Rewarding Warmongers

As I’ve discussed, in his speech on Thursday President Obama spoke words (not substantively retracted in his speech on Sunday to AIPAC) that convey a shocking indifference to Israel’s security needs, namely:

The borders of Israel and Palestine should be based on the 1967 lines with mutually agreed swaps….The full and phased withdrawal of Israeli military forces should be coordinated with the assumption of Palestinian security responsibility in a sovereign, nonmilitarized state[.]

Some commentators have claimed that the phrase “agreed swaps” is reassuring and—as Obama himself now claims—consistent with previous U.S. positions. But particularly in the context of calling for a “full and phased withdrawal of Israeli military forces,” it is anything but.

Clearly, with its army having totally withdrawn from the West Bank, the most Israel could feasibly retain are some communities just over the 1967 border. And “swaps” means that even for these, Israel would have to give up land within that border, i.e., from pre-1967 Israel. In other words, in Obama’s dispensation, Israel has no real right to any of the land in the West Bank, or Judea and Samaria—the historical cradle of the Jewish people, which Israel conquered in a defensive war of survival in June 1967.

That position directly contradicts UN Security Council Resolution 242 from that year—which, as Dore Gold noted on Saturday in the Wall Street Journal, “became the only agreed basis of all Arab-Israeli peace agreements.” 242 famously stipulated the “withdrawal of Israel armed forces from territories occupied in the recent conflict,” not “from the territories” or “from all territories.” The omission of “the” or “all” reflected a hard-won victory by American and British diplomats over the Arab and Soviet bloc, which fought to include one of those words and thereby force the Jewish state back to indefensible borders.

And that omission means, notwithstanding Obama’s attempt to fudge the record in his AIPAC speech, that Israel would not owe the other side any swaps for retaining whatever parts of Judea and Samaria it would retain.

In flying in the face of Resolution 242, then, Obama’s demand of Israel in his initial, still unaltered speech on Thursday can reasonably be characterized as a violation of international law. And it violates it in another sense as well. As Steven M. Schwebel, the American international-law expert and former president of the International Court of Justice, wrote in the aftermath of the June 1967 or Six Day War:

(a) a state [Israel] acting in lawful exercise of its right of self-defense may seize and occupy foreign territory as long as such seizure and occupation are necessary to its self-defense;

(b) as a condition of its withdrawal from such territory, that State may require the institution of security measures reasonably designed to ensure that that territory shall not again be used to mount a threat or use of force against it of such a nature as to justify exercise of self-defense;

(c) Where the prior holder of territory had seized that territory unlawfully [Jordan], the state which subsequently takes that territory in the lawful exercise of self-defense [Israel] has, against that prior holder, better title.


[A]s between Israel, acting defensively in 1948 and 1967, on the one hand, and her Arab neighbors, acting aggressively, in 1948 and 1967, on the other, Israel has the better title in the territory of what was Palestine[.]

It stands to reason as well: a norm of restoring all land to aggressors would remove any deterrent against aggression. Indeed, the historical practice has been to punish aggressors hard. For instance, the 1815 Congress of Vienna imposed harsh terms on France for its aggression in the Napoleonic Wars. The 1919 Treaty of Versailles dealt severely with Germany for its role in World War I. After World War II, Germany and Japan were occupied and demilitarized; millions of ethnic Germans were expelled by Poland, Russia, Czechoslovakia, and Yugoslavia, and top Nazis were tried and executed at Nuremberg.
The 1948 and 1967 Arab wars against Israel, then—to which can be added the Yom Kippur War of 1973—form an exception in that the thrust of international diplomacy has been to restore land to the aggressors. This is true even though, unquestionably in the 1948 and 1967 cases and controversially in the 1973 case, the aim of the wars on the Arabs’ part was Israel’s annihilation.