V. Myths that Need to Become Detritus

The future will barely, if at all, resemble the picture of peace between the Palestinians and the Israelis that I drew. Even more improbable will be the stipulation of the conditions that will bring that peace about. But that is not why I wrote those two pieces. I am not a seer. I am not a diviner. I am not a futurologist. I am not a necromancer. I am not a time traveler from the future who has returned to tell you how everything unfolded. I am not a prophet. I am not a forecaster even as I engaged in prognostication. And I am definitely not a fantasist, even if my portraits may have seemed to come from an exercise in fabulism.

That is no accident. I believe that pious illusions are the catalysts of change. In fact, we will not survive without creating sacred illusions. The corollary is not that we recall the past, but that we create divine illusions that allow us to forget the past and the horrors we have passed through and literally studied to death. God is not He who is, but He who shall be. The real reason for studying the past is to become free of its suffocating embrace. Anyone who repeats the past over and over and over again is in a state of madness. However, time does heal. Or, at least, if it does not, we survive only as the living dead.

I did want to present an imaginary alternative to the despair and dispirited prevailing emotion that permeates virtually any discussion of the Israeli-Palestinian conflict. Many believe that we study history so that we do not repeat the mistakes of the past. Hence, the slogan of George Santayana: “Those who cannot remember the past are condemned to repeat it.” But I believe that we study history precisely to see how much we do repeat the mistakes of the past. And this happens even though we immerse ourselves in that past.

We do need pious illusions to guide us into the future and away from a dysfunctional past. And we do so by exploring and exploding profane illusions. “To blindly and blithely parrot what one knows to be misguided is not to make oneself relevant. It is to make oneself redundant.” This was written by Robert Malley, President Joe Biden’s new special envoy to Iran. That saying is even more applicable to the Israeli-Palestinian conflict than to America’s dealing with Iran. What do we know to be misguided in considering the Israeli-Palestinian conflict that makes what we say and claim sound hollow? They are propositions in common parlance, widely accepted beliefs which, upon any close critical examination, are easily seen to be unworthy of our time and energy defending let alone making them the foundation for our policies in the region.

What are some of these profane illusions?

Asserting that the two-state solution is dead. But it is not dead. It is very much alive. It breathes. It is the foundation of a resolution held by the majority of both Jews and Palestinians. What is alive is the belief that a resolution to the Israeli-Palestinian conflict will entail one predominately Jewish polity and at least one Palestinian polity between the Mediterranean Sea and the Jordan River. What is dead is a two-state solution based on the Green armistice line that divided the parties at the end of the 1967 Six Day War. It would be very difficult to find a Jewish Israeli who believed that the Green Line has any relevance in resolving the conflict. Even Palestinians, who may insist on 1967 borders in negotiations, do not really believe that these will provide the dividing line between the polities. Otherwise, they would never have signed the Oslo Accords in 1993 and 1995.

Israel agreed to trade land for peace, not all land captured in the Six Day War. That land would go to one or two Palestinian political entities. Palestinians through the Palestine Liberation Organization (PLO) agreed that there would be a predominately Jewish state abutting the Mediterranean Sea. The principle of partition had been accepted by both sides. But not by Hamas which became the ruling Palestinian authority in Gaza. The issue that remained entailed defining the eastern border between the two polities. The borders around Gaza had already been determined, but only by the Israelis. The governing authority in Gaza still rejected any recognition of Israel as a state, and, therefore, the borders around Gaza.  

What was also not resolved was whether there would be one or two Palestinian political entities between the Mediterranean and the Jordan River, Gaza and another in the West Bank, either as a united, a federated or two separate polities. That would be for the Palestinians to decide. However, it became part of the profane illusion that, if they did not agree to a united polity, there could be no peace with Israel. This profane illusion was held by both Israelis and Palestinians.

Another profane illusion widely cited, especially by the peace camp, but by no less an authority than Wikipedia, was that UN Resolutions 242 and 338 called for Israeli withdrawal to its pre-1967 borders. But that is not what Resolution 242 says. Paragraph One specifies two principles: a second one that promises an end to a state of belligerency. But the first refers to “withdrawal of Israeli armed forces from territories occupied in the recent conflict.”

As has been stated many times, the English and definitive version did not say “the” let alone “all the” territories occupied, but only from occupied territories. Clearly the Golan Heights and the Sinai Peninsula were occupied territories since they were territories recognized as belonging to another state. However, since Syria would not and did not sign the armistice agreement, Israel, from its perspective, did not obligate itself to withdraw from the Golan. Further, other than the Sinai and the Golan Heights, not only was the rest of the territory not explicitly defined as occupied, but the reference was deliberately left murky. Hence, the use of equivocation to forge an agreement. Hence the use of that equivocation to perpetuate conflict into the future.

Occupied territory is territory of one state under military occupation by another. Further, by depicting the territory as occupied, the depiction explicitly implies that the authority over that territory will be temporary or provisional by the military of the ruling party. Occupied territory is not annexed territory, but territory held as a card in a negotiated peace agreement. These lands are not necessarily legally “occupied” territory.

The Oslo Accord (Oslo I), signed on 11 September 1993 by both Israeli Prime Minister Yitzhak Rabin and Palestine Liberation Organization (PLO) negotiator Mahmoud Abbas, was the first stage in a peace process. It made reference to Resolutions 224 and 338 as the basis for a peace agreement. That meant an expectation that Israel would withdraw from territories it controlled in exchange for peace with the Palestinians. It did not entail that the Palestinians would have a state of their own in the territory from which Israel withdrew its troops. But Oslo II signed in Taba in 1995 explicitly provided for full Palestinian self-government in Area A of the West Bank, self-government in Area B of the West Bank with shared security arrangements, and continuation of Israeli military control in Area C constituting 60% of the West Bank. In return, the PLO promised to forego any resort to violence to settle outstanding issues, such as the status of East Jerusalem, the final border between the two polities, the one in the West Bank and Israel, the status of the Palestinian polity, and the return of refugees.

The resort to terrorism by Hamas in Gaza, the election of Benjamin Netanyahu who refused to be bound by the Oslo Accords and the resort to the terrorism of the Second Intifada by the Palestinians from 2000 or 2003, depending on when one dates its official start, to 2005, effectively ended support for the Oslo Accords as the basis for peace between Israel and the Palestinians. Hence the three wars with Gaza and the long stalemate with the Palestinian Authority that followed.

As part of the detritus, disagreements over interpretations of the Oslo Accords became fossilized. Were Security Council Resolutions 224 and 338 operational under Chapter 25 of the United Nations charter as Chapter VI or Chapter VII resolutions. If Chapter VI, they were advisory. If Chapter VII, they wee binding on the parties to the agreement. But the wording of the resolution does not offer an answer.

Are both the whole of the West Bank and East Jerusalem “occupied territories”? If they are, without a doubt no Israeli government would have acceded to such a binding commitment, especially since Israel had been the military victor in both the 1967 and the 1973 wars. However, both the United Nations Security Council and the International Court of Justice have both referenced the West Bank as “occupied territory” under international law. UN Security Council Resolution 446 adopted on 22 March 1979 explicitly described “the policy and practices of Israel in establishing settlements in the Palestinian and other Arab territories occupied since 1967 have no legal validity and constitute a serious obstruction to achieving a comprehensive, just and lasting peace in the Middle East.” The UNSC called upon Israel “as the occupying Power, to abide scrupulously by the 1949 Fourth Geneva Convention, to rescind its previous measures and to desist from taking any action which would result in changing the legal status and geographical nature and materially affecting the demographic composition of the Arab territories occupied since 1967, including Jerusalem, and, in particular, not to transfer parts of its own civilian population into the occupied Arab territories.”

The problem is that the resolution does not say whether it is binding under Chapter VII or advisory under Chapter V!. Many interpret the absence of a reference to Chapter VII as, therefore, making it only advisory. Unfortunately, the reference to the Fourth Geneva Convention that deals with the protection of civilians in a war zone does not help. Did the Oslo Accords not redefine the West Bank and Gaza as non-belligerent zones?

All of the above is not intended to clarify the debates over the above and many other disputes over interpretations of binding or non-binding international positions. Rather, the discussion is only intended to make explicit how politics continues to provide the lens under which legal agreements are viewed and interpreted to leave a slew of spurious profane illusions in their wake. Clarification of these issues will not in the end be carried out by international law. Rather, international law will be summoned to support one set of beliefs versus another and will not help foster agreement but only discord and disagreement.

Thus, the need for pious illusions, the need for an imaginary in place of historical references that are used to reinforce one position versus another and become just a rhetorical part of the conflict. Law does not determine the status of a peace agreement. A true peace agreement determines the law agreed upon by both parties to a conflict.

Thus, the debate over the right of return of refugees. I co-authored a book with Elazar Barkan entitled, No Return, No Refuge: Rites and Rights in Minority Repatriation to show that there is no right of return of minorities who are refugees in any conflict. Refugees return only by means of military force or by agreement of the power of the state in charge of the territory. Further, in the case of the Palestinians, the original resolutions did not even recognize a right of return, but those same resolutions over the years created fundamentalist beliefs as close to absolute propositions that insisted that Palestinian refugees had a right of return, not just to the territory form which they fled, but to their actual homes. Moral aspirations easily become converted to purported legal obligations and profane illusions.

The book proved that history was of no assistance in clearing up the debate. For profane illusions ensure that history is constructed to support a claim. And history becomes an important rhetorical tool in fighting the conflict. However, to escape the conflict requires pious illusions in which both sides can become invested. They may not be the pious illusions that I put on offer. Nor will they become pious rather than profane simply when and if both parties buy into them. That buy in generally requires avoiding debates over profane illusions that divide parties and perpetuate a conflict.


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