We MUST Fault Those Who Refer to “Occupation” – A Response to Steve Sheffey

Steve Sheffey and I have a lot in common. We are both attorneys from Chicago’s north suburbs, both long time AIPAC members (he much longer than me), both pro-Israel advocates who support a two-state solution. I respect his passion and his ability to consistently make the progressive case for Israel from inside the progressive community in a way that I, as a centrist Independent, cannot. We’ve corresponded from time to time; when we disagree on politics, it is in a thoughtful and respectful way.

But sometimes he gets it wrong, and in his September 8, 2019 weekly newsletter (https://myemail.constantcontact.com/Pardon-Me–Friend–Is-This-Occupied-.html?soid=1103590106844&aid=t51PrZukNgM), he gets it very seriously wrong in a way that is actually detrimental to our shared belief that a two-state solution is the best for Israel. Contrary to his position, we must indeed fault politicians, and anyone else, who refers to Israel’s presence in the West Bank as “occupation” – and failing to do so not only serves to support those who demonize Israel but perpetuates an atmosphere that inhibits dialog on the true issues.

Israel is not, and has never been, an “occupier” of the West Bank. As I, and others (including one cited by Mr. Sheffey’s newsletter), have written before, it is not subject to reasonable debate that Israel has the legal right under international law to sovereignty in the West Bank. https://blogs.timesofisrael.com/language-matters-israel-and-the-language-of-the-international-community/. For that reason alone, using the word “occupation” is legally incorrect and only gives succor to Israel’s enemies.

To his credit, Mr. Sheffey (as always) includes links to the sources that he asserts as support for his position so that readers can read them for themselves. But the sources linked in Mr. Sheffey’s newsletter are cited out of context. Not only do they not support his position, but they actually state the opposite. Yes, the Israeli Supreme Court does indeed use the term “occupation” in its rulings on West Bank issues, but that is only because, after 1967, the Israeli government, for political reasons, voluntarily chose not to exercise the legal sovereignty that was its right under international law. The newsletter’s link on this issue is to David Kretzmer, The law of belligerent occupation in the Supreme Court of Israel, International Review of the Red Cross, Vol. 994, No. 885, Spring 2012. At p. 210, Mr. Kretzmer states: “The Government of Israel adopted the position that the status of the West Bank and Gaza was unclear and that in all events it was questionable whether the Fourth Geneva Convention applied there. At the same time the government declared that the IDF would respect the humanitarian provisions of the Convention.” Despite Mr. Sheffey’s inference to the contrary, under no circumstances can this be legitimately used as confirmation that either the Israeli government (throughout its history and regardless of which party was in power or who was the Prime Minister) or the Israeli Supreme Court agreed that Israel’s presence in the West Bank was an “occupation.”

Mr. Sheffey’s newsletter states: “The legal arguments against using the term ‘occupation’ are that since Jordan’s control of the West Bank was not legitimate under international law and there has never been a Palestinian state, Israel cannot ‘occupy’ land that does not belong to anyone else.”

That, however, is NOT the legal argument against using the term “occupation.” The legal argument, as set out in my earlier article – linked above – is based on the League of Nations Mandate, the United Nations Charter, the international law principle of Uti Possidetis Juris (described in more detail in the 2016 Arizona Law Review article by Bell and Kontorovich cited in my earlier article), and the language of the Fourth Geneva Convention itself. No one – and certainly not the sole source cited by Mr. Sheffey’s newsletter – argues that the legal reason is that “Israel cannot ‘occupy’ land that does not belong to anyone else.”

Indeed, the source linked in the newsletter states exactly the opposite. The linked article is: Avinoam Sharon, Why is Israel’s Presence in the Territories Still Called ‘Occupation’?, Jerusalem Centre for Public Affairs, 2009. The entire article is worth reading, but the Conclusion section demonstrates that the author strenuously disagrees with Mr. Sheffey’s suggestion that there is no harm in continued use of the term or in failing to strongly criticize those who do.

This is apparent from the following quotes from the Conclusion of Mr. Sharon’s article (at pp. 19-22) (emphasis added):

In terms of the definition of “occupation” in customary law, as understood at least since the drafting of the Brussels Code of 1874, Israel has never occupied the West Bank and the Gaza Strip. Developments since 1967 raise questions that further undermine viewing Israel as an occupying power under the customary definition.

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Unfortunately, it would appear that this casual use of the term “occupation” sometimes influences its use in circumstances where more caution is expected. On occasion, even legal scholars seem to assume that the existence of an Israeli occupation is self-evident and no longer requiring the rigorous examination that they would normally require in other cases.Indeed, in some cases, this commonly known “fact” of Israeli occupation is offered as a proof of the existence of some proposed principle or as proof of Israel’s alleged status as occupier itself.

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Another possible explanation is that the term “occupation” is employed politically, without regard for its general or legal meaning. The use of the term “occupation” in political rhetoric can be useful in simplifying debate. It reduces complex situations of competing claims and rights to clear-cut, predefined categories of right and wrong. The possibility of using the term “occupation” as a pejorative to vilify or delegitimize a party to a conflict rather than confront the legal, military and humanitarian issues is also not easily discounted.

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The use of the term “occupation” to maintain Israel’s responsibility for the fate of the Palestinians also serves the agenda of those who question the legitimacy of the State of Israel or who view Israel as an American or Western proxy. This political abuse of the term “occupation” to demonize Israel as part of a general assault upon the West, or upon Israel’s legitimacy, underlies the continued use of the term in regard to Israel as part of a geopolitical narrative that has little to do with Israel’s status as an occupier under international law.

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Unfortunately, political use and misuse of the term “occupation” has a detrimental effect upon the law and, potentially, upon the people deserving its protection. Making the definition of “occupation” subject to political interests and influence rather than to the formal requirements of international law erodes the power of the law to govern conflicts.

I quote Mr. Sharon’s Conclusion so extensively because it demonstrates how thoroughly Mr. Sheffey’s newsletter misstates – and, apparently misunderstands – the lessons of the very article he cites. These quotations, moreover, highlight the very real danger of agreeing to the normalization of the use of the word “occupation,” and all that implies. The pro-Israel community must NOT accede to use of this term by anyone, inside or outside of our community, and absolutely not among the political class, regardless of the positions on the political spectrum that we, or they, hold. It does not matter whether one is progressive, liberal, centrist, conservative, or alt-right. The law is well-settled and we must not permit it to be convoluted for political gain.

And it is wrong to confound – as the newsletter does – issues of “settlement expansion and unilateral annexation.” These are two distinct issues. No serious person who supports a two-state solution can legitimately contend that settlement expansion has any impact at all on its viability, much less that it will “eventually make a two-state solution impossible.” Even J-Street, so frequently a critic of Israel and West Bank settlements, agrees that any two-state solution will include the vast majority of existing settlements, with land swaps (see maps linked in my earlier article). Expansion of settlements on their current footprints will have no effect on that, and it is a fallacy to suggest otherwise. Unilateral annexation is an entirely separate matter – and while well within Israel’s legal rights (as described above), creates a very different set of practical policy concerns.

Mr. Sheffey and I agree on the need to keep a two-state solution alive. But he makes a serious mistake in arguing that this is Israel’s burden, in refusing to demand responsibility on that score from the Palestinians and those in the anti-Zionist movement, and, most importantly, in acceding to the use of language that sets a negative tone, sends the wrong signals, and makes keeping a two-state solution alive that much harder.