Late last month, United States Ambassador to Israel David Friedman raised eyebrows when he commented that Israel only occupies two percent of the West Bank, after earlier describing Israel’s control of the area as an “alleged occupation” (italics my own). Of course, such sentiment – that Israel’s presence east of the Green Line is not a military occupation – is common among many segments on the Israeli and American political right. It bears examining why so many reject the terminology that has underscored American foreign policy, international opinion, and even Israeli High Court rulings since 1967.
Ambassador Friedman’s comments are not the first to cast doubt on the West Bank’s occupied status. The 2012 Levy Report, commissioned by Prime Minister Benjamin Netanyahu, argued for the legalization of settlement outposts on the basis that the territories are not occupied. Meanwhile, Education Minister Naftali Bennett and others have popularized the slogan, “you can’t occupy your homeland.” Since 1967, some Israeli officials and their supporters have employed a litany of euphemisms in place of occupation: administered territories, disputed territories, and so on.
Why do some object so vehemently to the term “occupation,” as it applies to the West Bank today? The Israeli right is not above rhetorically separating Israel and the West Bank. After all, marking the territories as “disputed” still distinguishes them from Tel Aviv or Haifa – what some describe as “Israel proper.” The actual rationale centers on several misconceptions about the term occupation and its status under international law.
“‘Occupation’ describes an inherently and uniquely evil exercise”
The first such fallacy is the belief that occupation represents an inherently or uniquely evil action. This belief is expressed in the Levy Report itself. The document draws heavily on an interpretation of the Fourth Geneva Convention (1949), that it “was intended to prevent the inhumane atrocities carried out by the Nazis, e.g. the massive transfer of people into conquered territory for the purpose of extermination, slave labor or colonization.”
The report’s authors go on to affirm, “we are not convinced that an analogy may be drawn between this legal provision and those who chose to settle in Judea and Samaria [the West Bank].” To be sure, no analogy may be usefully or accurately drawn between the crimes of the Nazis and any man-made catastrophe hence. Nothing to scale with the events of 1939-45 has taken place in the decades following, but this does not mean there have been no military occupations since. In fact, an earlier body of international law governing occupation emerged with the Hague Convention of 1907, before both world wars.
It is certainly reasonable that a Jewish state would not want to be associated with Naziism. However, the Fourth Geneva Convention was not adopted to apply retroactively to the Second World War. Rather, they aimed to ensure that future occupations were carried out as humanely as possible. This is not a specifically Israeli behavior. Laws of belligerent occupation outline the occupying power’s legal responsibility to its provisional charges until the final status of the occupied territory is determined.
Describing Armenian nationalists’ similar discomfort with the term occupation as applied to Nagorno Karabakh, the late Johanna Popjanevski clearly articulates why international law on occupation does not represent a value judgment:
“The hesitation in the West to use the term occupation also appears to be linked to its politicized and stigmatized nature … Thus, for states with a large Armenian diaspora and lobby, including France and the USA, using the term occupation is particularly sensitive. In reality, this notion is a misinterpretation of the nature of the law on occupation. The main purpose for declaring a territory occupied is to establish a legal regime during the phase of occupation, aimed mainly at protecting the rights of the individuals on the territory. As such, the occupying force is subject to a number of obligations under international humanitarian law, such as protecting the individuals under occupation and refraining from annexation, exploiting resources, and property, as well as altering the demographics of the territory.”
None of this is to sanitize the conduct of a military occupation or to suggest that it is a desirable situation. However, the drafters of international law on occupation recognized that, almost universally, armed conflict entails the temporary seizure of territory.
“‘Occupation’ denies Jewish historical, cultural, and religious ties to the West Bank”
Opponents of the term “occupation” often invoke the importance of many West Bank sites to Jewish history, both biblical and relatively recent. This is the crux of Naftali Bennett’s claim that “you can’t occupy your own home.” If the West Bank (or Judea and Samaria, as most Israelis refer to the area) is part of the ancient Jewish homeland, then the Jewish Israeli state cannot be an occupier in it.
As with the objection to “occupation” on the grounds of Nazi associations (per the Levy Report), this reading of the term allows popular imagination to overtake legal reality. A country can be an occupying power in a territory where it shares deep historic roots. Here again, the example of Armenia and Nagorno Karabakh is instructive.
After the hot phase of the Armenia-Azerbaijan conflict concluded in 1994, Armenian forces occupied Nagorno Karabakh and several outlying districts from Azerbaijan. The territories were de jure not part of the Armenian state. Even though Armenian troops did ethnically cleanse the area of Azerbaijanis during the conflict, the region had already boasted an Armenian majority before hostilities broke out. Few outside of Baku would deny that Armenians possess a concrete historical link to Nagorno Karabakh, but it would also be untrue to say the land is not occupied.
“‘Occupation’ is meant to be temporary”
With Israel’s occupation of the West Bank entering its fifth decade, it is easy to forget this aspect. As Popjanevski wrote, occupation represents a “phase” of a conflict. An occupied people is not intended to remain in political limbo for perpetuity. Ultimately, the occupying power withdraws voluntarily under a negotiated arrangement or because it is expelled by the territory’s inhabitants.
The prospect that Israel might one day leave the occupied territories is anathema to many on the right who consider the West Bank to be the Jewish people’s sacred birthright. Indeed, many also abhor the term “settlement:” it conjures up images of temporary structures, as opposed to the reality that many Israeli settlements are built-up suburbs of Jerusalem and Tel Aviv. Ideological settlers may object to the idea that their presence in the West Bank is restricted in any way: by geography, or eventual political chronology. This is the same reason the leadership of the West Bank settlement of Efrat refuses to erect a security fence: if a fence becomes a border, the town’s expansion, like the occupation, could be finite.
Each of the above lines of thought represents a desire to normalize Israel’s occupation of the West Bank. Israel’s control of the territories is normal only in the sense that there are other ongoing occupations today, there have been in the past, and future armed conflict will likely entail such events in the future.
However, no euphemism can explain away the abnormal and undemocratic relationship between occupier and occupied. Lack of political will in Jerusalem, Palestinian intransigence, American disinterest, and other conditions may dictate that Israel remains in the West Bank for years to come. However, Israeli and U.S. officials should never approach something meant to be a provisional action as being good for perpetuity, and they should not obscure uncomfortable reality by employing softer rhetoric.