http://jcpa.org/why-israeli-rule-in-the-west-bank-is-legal-under-international-law/

An interview with Professor Eugene Kontorovich by Sarah Haetzni-Cohen

A version of this interview first appeared in Hebrew in Makor Rishon on March 23, 2018.

Professor Eugene Kontorovich is the head of the international law department of the Kohelet Policy Forum and a fellow of the Jerusalem Center for Public Affairs. He teaches at the Law Faculty of Northwestern University. Born in Ukraine, Professor Kontorovich spent most of his adult life in the United States. Several years ago, he moved to Israel with his family.

Q: From the viewpoint of international law, how can the legal position of Judea and Samaria [West Bank] be defined?

Professor Kontorovich: The question that should be asked is: What were the borders of Israel when it was first established? What defines this is the borders at the moment of independence. Israel was created, like most countries, after a successful war where no one came to its aid. In international law, there is a clear rule regarding the establishment of new countries: the country’s borders are determined in accordance with the borders of the previous political entity in that area. So what was here before? The British Mandate. And what were the borders of the British Mandate? From the Mediterranean Sea to the Jordan River.

The UN General Assembly’s declaration on November 29, 1947, was a recommendation for partition rather than an operative resolution. What actually defined the situation was what the Mandate did, and it neither accepted the recommendations nor put them into force. During the War of Independence, Jordan and Egypt conquered territories from Israel illegally, and it was almost universally agreed that neither Jordan nor Egypt had any legitimate claim of sovereignty over Judea and Samaria or Gaza. But Israel did. When Israel liberated the territories in 1967, it renewed its control over lands that it had sovereignty over based on the Mandatory borders.

Today, the prevalent approach is that even though the land did not belong to Jordan, it was “Jordanian enough,” and therefore the laws of occupation and the Geneva Convention apply to it. This is nonsense, because even if we assumed this was correct, the Geneva Convention no longer applies when there is a peace treaty, and there has been a peace treaty with Jordan since 1994. It has to be either one or the other: Either it belonged to Israel all the time and Israel liberated its own territory in 1967, and you can’t occupy your own territory. Alternatively, it was “Jordanian enough” in 1967 for the laws of occupation to apply. In that case, the peace treaty with Jordan nullified the Geneva Convention. The Oslo Accords even took it a step further and granted local self-government.

Q: Some claim that even if we did not occupy land, we are occupying people.

Kontorovich: People try to put these two things together, but there is no connection between them. If someone wants to talk about ethics, let’s talk about ethics, not international law. Why do people want to discuss international law when they are essentially talking about ethics? Because ethics are subjective, but the law was created to bring people to agree on the rules in a situation where they have different ethical positions.

These are not occupied territories. These are territories over which Israel has sovereign claims. There are many examples in the world of cases where a nation has sovereignty, but it provides a different kind of governing arrangement. In our case, at the moment, it’s military rule. One example is American Samoa. There, they have their own administration, but without independence. The residents don’t have citizenship, and they can’t vote in U.S. elections even if they move to New York.

Kontorovich reiterates what he believes is a critical point. The Palestinians have the right to vote in Palestinian elections, and self-government. Yet we act as if Oslo never occurred.

Kontorovich: The basic philosophy of democracy – and now we are no longer talking about legal claims because there is no such thing as a right to representative democracy in international law – is that people must have representation in a government that decides how their lives will look. In America, there is a principle: “No taxation without representation.” Does Israel levy taxes on the Palestinians? No. Sometimes it’s the opposite. We pay for them out of our own pockets. Do we issue them traffic tickets or impose family laws upon them? Not at all. All we do is govern from a security point of view, and it is not an issue of democracy.

In international law, a people has the right to self-determination, but that does not mean an independent state. There are thousands of ethnic groups around the world that want an independent state – Catalans, Kurds, or the Tamils in Sri Lanka. International law has told each one of them, “no.” The Catalans have the right to vote, but the Spanish government can more or less do whatever it wants to them. It can tax them, decide that their elections are not legal, and dissolve their government. We, on the other hand, can’t do that in Area A [of the Palestinian Authority]. Our involvement in Area A is only security, and that’s completely legitimate. We don’t tax them. We only collect taxes for them, which happens in many other places around the world. It’s for sure not “ruling over them.”

One of the principles of self-determination is that a nation is responsible for its decisions. If the Palestinians say they are a nation and Mahmoud Abbas is their leader, they need to bear the consequences of his actions. When a people’s self-determination representative says “no” to internationally-backed offers of full independent statehood – which very few peoples are even lucky enough to be offered – this means they accept the alternative, which is the status quo.  Imagine what the Kurds would do if the international community recognized a state for them in northern Iraq only. This is way beyond what they have ever imagined. It’s very rare to be offered a state with so much international support. If the Palestinians allow themselves to refuse, they have to take the consequences. These consequences are the alternatives to a state.

Q: What’s the next stage?

Kontorovich: The basic idea is a Palestinian self-government within a defined territory. They already have something like this today. It doesn’t mean they can put us in danger, but they can govern themselves. The second stage is the dissolution of Israel’s military rule in Judea and Samaria. Some of the area would be under regular Israeli law (and the Palestinians living there would be offered citizenship). We should not use the term “annexation,” because when you annex something, it is not yours. “Imposing sovereignty” is also not an exact definition because Israel’s sovereignty today in Judea and Samaria is expressed through military rule, which is something that is possible and acceptable.

We mustn’t say that we don’t claim sovereignty over Areas A and B, but we are simply choosing a different method of government in order to maximize the self-determination of the residents in these areas. This type of government grants autonomy that does not include voting in Israeli general elections. It exists in other places around the world. One example of this is the Isle of Man. They don’t vote in British Parliamentary elections, but in elections for their own self-government. However, all of their foreign policies and defense issues are handled by the United Kingdom. Gaza needs to be treated differently. From a legal point of view, it could be said that the Palestinians already have a state in Gaza.

Some Principles to Follow

I asked Kontorovich to describe a few rules of thumb, some dos and don’ts, and significant principles. They are as follows:

1. You need to be very careful with the terminology you use. Judea and Samaria are not “occupied territories,” but if we keep calling them that, this is an understanding that will stick. We should also not use on any level – professional, legal, or political – the words “laws of occupation.” Furthermore, Israel needs to stop applying the humanitarian aspects of the Geneva Convention – something which Israel has done voluntarily, beyond the letter of the law. There is no legal requirement to do this.
2. If we want to say that we have any claim on the land, we should go ahead and show it. It doesn’t mean we have to ultimately keep 100 percent of everything. But we need to clarify our claim from the legal point of view. If we claim that Judea and Samaria are occupied, then we have no basis for being in Jerusalem because there is no legal difference. We think that we can choose and everyone will accept it. What’s the basic demand of the Palestinians? They want Judea, Samaria, and more. Why? Because if a thief comes and steals your property, you don’t just thank him when he gives it back to you.
3. We need to understand that the Israeli government’s position will always be the most pro-Israel one available. No one in the entire world is going to be to the right of us on our claims – thus our claims set the outside parameters of international discussion. We always want to be logical and practical, but we miss this dynamic and then complain that it’s not fair.
4. The Trump administration is an opportunity that may never repeat itself. He has thrown the old paradigms out of the window, and fulfilled promises. He understands that whoever says “no” also has to take responsibility. We have to be ready to present a clear vision after his present diplomatic efforts fail.
5. Our vision must be clear and principled: Israeli law in one part of the territory and Palestinian self-government in the other. It is not a good idea to give too many details about where sovereignty will lie or it will just hold us back in the future.
6. The situation is neither black nor white – two states or one. No one takes any notice of what lies in between. There are many such examples in the world. Why would we think that one of the most complicated places would not require a more complex and nuanced solution?
7. We are constantly on the defensive and in a state of fear. We have forgotten the rules of diplomacy: Don’t start the battle by showing how much you are afraid, neither defensively, economically, or demographically.
8. The government often chooses an unclear, ambiguous policy toward Judea and Samaria, out of fear of international reaction. This reaction is not necessarily connected to what Israel does. There is a basic appetite for criticism of Israel. Just as we never get international credit for making concessions, there isn’t always a price for every activist decision that we make. Unfortunately, we have shown that we are under pressure and prepared to give in, and so they focus on us.
9. The Palestinians are the only nation that ever said “no” to an offer of independence with international support. We must repeatedly point this out.
10. People say that the status quo is not stable, but in fact the status quo here is the most stable in the entire Middle East. A final status plan needs to look like the status quo – only official, organized, and not temporary.

In conclusion, Kontorovich wanted to give our readers the following message:

Don’t believe the Middle East experts and professionals on the peace process. Anyone who served in the State Department for the past 30 years is thought of as an expert on the peace process. But he also failed consistently in bringing peace, and you should only take him with a grain of salt. These experts did not anticipate any of the most significant events that happened in the Middle East, including the Arab Spring. They thought that it would all end with democracy, but look what’s happening today. They’ve already failed, so why believe them?

Eugene Kontorovich is a Professor at Northwestern University School of Law whose research spans the fields of constitutional law, international law, and law and economics. He is an expert in international jurisdiction and criminal law, and has written extensively about the legal aspects of the Israeli-Arab conflict.