Is Israel Occupying the West Financial institution? (with Eugene Kontorovich) – Econlib



Intro. [Recording date: June 6, 2024.]

Russ Roberts: Right now is June sixth, 2024, and my visitor is Professor Eugene Kontorovich of the Scalia Regulation Faculty at George Mason College. His specialties are Constitutional regulation and worldwide regulation. Our subject for as we speak is what is typically referred to as the West Financial institution, generally referred to as Judea and Samaria, and generally referred to as the occupied territories, and generally referred to as the Palestinian Territories. Eugene, welcome to EconTalk.

Eugene Kontorovich: Nice to be with you Russ.


Russ Roberts: The realm we’re speaking about, which I will attempt to name by the somewhat-neutral identify, the West Financial institution, was taken by Israel from Jordan within the Six-Day Struggle in 1967. It’s west of the Jordan River. It consists of cities the place Arabs stay, the place Jews stay. There are about 450,000 Jews within the West Financial institution. One other 250,000 stay in what’s referred to as East Jerusalem, which is technically a separate space. And, there are about 2.7 million Arabs within the West Financial institution.

Now, many individuals describe Israel’s function within the West Financial institution as an occupation–that Israel’s cities and settlements violate worldwide regulation. Let’s begin with that case. I do know it is not your view, however for the individuals who contemplate Israel an occupying energy, what’s their argument?

Eugene Kontorovich: So, first I feel, let’s begin even earlier than anyone’s argument and attempt to perceive what an occupation is. As a result of an occupation is a time period of artwork. That’s to say, it is a technical authorized time period. It does not simply imply a foul scenario. It has a really particular which means, and it’s a time period inside a subset of worldwide regulation referred to as the worldwide regulation of battle, or worldwide humanitarian regulation, as it is also identified.

So, an occupation is a really explicit scenario that arises in a world armed battle. That’s to say, a battle between two countries–that couldn’t come up in a civil battle, for example–in which one nation takes over the territory of one other nation after which begins to really administer it and form of function the native authorities. That’s to say, not merely holding it on the battlefield, however form of replaces the prior authorities because the appearing administrating energy in that territory.

So, you want a battle; you want two international locations, a world battle; and also you want one nation to come back and change one other nation.

One essential level just isn’t each time a rustic takes territory that’s beforehand held by one other nation, in a battle, wouldn’t it be an occupation. That isn’t automated.

So, let me offer you some examples. For instance Ukraine retakes Crimea. Regardless that it has been held by Russia for a really very long time, we would not say that is an occupation; and we will clarify why.

nother instance, in 1974, Morocco invaded and took over the West Financial institution–pardon–the Western Sahara. And, many, together with many European international locations do not check with it as occupied. Somewhat they name it disputed territory or administered territory as a result of it failed the two-country ingredient. That’s to say, Western Sahara was not beforehand a rustic. It was a form of deserted Spanish colony. So, you do not have a world armed battle, so it might not be occupied. So, there’s some technicalities, and I feel Western Sahara clearly illustrates that.

The essential argument of those that say that Israel is occupying the West Financial institution, which was specified by place paper–a authorized opinion–by Jimmy Carter’s State Division Authorized Adviser–a man named Hansell–wrote a authorized opinion in 1977, which units the fundamental arguments for the case of occupation.

And, the argument goes like this. In 1967, Jordan held the territory, the West Financial institution. Israel took over the territory in 1967 and commenced functioning because the native authorities. Thus, occupation.

Now, that argument fails to deal with I feel some apparent questions like Jordan was not the sovereign of that territory. That’s to say–and we will go into this in a second–but, all people agrees, or actually america and Western European international locations agree that Jordan itself was an occupying energy within the West Financial institution. That was not Jordan’s sovereign territory.

So, the argument–and I feel right here the argument does a little bit of hand waving or skipping inconvenient wrinkles–they say, ‘Properly, it was Jordan’s sufficient.’ It was Jordan’s sufficient. I do not know what which means precisely.

Now, crucially, even beneath the Herbert Hansell opinion, which was written in 1977, Israel wouldn’t be thought of an occupying energy as we speak. Why? As a result of occupation can solely exist in wartime.

So, when he wrote that opinion–there’s really a sentence in that opinion. It was written in 1977, so you would say issues like this safely since you would possibly’ve suppose they’d by no means occurred. It stated, in fact, if Israel had been to make peace with Jordan, then there’d be no state of war–if there was an precise peace treaty–and so there can be no occupation.

Now, in fact, Israel did make peace with Jordan–unconditional peace–in 1994. That will make, beneath Herbert Hansell’s personal opinion, any state of occupation that did exist in 1967–which I feel didn’t exist–but, even in that view, it might be onerous to know the way it survives the peace treaty.

And, I am going to offer you loads of examples of that. For instance, America occupied Germany into the Nineteen Fifties. Then it creates a brand new German authorities, makes peace with that new German authorities. And, the truth that there’s a whole lot of 1000’s and hundreds of thousands of American troopers in West Germany, it does not make it an occupation.

Or take Afghanistan, which America invaded in 2001, 2002, when it arrange an Afghan authorities in I imagine 2003, and made a peace treaty with that authorities. The continued presence of American troopers who had been engaged in fixed hostilities for a few years, usually in opposition to the declared needs of the Afghan authorities, was not an occupation as a result of there was no battle between America and Afghanistan.

So, I feel they’ve an issue with the peace treaty and with Oslo.


Russ Roberts: So, let’s return and flesh out your argument about Jordan not being a sovereign energy. It is fascinating. For individuals who do not know the historical past, I feel there’s nonetheless some points to resolve, nevertheless it’s a unprecedented reminder of how difficult the scenario is.

We now have to return one other 20 years to 1947, 1948. The UN [United Nations] in 1947 has a partition plan. It is a very unusual partition, but–you take a look at it, it is fairly weird. About 60% goes to Israel, is the proposal; 40% goes to go to the Palestinian individuals.

However in fact, that 60% is deceptive. A whole lot of the land that’s that proposed State of Israel is desert. No person lives there. A lot of the cities within the nation and the Palestinian Mandate that had been run by Britain till then are going to fall into the Arab half. And, Jerusalem goes to be a world metropolis. So, it is 60% Israeli, 40% this new Palestinian nation that is going to be proposed. And, the town of Jerusalem might be worldwide.

Israel accepts the plan with holding its nostril, does not prefer it, nevertheless it’s higher than nothing. The Arab international locations oppose the plan. Israel declares a state and the Arab international locations surrounding Israel all invade. What occurs subsequent?

Eugene Kontorovich: Okay. So, to begin with, the partition plan proposal by the Basic Meeting in 1947 is usually a place to begin for these discussions. And, once more, I feel as a lawyer, my first query is–what they educate you in regulation faculty is how you can determine the legally related information. There’s all the time a whole lot of information. Which information are legally related?

So, for that partition proposal to be legally related it must be that the United Nations Basic Meeting is within the enterprise of constructing international locations and drawing their borders. In actual fact, it isn’t. It has by no means made a rustic and it has no authority to attract its borders as a result of the United Nations Basic Meeting is a treaty group. The one energy it has is over its personal funds, and all it will possibly do is make suggestions.

Palestine: U.N. Partition Plan, 1947, exhibiting the six disconnected triangles of land allotted. Supply: Element from Perry-Castañeda Library Map Assortment, U. of Texas.

And, by the way in which, they knew that in 1947. If you happen to learn the decision, it’s worded as a suggestion to Britain, who was the League of Nations necessary energy; and Britain thought the advice was very unwieldy since you talked about it was an odd map. It really divides Obligatory Palestine–which was what the entity was then called–into six triangles, form of. And, the Arabs get three, the Jews get three, and not one of the triangles are literally adjoining. Jerusalem and the larger Jerusalem space, together with a lot of Bethlehem, is a world metropolis. Jaffa is a Palestinian enclave, which is now a part of Tel Aviv, a part of the Arab state. Even the British, which weren’t excited a few Jewish state, thought that this is able to be an unworkable answer.

The Jews accepted it as a result of the opposite choice that the UN was contemplating recommending was no Jewish state. So, the Jews celebrated as a result of this was the much less dangerous of two choices within the diplomatic sphere. However it does not have any authorized impact.

Now, when Israel declares a State, that could be a legally vital second due to worldwide regulation doctrine referred to as uti possidetis juris. Now, this doctrine could sound obscure, however it’s the doctrine in worldwide regulation that’s used to find out borders of latest international locations.

This isn’t controversial. You possibly can look it up in a world regulation encyclopedia. From Africa to Asia, from the Worldwide Court docket of Justice to varied arbitral tribunals, that is the rule that’s used to find out new international locations. And, I feel it is really attention-grabbing to suppose as an economist possibly to suppose why it is the rule. We will get to that in a second.

The rule is: when a brand new nation is created–now, it does not say ‘when’ a brand new nation is created. For a rustic to be created, it has to fulfill varied goal circumstances. One can have a giant dispute about when these are happy. For instance, there’s such a dispute now a few Palestinian State. There’s such a dispute now a few Somali State, Somali land state, and a Kurdish State. However, typically accepted that Israel met these standards. It had a territory; it had a authorities in 1948.

How do you determine the boundaries of a brand new nation? And, the rationale there is a rule for this in worldwide regulation is it occurs pretty usually. So, simply to present you an instance, there was 50-some international locations within the United Nations when it was created. Now there’s 193, with possibly extra to come back.

So, let’s take an instance that isn’t as ideologically controversial, that isn’t within the newspapers on a regular basis as a result of I feel it is simpler for individuals to suppose calmly about issues that they don’t seem to be emotionally hooked up to. So take, for instance, the previous republics of the previous Soviet Union [USSR]. Take the previous Soviet Union. You had a rustic that was referred to as the Soviet Union.

Now, when the Soviet Union disintegrated, varied parts of the Soviet Union declared independence. So, how do you determine the borders of say, Ukraine? Azerbaijan? Armenia? All of whom had border disputes, with Russia primarily?

So, the rule is: When you might have a brand new nation emerge from the breakup of a previous nation, secession, federal breakup, and even, like, divorce–like within the case of Czech Republic and Slovakia–the nation’s borders are the borders of the biggest pre-existing administrative unit.

And, to place that simply in quite simple phrases, in America, that may be a state. In Canada that may be–what are they referred to as them? A commonwealth?

Russ Roberts: Provinces.

Eugene Kontorovich: Provinces. In Germany that may be a Länd[?]

And, within the Soviet Union–that can be the Soviet Socialist Republic–there had been about 16 of them. They had been the highest stage administrative models.

Now, what does that imply? What which means is you do not take a look at a bunch of different components. Historical past, demography, topography, equity. Why? As a result of all of these components are indetermined. Proper? Historical past: the place do you return to? Demography? Demographics by no means completely match political boundaries as a result of teams form of spill over into totally different locations in several concentrations. Equity? Who decides equity?

What recommends this rule is it is one issue and quite simple to manage. You simply look.

Now, what this implies is usually it will not comport with notions of equity or demographics as a result of the earlier high stage administrative unit will usually, sometimes have been drawn by a former colonial energy, and so forth.

Nonetheless, that is the rule.

And let me offer you some examples. Take Crimea for example–as Vladimir Putin did in 2014. The worldwide neighborhood doesn’t regard that as being rightfully Russia’s.

Now, is it due to this idea we hear usually by the Palestinians, self-determination? That the individuals of Crimea do not wish to be a part of Russia? No, the vast majority of them had been ethnically Russian, they usually in all probability did wish to be a part of Russia. Not 95% or no matter that they had within the election that Putin held. That is simply the one quantity that comes out of Russian poll machines. However, a majority for positive. And, who is aware of what the precise majority is.

Is it that it was colonial? That it was distant from Russia, like throughout the seas? No. It was in between Russia and Ukraine, form of evenly; and Russia actually has a superior historic declare.

What was the story? Crimea was a part of the Russian Soviet Socialist Republic and had been a part of the Russian Empire till the Nineteen Fifties when Nikita Khrushchev, the Secretary Basic of the Communist Get together, redrew the inner maps and gave Crimea to the Ukrainian Soviet Socialist Republic. Did he ask the individuals there? Was it truthful? Was it simply? No. Nonetheless, it was very clear that Crimea was within the Ukrainian Soviet Socialist Republic. And, thus it turned, when a part of the nation Ukraine when Ukraine received independence, fairly than the nation of Russia.

And, when Russia objected to that, making mainly what the Palestinians are making–an ethnic argument–that it’s best to redraw this on ethnic strains, the worldwide neighborhood rejected that argument.

And, absolutely if God had been to smile upon the Ukrainians they usually had been to have some superb, miraculous navy success and retake Crimea from Russia–which does not appear within the playing cards now, simply because it did not appear within the playing cards for Israel for some time to retake the West Financial institution of Judea and Samaria–I do not imagine anybody within the worldwide neighborhood would deem Ukraine an occupier.

Let me restate this all very merely: You can not occupy territory to which you might have a authorized declare.

Now, let’s apply that rule, if we could, to the case of Israel in 1948, such as you stated. Israel declares independence. So, what are its borders? The borders of the final high stage administrative unit. What’s that? What was referred to as Obligatory Palestine. And that was an entity created by the League of Nations. The League of Nations was, in contrast to the UN, given energy to create necessary territories out of former Ottoman and German Empire colonies, after the collapse of these empires. And, these had been supposed to show into new impartial nation-states.

The boundaries–and Palestine didn’t imply Palestine in an Arab ethnic sense. It was a purely geographic identify for this territory. And, what had been the boundaries of that territory? It was what you’ll name between the river and the ocean, or that’s to say what we’d now name Israel, Gaza, and Judaea and Samaria, because it was really referred to as by the United Nations on the time, or now what some individuals would name the West Financial institution. That was the boundaries.

Each different necessary country–because Israel was not the one one: Lebanon, Syria, Jordan, locations in Africa–inherited precisely the borders of the mandate because it stood in the mean time of their independence.

So thus, Israel’s borders in the mean time of independence–which is if you apply this rule–would embody Judaea and Samaria.

Now, Jordan instantly invades. The invasion was already underway in some ways earlier than Israel declares independence. So, Jordan instantly invades. They make this blitz in the direction of Tel Aviv. Egypt makes a touch alongside the coast in the direction of Tel Aviv, and the objective of those invading armies–joined by different Arab countries–was to satisfy within the center, Molotov-Ribbentrop, and divide the spoils of the nation between them.

They partially failed: thus the creation of the state of Israel. Had they succeeded, there can be no state of Israel: Nobody would say, ‘Oh, UN Basic Meeting decision is being violated.’ That will be it. All of the Jews must be–would be ethnically cleansed.

However, additionally they partially did succeed. That’s to say, Jordan managed to get a sure distance. Egypt received a sure distance. Why is the Gaza Strip referred to as the Gaza Strip? There is not any pure jap boundary of the strip. The Egyptian armored columns proceeded up in opposition to alongside the coast. They received a sure distance, they received pushed again just a little bit, and that’s the place they stopped.

Equally, Jordan went as much as the hills of Samaria and Judaea they usually had been stopped there. That is why the so-called Armistice Line, which was made on the finish of this battle, runs by way of the center of Jerusalem. That is not a pure boundary. That is merely the place the Israeli military managed to cease the Jordanian military. So, your entire entity of the West Financial institution could possibly be redefined. I feel a less complicated strategy to put it’s the extent of success of Jordanian aggression and conquest in 1948 and 1949.


Russ Roberts: And due to this fact, your argument goes to be that when Israel in 1967 takes that land again, they don’t seem to be occupying it. There are a big group of Palestinians that in a minute we’ll speak about whether or not that is exterior of the authorized question–what does that result in and the way ought to we give it some thought?

However, I simply wish to cease for a second and make the facet point–because it is stunning, I feel, for people who find themselves not conscious of the history–that between 1948 and 1967, the Gaza Strip was administered by Egypt. They thought of it a part of Egypt. The world thought of it a part of Egypt. The West Financial institution was, quote, “Jordanian.” The world didn’t agree along with your evaluation that that land ought to have been a part of Israel. It was thought of Jordanian till 1967 when Israel took it back–or took it, relying in your prejudices, interpretations, and so forth.

In that point, there have been a whole lot of Palestinians there within the West Financial institution and in Gaza. And, let’s remind listeners the place they got here from. In 1948 when Israel declared itself a State proper after the British gave up and stated, ‘We’re accomplished. We will not deal with this concept of two States. Nobody appears to love it.’ Israel stated, ‘Properly, we prefer it. We’re declaring a State.’

And, the Arab neighbors stated, ‘We do not prefer it. We will conquer you.’ And as you stated, Eugene, they had been going to divvy it up. They had been not going to create a Palestinian State.

And, when that battle broke out, Arab residents of what we’d name in 1967–the borders of Israel that many individuals grew up with, Arabs, some stayed and have become Israeli residents. There’s two million of them. They’ve full rights within the fashionable State of Israel. They go to varsity, they vote. They do not need to serve within the military if they do not wish to. Some do, although. They get healthcare. They get all the advantages and blessings and curses of being an Israeli citizen.

So, some stayed. Some fled for his or her lives, both as a result of the Israeli military was advancing they usually had been afraid, or as a result of they had been advised that it was solely going to take just a little little bit of time: the Arab armies would defeat the Zionist entity, and you’ll return to your houses.

However, my level is, is that those that fled, whether or not they had been pushed out by Israeli navy power or they fled out of concern of what was going to occur or as a result of they had been inspired to, a lot of them settled within the West Financial institution and in Gaza. And, within the interval between 1948-1967 when these areas and people Palestinians had been residing beneath the sovereignty of Jordan on the West Financial institution and Gaza Strip beneath Egyptian sovereignty, nobody stated they deserved to remain. No less than I do not do not forget that. Inform me if I am incorrect.

Eugene Kontorovich: Yeah. You are largely proper. I simply wish to quibble with a technical a part of the characterization.

Actually, when Gaza was administered by Egypt and West Financial institution was administered by Jordan, no person was saying that they had been, a). one entity. That was a declare no person made, that there was any connection between these two territorial entities separated by the State of Israel in between. Or, that they need to be one state or two states.

I would say that there was some distinction within the remedy. Egypt by no means annexed Gaza. Egypt didn’t. As is the case as we speak, even in 1948 nobody actually needed Gaza, and Egypt doesn’t wish to incorporate Gaza into Egypt. They administered it beneath navy rule.

Jordan, in 1950, did declare to annex the West Financial institution, and that is the place the identify the West Financial institution comes from. Jordan named it the West Financial institution, that’s to say the a part of Jordan that’s west of the Jordan [the Jordan River–Econlib Ed.]; as a result of the remainder of Jordan has historically been referred to as Transjordan–i.e., on the different facet of the Jordan. So, it is the West Financial institution in relation to Jordan. That is a Jordanian identify. So, they claimed to annex it. They gave them citizenship. They integrated.

Just one or two international locations on the planet acknowledged the legitimacy of that annexation. That is an vital level.

So, if you say international locations handled it as Jordan’s, I fully agree: They did not trouble Jordan about it. They weren’t, like, ‘What are you doing within the West Financial institution? Give it up.’ They fully went alongside with the Jordanian annexation. However, they made some extent to not legally acknowledge it. Very like Turkey just isn’t being actually hassled over Northern Cyprus or Morocco just isn’t being hassled extensively over Western Sahara, however they did not give it a authorized standing.

So, yeah, the thought of Palestinian statehood just isn’t actually concerning the Palestinians being occupied–because they had been actually occupied–everybody agrees–from 1948 to 1967 by Jordan and Egypt, respectively. However, that was not thought to warrant a Palestinian state.


Russ Roberts: And now let’s transfer to a much–I hope we do not have an excessive amount of nuance for our listeners up to now. It is going to get just a little bit extra difficult.

So, I take your level that the authorized definition of occupation is tough to use to Israel, say, over the West Financial institution both as a result of Jordan actually did not have it–you might have argued it was Israel’s between 1948 and 1967–or, as a result of Jordan and Israel are actually at peace, so who’s being occupied? Not Jordanian territory: Just some thought of a possible Palestinian State must be the declare.

It is not likely a authorized declare. It is an emotional or ethical declare. Which I do not deny: it is an attention-grabbing, vital factor to contemplate and take critically.

So, I wish to flip to that ethical subject. And, I feel when critics of Israel as we speak check with Israel as an occupying state or check with Israel as an apartheid state, they’re speaking about the way in which the Israeli authorities treats the Arab, Palestinian residents of the West Financial institution.

So, let’s transfer to that. And, to know that which is unbelievably complicated–we will be unable to do justice to it intimately since you want a map and then you definately want some, too many footnotes.

However, what I wish to make listeners conscious of is that this space referred to as the West Financial institution just isn’t a monolith. It has this loopy division that comes from the Oslo Accords of 1993. It has this loopy division between areas A, B, and C.

As well as, they’re not likely areas. It is a dangerous phrase. Areas, to me means a geographic contiguous factor, like The West in america. That is an space. It is the realm: You would debate the place it’s. Is it west of the Rockies? Is it west of the Mississippi River? However, the West is–you would not wish to say there’s some East contained in the West. That is foolish.

However areas A, B, and C are like that. So, areas A, B, and C, despite the fact that they’re referred to as areas, a greater approach, I’d say, to explain it, is there are three totally different authorized regimes beneath which individuals within the West Financial institution stay: A, B, and C. Let’s attempt to let listeners perceive the variations between areas A, B, and C. [More to come, 27:38]

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