Showing a remarkably Israeli insensitivity to international public opinion—or is it a charmingly Zionist assertion of independence?—the Levy Committee, chaired by the retired Israeli Supreme Court Justice Edmond Levy, has declared settlements legal and what is broadly called the “occupation” of the West Bank not a classic occupation under international law. The predictable Pavlovian reaction has Right Wing settlers calling for more settlement and Is-crits internally and externally condemning these rapacious, racist, imperialist colonialists.
Following the script, here on Open Zion Hussein Ibish called the Levy Report “The Anti-Balfour Declaration.” After making the subtle, clever argument that the Israeli government has to decide whether it wants to use the legal status of occupier to justify military measures and treat them as temporary or treat the territories as permanent extensions of Israel, with all the resulting democratic and demographic headaches, Ibish succumbs to the kind of moralistic rhetorical exaggeration that makes discussions about Israel and Palestine so combustible. Brandishing the A-word, apartheid, he writes: “When systematic ethnic discrimination is intended to be maintained rather than temporary, it is a crime under international law. Although Israel is not a signatory to the treaty, this is how the Statute of Rome, which outlines the work of the International Criminal Court, defines Apartheid.”
Ibish links to the Rome Statute—sounds pretty authoritative. But when I pursued the link to Article 7 2 (h), I discovered that "The crime of apartheid" means inhumane acts of a character similar to those referred to in paragraph 1, committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime.” Apartheid was an abhorrent system of racial discrimination which is not the same as ethnic discrimination. Moreover, the Israel-Palestine mess is not at all about race, much less about ethnic issues, and much more about a national conflict.
Palestinians see themselves as a separate nation. Most Israelis post-Oslo learned to acknowledge that national identity. The separation on the West Bank acknowledges Palestinians’ distinct national identity, mirrors their own desire to be apart from Israel, and often reflects security complexities. Moreover, many of us who endorse a two-state solution do so precisely because we respect those national differences.
So, as everyone mans—persons?—their usual battle stations, it is worth commenting on the toxicity of the debate and how the rigid categories and hysterical terms so many use to describe the Middle East threaten a two-state solution. Sweeping generalizations treating all the settlements as one, rigid binary categories like “legal” or “illegal,” even the word “occupation” implying that there is a clear provenance to this oft-conquered and redrawn land, are all obstacles to peace and reconciliation—as are inaccurate, inflammatory cries of “racism” and “apartheid.” They go to the ontological—Israel’s essential character—rather than the transactional—Israel’s actions.
Distinguishing between some settlements and others, rather than speaking about them as “the” settlements, explains why a thriving suburb so close to Jerusalem like Gush Etzion, with its tragic history of being destroyed by Jordanians on the eve of Israel’s Declaration in 1948, is well within the “peace consensus,” consistently supported by at least 70 percent of Israelis, as opposed to a hilltop outpost, conceived in revenge, surrounded by Palestinians. If critics drop words like “legal” or “illegal”—especially considering the British Mandate of 1922 which was never abrogated but allowed Jews to settle in the area of historic Palestine between the Jordan and the Mediterranean—they can stop thinking of Israel as an international criminal and view the country as a potential peace partner. If we can end the occupation preoccupation, with its harsh, inflexible reading of the ever-changing boundaries in the Middle East, we can accept land swaps, improvise, and focus on present demographic realities rather than past claims or slights.
In The Honor Code: How Moral Revolutions Happen, the modern philosopher Kwame Anthony Appiah explains that we frequently underestimate the importance of honor—and dishonor—in facilitating reform and making the world a better place. Those who have been systematically delegitimizing Israel with false charges of racism and condemning “the Occupation” as illegal should acknowledge that dishonoring Israel makes compromise less likely—countries and individuals tend to hunker down not take expansive risks when under assault. In fact, Israel proved most willing to compromise in the early 1990s, after the UN repealed its odious Zionism is racism resolution in 1991.
While I believe that Israel’s control over the West Bank has legal and historical validity, the Levy Report argument is distracting and incendiary. I start by assuming that in the area of historic Palestine—however you define it—borders shifted and populations changed. Given that two peoples are in love with the same land, they must negotiate and compromise, aware of their history but not handcuffed by it, acknowledging past slights without adding to them, while concentrating on pragmatic demographic and geographic realities.
