This July, Pete Buttigieg, who for reasons I fail to grasp, has been described as one of the most pro-Israel candidates in the Democratic field, signaled that on Israel, he had moved farther to the left. He tweeted: “The occupation has to end.” Anti-Israel groups were ecstatic.
What we have here is a failure by Buttigieg to understand the legal status of the West Bank. The word “occupation” suggests that Israel has no legal claim to the West Bank; it is merely to be seen as a military occupier, like the Americans in Occupied Japan or Occupied Germany. But Israel’s legal claim is not that of a military occupier, who remains for a few years, and once having rearranged the politics of a defeated country, leaves. That legal claim to the West Bank is based on the Mandate for Palestine itself. Buttigieg should look at the Mandate maps. He may not realize – he is hardly alone – that the West Bank (to use the term the Jordanians affixed to that area in 1949 so as to avoid the too-Jewish “Judea and Samaria”) was included, by the League of Nations’ Mandates Commission, in the territory that was assigned to Mandatory Palestine, thus part of the land that was to become the Jewish National Home and, subsequently, the State of Israel. This territory included all of historic Palestine west of the river Jordan.
Buttigieg should study the provisions of the Mandate, especially Articles 4 and 6, where he will find that the Mandatory authority solemnly undertakes to facilitate Jewish immigration into Palestine and to encourage “close settlement by Jews on the land.” If Buttigieg thinks that those clauses are without continued relevance, as he likely does, he should consult Article 80 (known as “the Jewish People’s clause”) of the U.N. Charter, which preserves intact all the rights granted to Jews under the Mandate for Palestine, even after the Mandate’s expiry on May 14-15, 1948. Under this provision of international law (the Charter is an international treaty), Jewish rights to Palestine and the Land of Israel were not to be altered in any way unless there had been an intervening trusteeship agreement between the states or parties concerned, which would have converted the Mandate into a trusteeship or trust territory. There was no such intervening trusteeship.
When Jordan won the West Bank in the 1948-49 war, Israel’s legal right to that territory was not extinguished. Nor did Jordan create for itself, by seizing it in a war of aggression, a legal right to that land. Jordan was only the military “occupier” of the West Bank from 1949 to 1967. Then, after the Six-Day War, Israel came into possession of the West Bank. and could then enforce its preexisting legal claim under the Mandate.
At the same time, Israel has a separate and distinct claim to much of the West Bank, based on U.N. Resolution 242, by which Israel could hold onto territories it had won if they were necessary for it to have “secure and recognizable boundaries,” or as another phrase often used put it, “secure and defensible borders.” Israel had the right to determine what territory it needed to be “secure.” So far it has given up 95% of the territory it had won in 1967; it gave back the entire Sinai to Egypt, for the second time (the first time was in 1956) and gave up Gaza in 2005 to the “Palestinians.” After the Battle of Gaza in June, 2007 between Fatah and Hamas, Hamas won decisively and has ruled – and misruled – Gaza ever since.
It bears repeating again and again: the West Bank, by the terms of the Mandate, was included in the territory that was to be the Jewish national home (which became Israel). Jordan was its military occupant from 1949 to 1967, not its legal claimant. Furthermore, according to the text of U.N. Resolution 242, Israel has a right to retain certain territories taken in the Six-Day War, that it needs if it is to have “secure and recognizable boundaries.” Shortly after the Six-Day War, President Johnson had the Joint Chiefs send a delegation to study the security situation in Israel. In the report they issued, they concluded that Israel would necessarily have to retain the Golan Heights and much of the West Bank.
Were Israel forced to give up the entire West Bank – which is what Buttigieg’s “The occupation has to end” must mean – Israel would no longer control the Jordan Valley or the Judean hills. The traditional invasion route from the east would be wide open. Israel would once again be only nine miles wide at its narrowest width, from Qalqilya to the sea, and the country could be cut in two within a matter of hours. That is not a defensible result, in either the legal (see the Mandate for Palestine and U.N. Resolution 242) or the moral sense.
Then there is Buttigieg’s statement about the Golan, criticizing Trump’s recognition of Israel’s annexation, and his insistence that unlike Trump, he did not want to “intervene” in Israeli policies. But by commenting on the annexation, he has intervened on the side of those who oppose the annexation and want the future of the Golan to still be subject to negotiation. He intervenes, that is, to oppose recognizing the annexation that 85% of Israel’s Jews support. When asked about the possibility, were he to become president, of undoing Trump’s move, Buttigieg replied that he will not “make any declarations now about the future of that status other than to say that on my watch it would not have come as part of the intervention of [sic] Israeli [politics].” To me, that sounds as if he might indeed undo Trump’s recognition of the Golan annexation; that he considers it to be “occupied territory,” and he’s now tweeting “the occupation has to end.” Does he really mean to say that he wants Israel to be pushed back to the pre-1967 lines, that is, the armistice lines of 1949, which Abba Eban once described as “the lines of Auschwitz”? Does he not think we non-Israelis, in the case of the Golan, should defer to the Israeli military’s judgment that it is critical to Israel’s defense?
Does Buttigieg have an opinion on Brexit? If he expresses it, is he not “intervening” in British politics? If he declares himself a supporter of Juan Guaido, is he not “intervening” in Venezuelan politics? If he denounces the crackdown on Hong Kong protesters, is he not “intervening” in Chinese politics? Every foreign policy statement he – or anyone else — makes is an “intervention” in some other country’s politics. But the only “intervention” that seems to exercise him is that which recognizes an annexation which was carried out nearly 40 years ago, which is supported by 85% of Israeli Jews, and which reflects Israel’s determination to create “secure” borders, as it is fully entitled to do under U.N. Resolution 242.
So here’s a homework assignment for Pete Buttigieg:
1. Read the Mandate for Palestine, paying special attention to the Preamble, and Articles 4 and 6.
2. Study the Mandate for Palestine maps, showing the territory assigned to the Mandate after all the territory east of the Jordan River had been unilaterally closed to Jewish immigration by the British.
3. Read Article 80 of the U.N. Charter.
4. Read the text of U.N. Resolution 242.
5. Read the discussion of the meaning of U.N. Resolution 242, written by its author, Lord Caradon.
6. Read the report on territorial adjustments that would be required to meet Israel’s security needs, as prepared by staff members of the U.S. Joint Chiefs, who visited Israel after the Six-Day War.
FOR EXTRA CREDIT:
Read Israel and Palestine: An Assault on the Law of Nations, by the celebrated Australian jurist Julius Stone.
Let us know, after that bit of homework – it’s always fun to learn new things – if you still want to stand by that tweet “the occupation has to end,” or if the knowledge you’ve acquired will lead, as I allow myself to believe it will, to quite a different understanding.