Not Another Futile Potemkin Peace
Peace should have been achieved in Gaza when Israel fully withdrew from Gaza in 2005, including removing any military presence and all Israeli residents.
As the wise Charles Krauthammer ob”m wrote, “…Israel evacuated Gaza completely. It declared the border between Israel and Gaza an international frontier. Gaza became the first independent Palestinian territory in history. Yet Gazans continued the war…Why? Because occupation was a mere excuse to persuade gullible and historically ignorant Westerners to support the Arab cause against Israel. The issue is, and has always been, Israel’s existence. That is what is at stake.”
Gaza was not occupied by Israel as a matter of law or fact, when genocidal Hamas invaded Israel on October 7, 2023 and committed rapes, kidnappings, sadistic murders and other atrocities.
Moreover, the records of the United Nations (UN) reflect that any occupation ended in 1994 and thereafter the Palestinian Authority (PA) era began, as acknowledged and agreed to by the PA, including in a 2010 UN sponsored Agreement.
President George W. Bush provided Israel with a number of substantive assurances, as an inducement for Israel to proceed with withdrawing from Gaza. The agreement is summarized in President Bush’s Letter to Israeli Prime Minister Sharon, dated April 14, 2014 and includes the following critical provisions:
- Palestinians must undertake an immediate cessation of armed activity and all acts of violence against Israelis anywhere, and all official Palestinian institutions must end incitement against Israel.
- The Palestinian leadership must act decisively against terror, including sustained, targeted, and effective operations to stop terrorism and dismantle terrorist capabilities and infrastructure.
- The US reaffirmed its commitment to Israel’s security, including secure, defensible borders, and to preserve and strengthen Israel’s capability to deter and defend itself, by itself, against any threat or possible combination of threats.
- Israel retains its right to defend itself against terrorism, including proactively against terrorist organizations. Existing arrangements regarding control of airspace, territorial waters and land passages of Gaza are to continue.
- There was no right of return to Israel for the resolution of any Palestinian refugee issue, which could only ultimately be solved by settling in the PA governed areas.
- The US restated its strong commitment to Israel security and well being as a Jewish state.
- Israel must have secure and recognized borders, in accordance with UNSC Resolutions 242 and 338 and no requirement that Israel return to the armistice lines of 1949.
The Bush-Sharon letter agreement was, in effect, ratified by a Senate resolution passed nearly unanimously (95-3, with 2 absent) endorsing the agreement, as recorded in the Senate Congressional Record (Vol. 150, N0. 89, dated June 24, 2004). Thus, it is arguably not just a binding agreement under international law, but also US law, pursuant Article II, Section 2 of the US Constitution.
The stark reality is that this Israeli peace initiative, backed by the US, was an abject failure because the PA and Hamas breached the Oslo Accords and 2005 Disengagement Agreement and terrorist Hamas’ genocidal program against Israel. To put this in perspective, Hamas defeated Mahmoud Abbas’ Fatah party in the 2006 PA Parliamentary elections, but Abbas maneuvered to retain power. A civil war ensued with Hamas seizing power from the PA in Gaza in 2007.
Hamas established Gaza as an armed camp in violation of the Agreements and has regularly and illegally attacked Israel, including in 2008, 2012, 2014 and most recently, the ongoing war begun by Hamas’ invasion of Israel on October 7th.
Hamas is a US designated Foreign Terrorist Organization (FTO) and by virtue thereof it is prohibited to provide Hamas with material support or resources (18 USC 2339). Hamas’ avowed goal, enshrined in its Charter, is to destroy Israel. It also espouses antisemitic and genocidal doctrines directed against the Jews. Moral clarity demands Hamas’ atrocities can’t be justified or excused. The baseless pretext it invoked of the so-called ‘occupation’ is just another canard.
The foundational definition of the term occupation under International Law is embodied in the Hague Convention. It provides that a territory is only considered occupied when it is actually placed under the authority of a hostile army. As a threshold matter, the military forces of the conquered territory must have surrendered, been defeated or withdrawn. It also requires (1) a military presence in the occupied territory; and (2) exercising governmental authority over the area conquered, to the exclusion of the established civil government. Unless all of these criteria are satisfied, there is no occupation, as a matter of law. Merely having the potential to invade and control a territory, not coupled with an actual presence and effective control, is insufficient.
Gaza was a part of the original Palestine Mandate. Egypt conquered it in the 1948 war commenced by Egypt and other Arab nations to prevent the re-emergence of the modern Jewish State of Israel. It was re-conquered by Israel from Egypt in the 1967 defensive war and Israel administered it until governmental authority was transferred to the PA, in 1994, under the Gaza-Jericho Agreement. Under Oslo II and the 2005 Disengagement Agreement, Israel obtained certain rights to patrol Gaza’s coastal waters and air space, which do not constitute effective governmental control over Gaza. This was intended to enable Israel to interdict illegal weapons deliveries to Gaza, which are expressly prohibited under these Agreements.
In reflecting on theses circumstances in 2008, the Israeli Supreme Court in the Al-Bassiouni case held there was no occupation by Israel of Gaza, under International Law. The European Court of Human Rights, in 2015, ruled control of the airspace above a territory and the adjacent sea was insufficient to constitute an occupation under International Law, noting that occupation is inconceivable without “boots on the ground”.
Hezbollah, another US designated FTO, began a war against Israel in 2006. On August 11, 2006, the UNSC adopted Resolution 1701 requiring:
- Full cessation of hostilities begun by Hezbollah and also cessation of military operations of Israel in response.
- The Lebanese Army and the UN Interim Force in Lebanon (UNIFIL) to deploy their forces throughout the South of Lebanon and as that deployment begins, the IDF to withdraw its forces in parallel.
- The Government of Lebanon to extend its control over the area and replace Hezbollah control.
- Complete demilitarization south of the Litani River by Hezbollah and no armed groups in Lebanon other than its official army and UNIFIL.
- No arms sales or supplies or related material in Lebanon except as authorized by its Government.
- No foreign forces in Lebanon without consent of the Lebanese Government.
- All States to take all necessary measures to prevent their nationals, which would include the Iranian regime and its IRGC, another FTO, from supplying weapons, ammunition, military equipment, etc. to Hezbollah or training or assistance in the use or manufacture of such prohibited items.
Despite Israel withdrawing from South Lebanon, Resolution 1701 proved to be not just a failure; it is a fiasco. Instead of disarming and withdrawing from South Lebanon, Hezbollah became an even more potent malign force, estimated to be armed with over 100,000 missiles. It attacked Israel on October 8, 2023 and has continued its unprovoked war against Israel, causing enormous fires and damage in the Galilee region of Israel. It is reported that more than 80,000 Israelis have been displaced from their homes because of Hezbollah’s attacks.
Why then urge Israel immediately and completely to withdraw from Gaza. History and experience dictate that it did not work in Gaza or South Lebanon. Why repeat the same mistakes again and again; it’s not only the very definition of insanity, it’s also foolhardy. Indeed, it’s likely to make matters worse, not better. It’s time to eschew fantasies and be realistic.
First and foremost, the evil that is Hamas must be defeated and the kidnapped hostages released. Fundamental changes must also occur in Gaza and the PA, including at a minimum fully honoring the Oslo Accords, ending ‘Pay to Slay’ and totally demilitarizing Gaza. A concerted effort must be made to restructure the educational system to eliminate antisemitism. UNRWA has no place in postwar Gaza and criminal wrongdoers must be brought to justice. Trusted members of the Abraham Accords might be enlisted to assist in these efforts. Until then, there is every reason for Israel to demur, so as not to reward terrorism. Creating nothing more than another Potemkin facade of peace, masking another dysfunctional terror state, is not a solution. A phased withdrawal plan based on satisfaction of essential conditions over time makes more sense. Enough with delusional so-called peace plans; Israel, the US and the world need real peace.
The Abraham Accords are a proven model of mutual success when Israel engages with parties genuinely dedicated to peace and prosperity. For there to be meaningful peace discussions in Gaza there must first emerge a new and trustworthy leadership proven to be willing and able to make a true and enduring peace agreement. The steps noted above are a just a part of that evolutionary process.
As for Hezbollah in South Lebanon, at a minimum, UNSC Resolution 1701 must be enforced against Hezbollah and Israel must be allowed to do what the UN has failed to accomplish. Hezbollah must also be totally defeated and the IRGC, another FTO, must be sanctioned and restrained by the US, EU and UN so that it and its proxies cannot attack Israel. The malign activities of Hamas, Hezbollah, the IRGC and other FTO’s, as well as, the Houthis, another IRGC proxy, must be stopped.