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Debating the legal status of the West Bank

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Tal Becker (Photo Credit: Shalom Hartman Institute)

Tal Becker, legal advisor of the Israeli Ministry of Foreign Affairs, a senior fellow at the Shalom Hartman institute and a member of Israel’s peace negotiation team, began his talk at Toronto’s Holy Blossom Temple, on Feb. 11, by warning his audience that they’d likely hear some ideas that would challenge their beliefs – and then told them that was the very point of his presentation.

“One of the things that very often happens – I do it myself as well – is that we come to a talk to hear the eloquent articulation of the position we already have,” he said. “I just wanted to begin by saying that learning doesn’t happen in that way. And at the Hartman Institute, one of the things you do for learning is you switch the volume down on the need to hear the affirmation of your position.”

When it comes to arguing, Becker says, the consensus seems to be that the winner leaves unchanged, while the one who expands her point of view is considered the loser.

“I think in the Jewish tradition we need to swap that around,” he said. “In other words, we’ll have a good night tonight if you leave slightly differently from the way you came. Not necessarily having your view rejected or affirmed, but just seeing things from a different perspective.”

Becker wanted his audience to be open to hearing other points of views because of the nature of his topic: the status of the settlements, and Judea and Samaria. He didn’t represent his own point of view. He didn’t represent the Israeli government’s point of view, even though that has been his job as a senior negotiator. Rather, he split the different views on the issue into four camps, surveyed the political and legal arguments of each camp and then unearthed their underlying moral imperatives.

Before diving into the different camps, Becker clarified the legal meaning of the word occupation. In popular discourse occupation often has a negative connotation, but in the world of international diplomacy it is a perfectly legitimate state of affairs. Occupation occurs when a state comes into control of territory as a result of war, and is meant to be a temporary situation. Once the two sides agree on peace terms, the land is ideally returned. Until that time, the occupier acts as a “custodian” of the land, Becker said, maintaining the status quo and protecting the welfare of the native population.

The first of the four camps believes that the term occupation should not apply to Israel’s presence in Judea and Samaria since it is land Israel is entitled to per the League of Nations 1922 Mandate for Palestine, and it is impossible by definition to occupy land that is rightfully yours. Israel is not a custodian of land that will one day be under another state’s sovereignty, but of land that it alone has a valid claim to and can therefore take control of whenever it wishes.

The second camp acknowledges that Israel is occupying the land, but only until the two parties with legitimate claims to the land, the Israelis and Palestinians, can negotiate how to distribute sovereignty. Until that time, Israel is within its rights to move citizens into that territory – that is, create settlements – since the land had no previous sovereign status the way occupied land won in combat usually would. This second camp represents Israel’s official position, a position it alone occupied on the world stage until the United States sided with Israel last year.

The rest of the world mostly falls into the third camp, Becker said, which believes that Israel’s occupation is legitimate for security reasons, but that Israel does not have any claim to the occupied land because Israel has already realized its purpose as a home for the Jewish people. This camp believes the occupation should end with a negotiated peace plan that takes into account both Israel’s need for security and the self-determination of the Palestinian people, but that Israel does not have a right to move its citizens into the territory since it has no claim to keep non-essential land once peace terms are met.

The final camp believes that Israel’s occupation is not legitimate, and it should withdraw as soon as possible without conditions – including protecting its security interests. Becker said there are a few different arguments from this camp: The first is that Israel has so thoroughly violated the norms of legitimate occupation through its expansion of settlements that it has undermined the occupation’s legitimacy. Another is that the suffering of the Palestinians, as a result of the occupation, is reason enough to exit the territories, as it constitutes a shanda (disgrace) against the moral soul of the Jewish people.

Becker ended his talk by reminding the audience about what it means to have a good Jewish argument and how that applies to the search for truth.

“Having a good (argument) means that the view you do not share expresses a kind of essential truth, that it has to be in the conversation. And a deep part of our tradition says that none of us have the capacity to exhaust the truth,” he said.

“The way that you hold communities together is by committing to the brokenness of your own position, and constantly asking yourself what is valid in the view that I do not hold. And each of these views, if you work hard, has a truth in it that needs to be heard and be held. And the act of growing and learning and building community, and maybe even achieving peace, is in the dance of holding the essential truth in each of these views somehow together.”

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