Try this experiment. Ask one group of people whether the population of Venezuela is more or less than 85 million people – and then ask them for their estimate of the actual population. Ask a second group (who did not hear the questions to the first group) whether the population of Venezuela is more or less than 25 million people – and then ask them for their estimate of the actual population.
I have done this experiment more than once. Invariably, the first group’s estimate of the actual population will be far higher than that of the second group (the true population of Venezuela is approximately 31 million, if you are curious). It arises from a principle called “anchoring” or “focalism,” a cognitive bias that describes the common human tendency to rely too heavily on the first piece of information offered (the “anchor”) when making decisions. Anchoring occurs when people use an initial piece of information to make subsequent judgments. Once an anchor is set, other judgments are made by adjusting away from that anchor, and there is a bias toward interpreting other information around the anchor. Other terms for this phenomenon include “cognitive dissonance,” the tendency to only hear evidence that already supports the individual’s viewpoint.
Experienced trial lawyers know this. It is the reason that jury selection and opening statements are so important. Negotiators know this too; it is the reason that car dealers include a sticker with the manufacturer’s suggested retail price (MSRP). Further, various studies have shown that anchoring is very difficult to avoid. In one study, students were given anchors that were obviously wrong. One group was asked whether Mahatma Gandhi died before or after age 9, and another was asked whether he died before or after age 140. The two groups nonetheless made significantly different guesses based on the anchor (Gandhi was assassinated at the age of 87).
These principles apply with special force to Israel, and in particular, to issues pertaining to the West Bank and the Palestinians. The language of the international community is inappropriately anchored to terms that, by their very usage, prejudges the issues and retards – indeed affirmatively prevents – any efforts to ever reach a reasonable solution. The first step that any advocate for resolution must undertake is to change the anchor by fundamentally changing the language used to describe the situation.
This approach is necessary regardless of which side of the political spectrum one is on. When the progressive left and most of Europe (and the United Nations) refer to the West Bank as “occupied,” to Israel’s presence and settlements as “illegitimate” or “illegal,” or as “Palestinian territory” (or other variations), it has prejudged the issue and ignored international law, as discussed further below. Using such loaded terms actually prevents peace.
Note that I have chosen to avoid loaded terms myself in this article, referring to the neutral term “West Bank” rather than the loaded opposite terms “Judea and Samaria” (as used by those who support the notion of Greater Israel) and “occupied territories” (as used by those who attack Israel).
It is, in fact and in law, irrefutable that regardless of one’s views on the settlement enterprise or a two-state solution (I personally happen to favor the latter), Israel is NOT an “occupying power” and settlements are NOT “illegal” under international law. It is equally irrefutable that under international law, Israel is the legal owner of the West Bank. This is described in great detail in a recent seminal legal publication: PALESTINE, UTI POSSIDETIS JURIS, AND THE BORDERS OF ISRAEL, by Abraham Bell and Eugene Kontorovich, Arizona Law Review (2016).
I am repeatedly surprised at how many people are not aware of the history supporting these positions, even those who are strongly pro-Zionist and quite involved in the pro-Israel community. While others have written about this topic from time to time, I add to those writings to present it here in the context of the overriding problem of anchoring.
In the League of Nations Mandate for Palestine, enacted July 24, 1922, the League established a Mandatory “in favour of the establishment in Palestine of a national home for the Jewish people.” Ironically, in light of the continued resolutions by the UN and its agencies (including the very recent UNESCO resolutions on Jerusalem and Hebron), the Preamble gave “recognition . . . to the historical connection of the Jewish people with Palestine” and Article 6 called for “close settlement by Jews on the land.”
Importantly, the “land” referenced in the Mandate included all of what is today Israel and Jordan. That entire space was, by international law, intended as a national home for Jews. That space included all of the West Bank, and all of Jerusalem as well; the Mandate contained no exceptions for Jerusalem.
Article 25 of the Mandate, however, provided the potential for an exception: “In the territories lying between the Jordan and the eastern boundary of Palestine . . ., the Mandatory shall be entitled . . . to postpone or withhold applications of such provisions of this mandate as he may consider inapplicable . . .” (emphasis added). Thus, the Mandate gave the Mandatory – Britain – the option to remove areas east of the Jordan River from “close settlement by Jews.” It did not, significantly, give Britain the option to change any provisions of the Mandate west of the Jordan River – what is now called the West Bank – as well as all areas on the Israeli side of the Green Line (more on that below) and Jerusalem. All of those areas remained set aside for the Jewish national home. When, in September 1922, when Britain formally exercised its Article 25 Authority and created Transjordan, it had no legal effect on the rest of the Mandate.
Why do these actions by a long defunct international organization matter? Because not only did they constitute international law in 1922, but the United Nations Charter expressly adopted them as international law in 1945, so they remain international law today as well. Article 80(1) of the UN Charter states: “[N]othing in this Charter shall be construed in or of itself to alter in any manner the rights whatsoever of any states or peoples or the terms of existing international instruments to which Members of the United Nations may respectively be parties.” (emphasis added). The League of Nations Mandate was just such an existing international instrument – and the UN Charter adopts it as fully binding international law.
When Britain declared the end of the Mandate and Israel declared its independence in May 1948, as of that date Israel became the legal owner of the former Mandate up to the Jordan River, including the entire West Bank and Jerusalem. In May 1948, Jordan invaded the West Bank and the War of Independence began – but at the end it was Jordan, not Israel, that was the illegal occupier under international law. It was at the end of that war, through the Israel-Jordan Armistice Agreement and the Israel-Egyptian Armistice Agreement, that the Green Line (sometimes erroneously called the “1967 lines” even though they are really the 1948-49 Armistice Lines) came into existence. It cannot be overemphasized, though, that these Agreements expressly, in their own language, provided that the Green Line was not an international boundary, but rather something to be negotiated in the future.
The Israel-Egypt Armistice Agreement states: “The Armistice Demarcation Line is not to be construed in any sense as a political or territorial boundary, and is delineated without prejudice to rights, claims and positions of either Party to the Armistice as regards the ultimate settlement of the Palestine question.” The Israel-Jordan Armistice Agreement contains similar language: “. . . no provision of this Agreement shall in any way prejudice the rights, claims, and positions of either Party hereto in the peaceful settlement of the Palestine questions, the provisions of this Agreement being dictated exclusively by military considerations. . . . The Armistice Demarcation Lines . . . are agreed upon by the Parties without prejudice to future territorial settlements or boundary lines or to claims of either Party relating thereto.”
The source documents themselves confirm: the 1948/1967 lines – the Green Line – are not internationally recognized borders of Israel. Under principles of international law, Israel’s borders as of the date of its Declaration of Independence included all of the West Bank and Jerusalem. Anyone who asserts that the Green Line is a recognized international boundary or sets out Israel’s borders is either deliberately dishonest or willfully ignorant.
Moreover, because the same League of Nations mandatory procedure also established the borders of Lebanon, Syria, Jordan, and other nations, if one contests the validity of the League of Nations Mandate as to Israel’s borders, one must also take the position that those nations also do not have internationally recognized borders. There is only one possible explanation for treating League of Nations-created borders as valid for those nations but not for Israel – applying a differential standard only to Israel is, by definition, anti-Semitism.
This means that, from a legal standpoint, it was Jordan that was the “occupying party” from 1948 to 1967. There has never, not for one day either before or after 1967, been an “Occupation.” Because Israel is, and always has been since May 1948, the legal sovereign of the West Bank, Israeli settlements there (whether wise or unwise politically or morally) have never, not for one day, been “illegal” or “illegitimate.”
That also means that UN Resolutions that start with language referring to the West Bank as “occupied territory” have no binding effect under international law and are themselves invalid. Take one example, the oft-cited International Court of Justice Advisory Opinion issued on July 9, 2004. Not only was it merely an “advisory opinion” not binding on anyone, much less Israel which is not a signatory to the actions that created the ICJ, but the title of the opinion is: “Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory.” But, as described above, there is no “Occupied Palestinian Territory.” The advisory opinion proceeds from a false premise and does not constitute valid law.
But what about the Geneva Convention, the most often-cited provision of international law cited against Israeli activity in the West Bank. Anchoring has its effect here as well, because Geneva Convention IV Relative to the Protection of Civilians in Time of War (August 1948), Common Article 2, provides that it applies “to all claims of partial or total occupation of the territory of a High Contracting party.” Leave aside for the moment the issue of who the “High Contracting party” might be – it is not Jordan, which long ago disclaimed any sovereignty to the West Bank – the applicability of the international contract cannot apply unless there is first an “occupation” under international law by another party. But, as discussed above, there is no “occupation,” legally – and legally is all that matters because the Geneva Convention is itself a legal document.
So too, Article 49 of the Geneva Convention does not apply as a matter of law. Oft cited Clauses 1 and 6 – dealing with transfers of civilian populations – apply to the “occupying power,” but again, Israel is not an “occupying power” as defined by international law.
And so we return to the concept of anchoring. As long as the international community insists on improperly using legal terms such as “occupation,” “territories,” and “illegal” to describe the West Bank, a solution is impossible. Even those who support a two-state solution as the best result for all sides cannot be successful where the mindset of those with whom one is negotiating starts from the wrong place.
At a minimum, we in the pro-Israel community, J-Street or AIPAC, politically left, right, or center, must ourselves change the words we use to describe the situation. We must insist that those with whom we discuss these issues, whether U.S. politicians or international envoys, change their language as well. It is a small step, seemingly insignificant and one that will require time and diligence – but one that has the potential to change everything and to set the parties on the road to a resolution at long last.