Photo Credit: Courtesy Kenneth Levin
Kenneth Levin

In a speech to the UN General Assembly on September 20, President Obama declared that Israel should recognize “it cannot permanently occupy and settle Palestinian land.”

If cast here by Obama in starker form than usual, seemingly to stake a legacy position, the statement is yet another rendering of a theme he has returned to on many occasions throughout the eight years of his presidency. But the essence of that theme is a lie: Israel has neither occupied nor settled “Palestinian land.”

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In fact, for all the posturing on the subject by the Obama administration, by the EU and European states, by the UN, and by other nations and international bodies, there is no such thing as “Palestinian land” in international law, or at least there was not before the Oslo process, formally initiated in 1993.

To the contrary, international law supports Jewish claims to the so-called occupied territories. The League of Nations, in creating successor entities to portions of what was formally the Ottoman Empire, established the “Palestine Mandate” for the lands between the Jordan and the Mediterranean and the right of Jews to claim and settle in those lands.

Indeed, it called for “close settlement by Jews on the land, including state lands.” Article 80 of the United Nations charter subsequently preserved the application of the League of Nations Mandate’s stipulations.

One could argue that the Jews’ governmental body, by accepting the 1947 partition plan for Mandate Palestine, essentially gave up any claim to, including the right of settlement in, areas not allotted to it.

However, the Palestinian side rejected the plan and failed to establish a successor government in the areas that were to fall under its control. Subsequently, Judea and Samaria were occupied (with the killing or expulsion of all their Jewish residents) and annexed by Transjordan, which then renamed itself Jordan.

But only two nations, Britain and Pakistan, recognized Jordanian sovereignty in the territories. In 1967, Jordan – as King Hussein himself acknowledged – launched hostilities against Israel, and Israel, in its response, gained control of Judea and Samaria. In effect, whatever claims and rights Israel was prepared to give up in 1947 became irrelevant when no legitimate alternative government of Judea and Samaria emerged, and so the rights enshrined in the Mandate and in Article 80 of the UN charter remain in force.

Also relevant is UN Security Council Resolution 242, adopted unanimously in the wake of the 1967 war. It calls for peace talks between Israel and its neighbors and, rather than Israel’s return to the prewar armistice lines, for the negotiation of new “secure and recognized” boundaries.

Further, the authors of Resolution 242 explicitly stated that the prewar armistice lines made no sense as permanent borders, invited further aggression against Israel, were untenable, and ought to be replaced.

Resolution 242 does not in itself strengthen the already strong legitimacy in international law for Israel’s claim to the territories. But it is relevant in several respects.

First, Resolution 242 underscores the status of Judea and Samaria as disputed territory whose ultimate disposition is to be decided by negotiations between Israel and its neighbors.

In addition, with regard to settlements, most have been established with a view toward reinforcing Israeli claims to key strategic areas in Judea and Samaria – those most germane to providing Israel with defensible borders as envisioned in 242.

* * * * *

In fact, not all of Judea and Samaria are currently disputed territories, as Israel ceded parts of these areas to the Palestinians in the context of the Oslo process. The Oslo accords entailed a division of these territories into Areas A, B, and C. Area A was placed under full Palestinian Authority control; in Area B the Palestinians assumed full civil authority while Israel retained responsibility for security; and Area C remained under Israeli control.

Areas A and B comprise about 40 percent of Judea and Samaria and are home to well over 90 percent of the Palestinian population of the territories.

Some have argued that Israel is not obliged to maintain its relinquishment of these areas as the Palestinian Authority has never fulfilled its obligations under the relevant Oslo accords. In particular, it has never recognized Israel’s right to exist, has never ended incitement promoting the murder of Israelis and delegitimization and destruction of the state, and has never abandoned terror to advance its anti-Israel agenda. But no Israeli government has sought to reverse the ceding of Areas A and B.

Israel, of course, also unilaterally ceded all of Gaza to the Palestinians in 2005. Since then, particularly since Hamas seized control of Gaza in 2007, Israel has been subjected to recurrent, often incessant rocket bombardment and other assaults from the territory, as well as three wars initiated by Palestinian aggression. Yet Israel has never sought to reverse its ceding of Gaza.

These transfers of land to the Palestinians have reduced the disputed territories to Area C in Samaria and Judea and those parts of Jerusalem beyond the pre-1967 armistice line. As argued above, Israel has the strongest claim to these areas, and certainly nothing in international law justifies characterizing them as “Palestinian land.”

But Obama’s doing so is part of a broader agenda. Throughout his presidency, he and others in his administration have put the onus on Israel for breakdowns in negotiations and for the absence of any progress toward a resolution of the conflict, when it is patently obvious to any honest observer that it has been Abbas and the Palestinian Authority that have consistently scuttled talks.

Netanyahu has repeatedly offered to resume talks without preconditions; Abbas has invariably insisted on preconditions Israel must fulfill before he will agree to meet. Obama, though, has ignored Abbas’s intransigence throughout his time in office.

Obama and those around him have, more specifically, spoken most about Israel’s expanding settlements and establishing new settlements as the obstacle to progress and as potentially rendering an agreement impossible. But Israel has established no new settlements for decades, and construction in existing settlements has taken place on a far smaller scale under Netanyahu than under his predecessors, including Rabin during the Oslo years.

In the course of Obama’s presidency, Netanyahu agreed to a ten-month settlement freeze to help jump-start talks; no predecessor had ever imposed such a freeze. Abbas waited until a month before its expiration before engaging in a meeting, then insisted on extension of the freeze as a condition for continuing to meet. Yet Obama persisted in primarily blaming Israel for the lack of progress.

Another element in all this has been the administration’s ignoring or downplaying Abbas’s declarations that he will never recognize the legitimacy of a Jewish state within any borders; his insistence that the Jews have no historic roots in the land and are merely alien usurpers whose state must be extirpated; his incitement of his people to violence and murder; his praise of terrorists and financing of them; and his enlisting the schools, mosques, and media under his control to propagate the same history-distorting, defamatory, murderous messages.

Occasionally, when Abbas’s incitement would reach a particularly high pitch and unleash an increase in deadly attacks on Israelis, Obama would offer some low-key, anodyne criticism, most often without naming Abbas.

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Kenneth Levin is a psychiatrist and historian and the author of "The Oslo Syndrome: Delusions of a People under Siege" (Smith and Kraus Global).