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The Sophistry of Daniel Ayalon

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Israel’s Deputy Foreign Minister Danny Ayalon, of the Yisrael Beiteinu party, once again raises one of the oldest and most tired arguments in support of Israel’s occupation to close out 2009.

Opining in the Wall Street Journal, Ayalon argues that the West Bank and East Jerusalem are not, in fact, occupied at all. The preferred term for Ayalon is “disputed territories.”

This view, not at all uncommon among defenders of the status quo, is based on several points. One, that the West Bank and East Jerusalem were not recognized as being part of any sovereign state after the dissolution of the British Mandate over Palestine in 1948. Two, that UN Security Council Resolution 242 calls on Israel to quit territories it captured in the Six Day War of 1967, but not all of those territories. And finally, though more circumspectly, that Judea and Samaria (the biblical terms for the area of the West Bank) represent the heartland of the Jewish national home historically.

These are facts, and none of them are clearly untrue. But their sum is very different from what Ayalon would like it to be.

That the West Bank (which includes East Jerusalem) was not part of a sovereign state since the fall of the Ottoman Empire doesn’t mean it was simply sitting there waiting for someone to pick it up. Ayalon cynically quotes the personal opinion of Lord Caradon, the principal author of 242, as saying that “It would have been wrong to demand that Israel return to its positions of June 4, 1967…” he decides to ignore Caradon’s statement of fact and principle that “… it is necessary to say again that the overriding principle was the “inadmissibility of the acquisition of territory by war” and that meant that there could be no justification for annexation of territory on the Arab side of the 1967 line merely because it had been conquered in the 1967 war.”

The principle of the inadmissibility of acquisition of territory by war is a basic principle of the UN charter and more fundamental than any resolution. It is not conditioned on whether the country in question was attacking or defending, or on the status of the land acquired.

Almost from the beginning, Western diplomats privately agreed that Israel was not going back to the Green Line. This holds true to this day. Indeed, as stated by George W. Bush in his letter to Ariel Sharon and, the old border will be modified. Even Arab diplomats acknowledge this fact. Ayalon’s aim, therefore, is not for this notion to be accepted, but rather for the terms of this acceptance to change so that Israel’s concerns are the determining factor, unmitigated by the legitimate needs of the Palestinians.

The debate over whether 242 requires Israel to withdraw from all the territories, or only some of them, has been raging for years. But Ayalon’s implication that the lack of clarity on that point permits Israel to settle in the West Bank and thereby change the diplomatic context in which negotiations take place doesn’t hold water. Simple logic dictates that until the status of the land in question is resolved, the status quo on the ground must be maintained, not altered to favor the party in control of the land.

The question is why is Ayalon pursuing this argument so strongly now. The reason he gives is that as long as the hegemonic idea is that Israel is “…occupying stolen land and that the Palestinians are the only party with national, legal and historic rights”, negotiations are impossible. In other words, the only terms of negotiation for Israel is what land of that which Israel is entirely entitled to will Israel magnanimously grant the Palestinians in exchange for peace.

Ayalon’s real point is to contend that Israel has every right to build its settlements anywhere in the West Bank. Israel’s security concerns alone will dictate the final boundaries between it and whatever territory it will grant that the Palestinians can call a “state” if they so choose.

The reason why Ayalon is taking this initiative is to attack the red line Palestinian President Mahmoud Abbas has drawn at the 1967 borders. Abbas’ position, which is accepted by the Obama Administration, is that the basis for negotiations are those borders. Equitable land swaps may be discussed to address Israel’s security concerns, but they must be balanced against the need for viability for a future Palestinian state.

That is not just Abbas’ position, and not merely accepted by Obama. It has been the primary concept of borders undergirding all Israeli-Palestinian peace negotiations since the Madrid Conference of 1991. It is, in fact, the very basis of a two-state solution, and this is what Ayalon is actually taking aim at.

The avenue he is pursuing to do this is to legitimize the settlement enterprise. Ayalon conveniently ignores the fact that much of the land on which settlements currently stand was privately owned and appropriated by the Israeli government, usually, under the pretext of military necessity. Peace Now and B’Tselem exposed the theft of private land for the Ofra settlement, and a recent report by B’Tselem and Bimkom demonstrated how this happened around Ma’ale Adumim.

Israeli settlements should never have been built in the first place. The unusual conditions of this occupation (even Ariel Sharon called it an “occupation”) do not mean that all principles are nullified. As a practical matter, the settlements have made peace much more difficult to attain, and each new living unit increases that difficulty. Moreover, the principles of an occupying power not transferring its civilians into occupied territory and that power not doing anything to permanently alter the conditions on the ground are clearly applicable, even to this territory which was not the recognized sovereign territory of any other state at the time of its capture.

Whether one wishes to call the West Bank and East Jerusalem “occupied” or “disputed” does make an ideological difference in the war of ideas, but politically Israel’s responsibilities towards these territories don’t change. If there is to be any hope for a peaceful resolution, Israel will have to withdraw from settlements, and do so to a sufficient degree that a viable Palestinian state can be created and sustain itself. Anything less than that dooms Israel and the Palestinians to perpetual conflict. Which, apparently, is what Daniel Ayalon truly desires.