It is a reality that international law has determined that the West Bank is governed as a territory captured in war, which makes it defined as a “belligerent occupation.”
I have some news for US President Donald Trump, and he may not like it, but here it is: Donald Trump is not the point of reference regarding international law. No unilateral declaration of the president or secretary of state of the United States of America can legalize the illegal Israeli settlements in the West Bank. The Israeli settlements are not only illegal under international law, they have been and will continue to be one of the main obstacles to reaching a two-state solution to the Israeli-Palestinian conflict.
It should be no surprise to anyone, but since at least 1977, when the Likud first came to power, Israeli governments have consistently stated that one of the main purposes of the Israeli settlements in the West Bank, especially those in the heartland of the West Bank along the central mountain ridge, is to prevent the creation of a Palestinian state. From that perspective, the Israeli settlement enterprise has been extraordinarily successful. The so-called success of the settlement enterprise is at the same time the contravention of international law by the State of Israel and the failure of the international community to stop Israel from building and expanding settlements. Providing Israel with impunity demonstrates a real weakness in the international system. It is this weakness that allows the Trump administration to ignore international law and go against the will of the overwhelming majority of the international community.
I understand that Judea and Samaria, using the biblical name for the West Bank, is defined as the cradle of our Jewish civilization, and that the stories told in the Torah took place there and not on the beaches of Tel Aviv. Nonetheless, it is also a reality that there are almost three million Palestinians living in that same territory. It is also a reality, whether we like it or not, that international law has determined that the West Bank is governed as a territory captured in war, which makes it defined as a “belligerent occupation.” It does not matter that Israel was attacked first by Jordan in 1967 and that Jordan was an illegal occupier itself of the West Bank.
It does not matter that there was no legal sovereign in power of the West Bank prior to 1967. International law applies there and for most of the past 51 years, the government of Israel has itself treated the West Bank as an occupied territory. That is why, according to Israeli law, the legal sovereign power in the West Bank since 1967 has been the commander of Israeli forces in Judea and Samaria, and not the government of Israel. The High Court of Justice decided many years ago that it does not make judgments on the basis of international law, but it has in many cases kept international law in mind when making judgments against the Israeli army or the Israeli government in connection with events in the West Bank.
IF BENJAMIN NETANYAHU continues to be prime minister in a right-wing government, Israel continues expanding the settlement enterprise with a freer hand than ever – feeling vindicated by the Trump administration – and the international community continues to be impotent when international law is violated with such disregard and arrogance, I think it would be safe to officially declare the two-state solution dead. What is the point of continuing to believe that a Palestinian state could be founded on 40% of the West Bank, detached from east Jerusalem and separated completely from Gaza, in a Swiss cheese of Palestinian communities? If the international community is not prepared, like Sweden, to recognize the State of Palestine on the basis of the (so-called) 1967 lines, it is not prepared to declare that since Israeli settlements are illegal and therefore settlers and settlement products are illegal and should not be allowed to enter countries that respect international law, then there is no point of continuing to talk about a two-state solution. If the Trump administration’s policies vis-à-vis the illegal actions of Israel can set the tone and behavior of the international community, then what is the point of international law? And what is the point of continuing to talk about a two-state solution that has zero chance of emerging.
The problem is that no one has a real alternative to the two-state solution that enables both Israelis (Jews) and Palestinians to have a territorial expression of their identity in a state that is actually viable, free and independent. The continuation of the settlement enterprise is Israel’s clearest expression that it is not willing to make peace with the Palestinians in any kind of equitable fashion. For years already, the idea of territorial swaps was the formula devised to enable the possibility of drawing a border between Israel and Palestine. The proposal was that if Israel annexed about 4% of the West Bank in exchange for equal uninhabited land on the Israeli side of the green line, about 75% of the settlers would be able to remain where they were under recognized and agreed-to Israeli sovereignty. Unlimited continued Israeli settlement building outside of the main blocks and way east of the separation barriers is a deathblow to even that kind of compromise. The attempted legalization of the illegal settlements by Trump is also a clear signal that the so-called “Deal of the Century” is nothing more than the scam of the century.
The Trump administration’s new policy on settlements is a slap in the face of anyone who has supported the two-state solution. The attempt to legalize the illegal is a blow to international law and legitimacy and, at the end of the day, contributes to the ultimate delegitimization of Israel as a nation that was founded by international legitimacy.
Gershon is an advisor to Israeli, Palestinian and International Prime Ministers on the Middle East Peace Process and the founder and director of IPCRI, the Israeli-Palestinian Public Policy Institute. He was the initiator and negotiator of the secret back channel between Israel and Hamas for the release of 1,027 prisoners – mainly Palestinians and Arab-Israelis of which 280 were sentenced to life in prison for planning and perpetrating various attacks against Jewish targets that resulted in the killing of 569 Israelis in exchange for one Israeli soldier, Gilad Schalit. Gershon is actively involved in research and advocacy concerning topics such as social policy, environmental security, political strategy, peace education, economics, culture and in the development of affordable solar projects with the goal of providing clean electricity for 50 million people by 2020.