As I’ve discussed, in his speech on Thursday President Obama spoke words (not substantively retracted in his speech on Sunday to AIPAC) that convey a shocking indifference to Israel’s security needs, namely:
The borders of Israel and Palestine should be based on the 1967 lines with mutually agreed swaps….The full and phased withdrawal of Israeli military forces should be coordinated with the assumption of Palestinian security responsibility in a sovereign, nonmilitarized state[.]
Some commentators have claimed that the phrase “agreed swaps” is reassuring and—as Obama himself now claims—consistent with previous U.S. positions. But particularly in the context of calling for a “full and phased withdrawal of Israeli military forces,” it is anything but.
Clearly, with its army having totally withdrawn from the West Bank, the most Israel could feasibly retain are some communities just over the 1967 border. And “swaps” means that even for these, Israel would have to give up land within that border, i.e., from pre-1967 Israel. In other words, in Obama’s dispensation, Israel has no real right to any of the land in the West Bank, or Judea and Samaria—the historical cradle of the Jewish people, which Israel conquered in a defensive war of survival in June 1967.
That position directly contradicts UN Security Council Resolution 242 from that year—which, as Dore Gold noted on Saturday in the Wall Street Journal, “became the only agreed basis of all Arab-Israeli peace agreements.” 242 famously stipulated the “withdrawal of Israel armed forces from territories occupied in the recent conflict,” not “from the territories” or “from all territories.” The omission of “the” or “all” reflected a hard-won victory by American and British diplomats over the Arab and Soviet bloc, which fought to include one of those words and thereby force the Jewish state back to indefensible borders.
And that omission means, notwithstanding Obama’s attempt to fudge the record in his AIPAC speech, that Israel would not owe the other side any swaps for retaining whatever parts of Judea and Samaria it would retain.
In flying in the face of Resolution 242, then, Obama’s demand of Israel in his initial, still unaltered speech on Thursday can reasonably be characterized as a violation of international law. And it violates it in another sense as well. As Steven M. Schwebel, the American international-law expert and former president of the International Court of Justice, wrote in the aftermath of the June 1967 or Six Day War:
(a) a state [Israel] acting in lawful exercise of its right of self-defense may seize and occupy foreign territory as long as such seizure and occupation are necessary to its self-defense;
(b) as a condition of its withdrawal from such territory, that State may require the institution of security measures reasonably designed to ensure that that territory shall not again be used to mount a threat or use of force against it of such a nature as to justify exercise of self-defense;
© Where the prior holder of territory had seized that territory unlawfully [Jordan], the state which subsequently takes that territory in the lawful exercise of self-defense [Israel] has, against that prior holder, better title.
[A]s between Israel, acting defensively in 1948 and 1967, on the one hand, and her Arab neighbors, acting aggressively, in 1948 and 1967, on the other, Israel has the better title in the territory of what was Palestine[.]
It stands to reason as well: a norm of restoring all land to aggressors would remove any deterrent against aggression. Indeed, the historical practice has been to punish aggressors hard. For instance, the 1815 Congress of Vienna imposed harsh terms on France for its aggression in the Napoleonic Wars. The 1919 Treaty of Versailles dealt severely with Germany for its role in World War I. After World War II, Germany and Japan were occupied and demilitarized; millions of ethnic Germans were expelled by Poland, Russia, Czechoslovakia, and Yugoslavia, and top Nazis were tried and executed at Nuremberg.
The 1948 and 1967 Arab wars against Israel, then—to which can be added the Yom Kippur War of 1973—form an exception in that the thrust of international diplomacy has been to restore land to the aggressors. This is true even though, unquestionably in the 1948 and 1967 cases and controversially in the 1973 case, the aim of the wars on the Arabs’ part was Israel’s annihilation.
Israel itself, to be sure, at different times and to different degrees, has sought to or actually restored lands out of a hope for peace and/or an aversion to ruling Arab populations. But when Israel has balked, asked for time, or acted on its historical rights or security needs in some of the lands in question (particularly, and most relevantly at present, the West Bank and the Golan Heights), international bodies—particularly European ones and the United Nations—have uniformly reacted with accusations and pressure, as if the Arab aggressors’ rights to the land are a foregone conclusion and any Israeli expansion beyond its death-trap 1967 borders is gravely immoral.
The one international player that has accorded Israel somewhat more understanding for its security needs—while, lamentably, showing the same contempt for its religious and historical attachments—is the United States. The record is long and complex, but President George W. Bush’s April 2004 letter to Prime Minister Ariel Sharon is the most recent major, official example of this somewhat greater understanding. In its key passage Bush wrote:
As part of a final [Israeli-Palestinian] peace settlement, Israel must have secure and recognized borders, which should emerge from negotiations between the parties in accordance with UNSC Resolutions 242 and 338. In light of new realities on the ground, including already existing major Israeli population centers, it is unrealistic to expect that the outcome of final status negotiations will be a full and complete return to the armistice lines of 1949 [i.e., the 1967 borders], and all previous efforts to negotiate a two-state solution have reached the same conclusion[.]
The difference from the previously quoted words by Obama—who, indeed, despite its overwhelming endorsement at the time by both houses of Congress, has consigned the Bush letter to oblivion—is stark. As noted, combining “1967 lines” with “agreed swaps” negates any Israeli right to any of the land, and the reference to a “full” Israeli military withdrawal should establish that point incontrovertibly for anyone who doubts it. The Bush formulation could lead to Israel retaining both settlement blocs and security zones; the Obama formulation allows Israel neither.
Obama’s stance, then, is the opposite of what both law and reason dictate: the aggressor gets back all that it lost, and the aggressed-against party finds itself right back in the nonviable borders that invited the aggression in the first place. The fact that Jordan, not the Palestinians as a corporate body, was the aggressor from the West Bank in 1967 does not change the fact that the Palestinians have continued to identify with Arab-Muslim annihilatory aggression against Israel, the recent Fatah-Hamas pact being only a further striking example.
That Obama takes this stance does not, of course, mean Israel will comply with his vision. It does underline the fact that, at a time when Israel faces grave, unprecedented challenges—from ongoing nuclearization in Tehran to the Palestinians’ upcoming statehood push in New York, and a great deal in between—there is a president in the White House whose instincts gravitate to Israel’s enemies. And it means that all those who seek Israel’s destruction through, among other things, distortions of justice and perversions of morality have gotten another big boost.