggressors as well.

After six bloody days and many casualties on both sides, the UN imposed a cease-fire. By then, Israel’s forces had taken control of the Sinai desert, Golan Heights, West Bank, and Gaza Strip, as well as the former Jordanian sector of Jerusalem.

Israeli leaders were unwilling to return to the status quo of 1948-67, a time of no peace treaties, constant terror, and periodic military assaults. They saw the captured land as a bargaining chip to gain long-sought recognition and stability.

Did Israel offer to trade land for peace?
Nine days after the cease-fire took effect, the Knesset rushed to enact a “land for peace” policy with both Egypt and Syria in pursuit of a final peace agreement. Both countries rejected the Israeli overture. The Arab League met and reinforced these rejections, offering the infamous “Three No’s” — “no negotiations, no recognition, no peace.”

In the absence of a peace agreement, did the UN insist upon unilateral Israeli withdrawal
No! The UN Security Council met and issued Resolution 242, a formula to deal with “disputed territory” in the context of a final peace agreement. Resolution 242 called upon Israel to relinquish “territory” acquired (rejecting the phrase “all territory” or identical territory) in exchange for comprehensive treaties for “defensible borders” and an end to all claims against the Jewish state.

Resolution 242 stipulated that Israel transfer land only in exchange “for peace within secure and recognized boundaries, free from threats or acts of force.”

Israel responded in the affirmative to 242, immediately seeking to negotiate treaties, but to no avail.

The Jewish state remained determined to pursue the “land for peace” approach, subsequently relinquishing 85% of the territories it had taken in exchange for treaties with Egypt and Jordan, as well as a unilateral Israeli withdrawal from Gaza.

Pending a final peace agreement, was Israel justified in holding onto the remainder of the disputed territory?
International jurist Stephen Schwebel researched and reported on the legal principles governing the acquisition of land in a war of self-defense; he wrote:

“ a) A State acting in lawful exercise of its right of self-defense [read: Israel] may seize and occupy foreign territory as long as such seizure and occupation are necessary for its self-defense;

b) As a condition of its withdrawal from such territory, that State may require the institution of security measures reasonably designed to ensure that the territory shall not again be used to mount a threat or use of force against it of such a nature as to justify exercise of self-defense;

c) Where the prior holder had seized that territory unlawfully [as Jordan had regarding the West Bank and East Jerusalem] the State which subsequently takes that territory in the lawful exercise of self-defense has, against the prior holder, better title.”

Has Israel made reasonable efforts to end “the occupation” and achieve a two-state solution?
A breakthrough occurred a decade after the Six-Day War, when, in 1977, Egyptian President Anwar Sadat paid a surprise visit to Israel and addressed the Knesset, shattering the wall of distrust. He partnered with Israeli Prime Minister Menachem Begin and two years later concluded a peace treaty; consequently Israel withdrew from 100 percent of the Sinai, three-quarters of all the land Israel had acquired in June 1967.

A second milestone took place in the mid-1990s. Under the aegis of the diplomatic efforts connected to the Oslo Peace Accords, Jordan’s King Hussein reached a peace treaty with Israeli Prime Minister Yitzhak Rabin. Again, Israel relinquished disputed territory (11.5 square miles) claimed by a neighboring state in exchange for peace, an “end of all Jordanian claims” against the Jewish state.

In regard to Syria, President Bill Clinton’s negotiating team brought peace within reach. In his memoir, Dennis Ross, the United States’ lead negotiator, affirmed that Israeli Prime Minister Ehud Barak offered to relinquish all the Golan Heights territory taken by Israel in 1967. Ross assumed that a peace agreement was imminent. To his dismay, Ross said, Syrian President Hafez al-Assad was “dismissive” of Barak’s proposal, and “for the first time in the history of the process,” Assad stated that in addition to the Golan Heights, the Sea of Galilee “‘has always been our lake; it was never theirs.’” Once Assad demanded that Syria be given a portion of the Sea of Galilee, negotiations collapsed. Today, Syria has become a client state for Iran, Israel’s implacable enemy.

Regarding Gaza, in 2005, encouraged by promises of support from President George W. Bush, Israeli Prime Minister Ariel Sharon authorized a unilateral Israeli withdrawal from Gaza. He uprooted 8,000-plus Israeli settlers and withstood strong opposition from the Religious Zionist camp. President Bush’s argument was two-fold: Presented with a territory and an economy to administer, the Gazans would moderate their behavior, and a magnanimous Israeli gesture would evoke sustainable good will throughout the world. Regrettably, Gaza became more hostile than ever, and initial global good will rapidly dissipated.

As for the West Bank, back-channel Oslo negotiations between Israelis and Palestinians in 1992 led to eight years of diplomacy. Israel accepted the 2000 Clinton Parameters, designed to lead to a resolution of the Israeli-Palestinian conflict. Yasser Arafat did not. The Palestinian Authority leader refused to surrender his demand that millions of Palestinian refugees be resettled inside pre-1967 Israel, which would have brought an end to an independent Jewish state. As a frustrated President Clinton said in his memoir, “Arafat never said no [to peace]; he just couldn’t bring himself to say yes.”

The Israeli effort to resolve the conflict diplomatically resurfaced in 2008. In her memoir, Condoleezza Rice, former U.S. secretary of state under President George W. Bush, confirms that Palestinian Authority leader Mahmoud Abbas rejected Israeli Prime Minister Ehud Olmert’s bold proposed territorial concessions, which were even more generous to the Arab side than those of the Clinton plan. Rice was amazed by how far the Israeli leader was willing to go. Olmert was prepared to give up nearly the entire West Bank, with equivalent land swaps between the parties. He also offered to divide Jerusalem, internationalizing the “Holy Basin” in the Old City. Rice brought Olmert’s proposal to Abbas in Ramallah. Abbas rejected it. Echoing Arafat, Abbas told Rice that the PA could not agree to a deal that prevented nearly four million Palestinians from being able to “go home” into pre-1967 Israel.

Diplomatic efforts resumed in earnest in March 2014. John Kerry, President Barack Obama’s secretary of state, formulated a “memorandum of agreement” outlining U.S. parameters of a final peace deal. In early 2015, while campaigning for election, Tzipi Livni, Prime Minister Benjamin Netanyahu’s dovish electoral rival, who had served as chair of the Israeli negotiating team of 2014, offered her assessment to journalist Roger Cohen. He wrote that while Livni acknowledged that “dealing with Netanyahu on the talks had always been difficult, from her perspective, the Palestinians caused the failure at a critical moment.”

“On March 17, [2014], in a meeting in Washington, President Obama presented Mahmoud Abbas with a long-awaited American framework for an agreement that set out the administration’s views on major issues, including borders, security, settlements, Palestinian refugees, and Jerusalem. Livni considered it a fair framework. Netanyahu, while saying he had reservations, had indicated a willingness to proceed. Abbas declined to give an answer in what his senior negotiator, Saeb Erekat, later described as a ‘difficult’ meeting with Obama. Abbas remained evasive on the Kerry framework.”

To this day, Abbas’s reply has not been received.

Yes, an end to the “occupation” should be pursued, but blame for the decades of diplomatic stalemate should not be placed upon Israel alone.

At numerous times, Israel has been proactive, awaiting reciprocity from Palestinian leadership. Attaining peace requires both parties to agree to direct negotiations and to a spirit of compromise.

The goal remains the formation of two states for two people, one Palestinian and one Jewish, living side by side in peace and security.

One-sided chastising of Israel simply encourages Palestinian intransigence, and reduces the likelihood of a worthy outcome.

About the Author
Rabbi Alan Silverstein, PhD has been the religious leader of Congregation Agudath Israel in Caldwell, New Jersey since 1979. From … 1993 to 1995 he served as President of the International Rabbinical Assembly of the Conservative Movement. From 2000 - 2005 he was President of the World Council of Conservative/Masorti Synagogues. He served as Chair of the Foundation for Masorti Judaism in Israel from 2010-2014. He currently serves as the president of Mercaz Olami. He is the author of It All Begins With A Date: Jewish Concerns About Interdating; Preserving Jewishness In Your Family: Once Intermarriage Has Occurred; as well as Alternative to Assimilation: A Social History of the Reform Movement in American Judaism, 1840-1930.
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