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ISRAEL'S STRANGEST SELF-DEFEATING PARADOX: Forgetting To Teach Itself And The World Jewish National Rights In Palestine

by Dr. Yoram Shifftan

As you are a guardian of the rule of law in Israel, I thought I would share with you the strange experience of finding out that Israel, for all the many decades of its official existence and before, has forgotten to teach itself and the world Jewish national rights according to international law. Even stranger - in the last seven years or so, I have brought those rights to the attention of some politicians and a portion of the public via the radio and the written media, and I find that almost nothing has changed in Israel's official Hasbara.

I guess that those that are not self-hating thought to themselves that this could not be true, that there must be some major counter-argument. They may have thought that it is highly unlikely that a nation would forget to teach itself and the world about the most important founding documents relating to its national rights according to international law. Yet the improbable has happened. There is no counter-argument in international law that cancels international law. Palestine does indeed belong to the Jewish people.

I write to you because I believe that what Israel has forgotten to highlight is what is most likely to change Israel's image in the world. It should also substantially reduce the motivation for violence and terrorism against the citizens of Israel and Jews in general.

It also has a bearing on current problems. For example Israel's right to build a fence anywhere in Western Palestine follows as a trivial by-product from Jewish national rights according to international law. It is also the case that Israel's legal system should order complete cessation of all preparations for the proposed unilateral evacuations until these national rights are taught to the nation.

Since about the beginning of the Oslo process, Israel has been in retreat in internal education and hasbara, in explaining the justice of its cause, and in how Israel is represented by its diplomats. Passivity, defeatism, intellectual mediocrity, illogicality and self-contradictory statements characterize its conduct. Israel talks about the atrocities committed against its civilians. But it is too timid to appeal in public to its national rights enshrined in international law. Because it does not make the fundamentals clear, an objective observer can conclude that Israel has usurped the land of other nations. Indeed, this is universally believed.

To a large extent, we have ourselves to blame for the deterioration in Israel's image abroad and the associated increase in Judeophobia. If one hides from one's own population the true historical-legal facts, which happen to be pro-Israel, how can one complain that the objective international observer will know more than the average Israeli?

It is as if there is a deliberate attempt by some mysterious agency to weaken Israel from within. It is as if there's an attempt by some in Israel's ruling class and its servants in the civil service to conceal from the Israeli and international publics the objective-and-true historical and legal facts if they happened also to be pro-Israel. Even labor governments before Oslo manifested more national assertion and less defeatism than the present Likud administration. The retreat, in the most general sense of the word, effected by recent Israeli administrations is unparalleled in the annals of nations and usually occurs only in nations that were defeated on the battle field. Israel's generalized retreat broadcasts weakness and this in turn invites further aggression towards the Jewish state and Jews in general, which in turn results in further loss of Jewish life.

This contradictory and self-defeating behaviour is bound to create the impression that Israel's leaders are corrupt and bought from the outside or that they are victims of psychological warfare or of fatigue. The probability that this is the result of a genuine change in the Jewish character is so small that we have to assume as a working hypothesis that some outside agencies are hard at work to subvert Israel from within.

Israel's behaviour is characterized by a wishful-thinking detachment from reality and by self-defeating contradictions. For example, Israel almost never uses its airforce in built-up areas. But when it is suggested to our diplomats, who are often summoned to the international media, that they tell the world of some of the historical precedents of democracies using their airforce in such areas - which would save lives - they decline to do so. This is self-defeating and contradictory to Israel's interests. Jenin was one example of this unnecessary costly-in-Jewish life only-in-Israel super-moral behaviour, and as we know the world's media did not even appreciate it and uncritically accepted Arab lies about a "massacre".

The Arabs always parade Palestinian refugees in the world media - most of these "refugees" only moved from one part of Palestine to another at the instigation of their own leaders - but it is very hard to get an Israeli diplomat to talk in the international media about Jewish refugees from Arab countries. In fact an individual like Yossi Beilin actively took action to conceal from the world the existence of these Jewish refugees who had been forced because of Arab violence to move great distances, often from places where they had lived long before the Arabs arrived in the 7th Century C.E.

I have dealt with some of these self-defeating contradictions in Israel's Hasbara elsewhere (see for example, http://www.think-israel.org/shifftan.html), and my intention here is to focus on Israel's failure over many years to teach its own population and the world at large about Jewish national rights in Palestine according to international law.

I would like to ask you to delay all preparations for the proposed evacuation for reasons that include:

1. In view of the uncharacteristic defeatism that governs Israel since Oslo, I ask you to help identify possible outside agencies that affect our leaders - to check whether donations from the New Israel Fund, the Ford Foundation, from European governments which includes countries such as Switzerland and Finland that are not traditionally involved in the Middle East, and other external sources, are within the law and, if so, whether the law should be changed. After all, a democracy in siege cannot afford to be as liberal as a democracy in peace. It is important to ascertain that outside agencies are not behind the out-of-character behaviour of the present Israeli government. Out-of-character behaviour is often an indication of the existence behind-the-scene illegal agencies and of the existence of conflicts of interest.

2. Israel is on the brink of IRREVERSIBLY giving away land that belongs to it according to international law for nearly a century. It was given to the Jewish people by the international legal bodies IN PERPETUITY. This unprecedented move of voluntarily giving away national land - especially to an enemy - should not be done in a hurry. It does not make sense to proceed with the proposed evacuation plans until we are sure that the Jewish population of Israel is aware of the existence of these national rights which have not been taught in school or mentioned in the Israeli media for many decades. Only after the public is aware of these legal rights, to be followed by an extensive public debate, to be followed by a referendum or an election that will focus on this proposed gift, only then does it make sense to consider the wilful unprecedented gifting of national land.

3. According to the law in general the giving of a gift - the gift in question involves donating the land of Gush Katif and North Shomron - is binding only if it is not done under duress. I fail to see how Sharon's evacuation plan can be lawfully carried out: there is no denying that Israel is subject to a terror campaign which is a major source of duress.

4. The Sharon-Olmert evacuation plan was imposed with artificial urgency. Sharon came to power on the basis of a long-standing manifesto of his party that is antithetical to such an evacuation plan. He won by a landslide over Amram Mitzna, the labor candidate, who proposed leaving Gaza unilaterally. When he initiated a referendum in the greatest forum of members of the party that brought him to power and promised to abide by the results, his evacuation plan was amply rejected. To immediately proceed with his plan and to bring to the coalition parties whose manifesto was diametrically opposed to that of the Likud is a mockery of every democratic and legal process and is a very serious blow to the rule of law and democracy in Israel.

5. No rational reasons were given by Sharon for his plan and not enough time was given for a public debate of such a momentous decision. The public is entitled to know why, particularly when generations of pioneers devoted their lives, often gave their life, to the settlement of barren Jewish land. The authority of Sharon is not enough. It was reported that when high-ranking officers tried to tell him that the proposed evacuation can be dangerous, one reason being that the evacuation will encourage terrorism even further, he told them to shut up and not to give him advice and instead to concentrate on the technical preparations of the retreat . But it is the duty of such officers to independently assess the situation without fear of losing their jobs. It might be even illegal to try to silence them. One wants to encourage freedom of thought. It is enough to remember the wrong "conceptia", the group-think that preceded the Yom Kippur war; namely, that the Egyptians would not attack.

6. There is a large difference between a decision to build a town from scratch and destroying what is fully developed - in the case of Gush Katif, the material waste involved in its destruction is enormous and serves no good purpose. It will involve the loss of strategic depth and effectiveness on the ground and will not result in less soldiering. The action will shift to Israel's interior, which is abnormally small anyhow.

It is explained elsewhere (cf. http://www.think-israel.org/shifftan.israelipr.html) that the proposed evacuation has nothing to do with demography. It does threaten to lower morale and Israel's pioneering spirit; and the prospect of civil war is possible. The proposed plan departs not only from the dream of 2000 years of exile but also from traditional Zionism. The Jewish-Zionist ethos has always been based on the settlement of the land. This was done under hostile (Turkish, British) governments at great personal and national sacrifice; this is how we began Tel Hai, Degania, Gush Etzion, Negba, Kefar Darom, the Homa U'Migdal. It is chilling that a Jewish government - which is not under the pressure of a major military defeat - would even consider dismantling already existing Jewish settlements and transferring the land to the enemy. In many countries, this is treason.

7. Sharon proposed this plan when he was in the thickest of his personal legal problems. It has been suggested that his evacuation plan is a ploy to divert attention from his legal problems, and to ingratiate himself with Israel's legal system, which is perceived by many as leftist. There is also the suggestion that since many politicians in the West refers to Sharon as a war criminal and his name is associated with Sabra and Shatila (all of these allegations are of course unjustified), he wants to erase this from his record and to go into history as a peace maker - no matter how unrealistic and wishful-thinking this "peace" is. I hope that you will agree that these possibilities too have to be considered in well-informed public debate about the objective merits of the proposed evacuation.

Statements (A) and (B) below summarize some relevant facts about Jewish national rights in Palestine according to international law. On the basis of this legal background, I proceed to describe five paradoxes in Israel policy that are harmful to Israel's well-being and call on Israel's legal system to look into these paradoxes and to create the legal conditions to remedy the situation.

A. JEWISH NATIONAL RIGHTS IN PALESTINE ACCORDING TO THE LEAGUE OF NATIONS MANDATE AND INTERNATIONAL LAW

According to the Mandate of the League of Nations, Jews were exclusively given political rights in Palestine. The duties of the mandate explicitly include the encouragement and facilitation of dense settlement of the land of Palestine with Jews and of Jewish immigration into this land. The Mandate explicitly forbids the transfer of the land out of Jewish control. According to the Mandate this Jewish settlement of Palestine is to be performed urgently and it is not allowed to freeze this activity even for one day.

Later, the League of Nations agreed to the Mandatory's (His Britannic Majesty) request "to postpone or withhold" the full application of the mandate in Transjordan (Jordan of today). The Jews were very unhappy that 80% of palestine was temporarily withdrawn from the Jewish national home.

Jewish national rights conferred on the Jewish people by the League of Nations were safeguarded in perpetuity and do not depend on a particular mandatory. The charter of the U.N. (article 80) confirms in general that rights of nations that were obtained by virtue of a mandate of the League of Nations continue to be valid and binding and this was reaffirmed by the International Court of Justice. Thus according to leading jurists of international law Israel has the right to sovereignty and to annex any territory in at least all of Western Palestine (the 20% of Palestine of the original mandate). This legal situation is confirmed and discussed in the book of the internationally reputed professor of international law, Julius Stone, Israel and Palestine, The Johns Hopkins University Press, 1981. See in particular the section on pp 121-123 entitled "Continuing Obligations Of The Mandate".

Please note that the mandate is a trusteeship (a trust) and the rights of the beneficiary - as for an individual beneficiary - persist when trustees and location of the trust are changed. Thus the transition from the League of Nations to the United Nations, or the return of the mandate by the U.K. to the U.N., do not affect the rights of the beneficiary - the Jewish people. That this is the legal situation is confirmed by many professors of international law. I take the liberty to single out Professor Eugene Rostow who, like Professor Julius Stone, has written much about this and confirmed the above. His last two articles on the subject are republished in the on-line journal Think-Israel (http://www.think-israel.org/rostowNR.html). He formulated the UN 242 decision and was under-secretary of state in the administration of President Lyndon Johnson.

Here is what Alistaire Cooke, the the great British-American known for his Letter from America, said about Eugene Rostow on the 16 December 2002 and rebroadcast in 2004 (for the complete text see "Remembering a dear friend" on the BBC web-site).

Alistaire Cooke emphasizes what a fine and decent character Eugene Rostow had, and of particular relevance to us is that Eugene Rostow was a liberal. For example Alistaire Cooke says:

The point is that there is nothing extreme or right-wing in (A) and (B) above. It is simply a statement of a fact that some choose to ignore but most are ignorant about its existence.

Taking into account statements (A) and (B) above, it becomes obvious that the five self-defeating paradoxes enumerated below constitute improprieties and illegalities all pointing in the same direction, in a direction of unexplained disregard of Jewish national rights according to international law. This creates the impression of undue and illegal influence of factors alien to the substance at hand, and whose operation results in enhanced loss of Jewish life and limb and in encouragement of Israel enemies. So I would therefore urge you to take the necessary legal steps to remedy the situation in such a way that the conduct of the Israeli government will incorporate and use Jewish National Rights in Palestine according to International Law.

1. With reference to the announced committee headed by Dr Shavit Matias, whose mandate is to analyse all the legal aspects of the fence in view of the decision of the court in the Hague, I would like to direct your attention to the following facts. Palestinian representatives say that the fence and the settlements are illegal in international law for the same reasons: they are encroaching on Palestinian land and are expressions of the occupation.

The response of the government of Israel should have been that both are legal for the same reasons: according to international law, Jews exclusively were given political rights in at least the whole of Western Palestine. Jewish national rights explicitly include the duty to settle the land with a dense Jewish population and to encourage Jewish immigration into the land, and it is forbidden to transfer the land out of Jewish control. A trivial by-product of these national rights is the right to build roads everywhere in the regions of Judea, Samaria, and Gaza. It follows that the right to build lifesaving devices such as a fence is even more justified.

One is bound to wonder: is the government of Israel prepared to forego the justification of the fence - that, according to the government, saves lives - in international law merely in order not to give legitimacy to the settlements, in view of its intention to evacuate settlements and transfer the land out of Jewish control? I trust that you will look into this paradox. The contradictory and ineffective behaviour of the government of Israel appears to act against Jewish-Israeli interests. A legal review within Israel's highest legal system would likely lead to a change in the way Israel presents the legal case of the fence.

2. At least since Oslo began, a most common occurrence in international TV and Radio is an official Israeli representative, usually a diplomat from Israel's Ministry of Foreign Affairs (MFA) or from the Prime Minister's office, being interviewed together with an official Palestinian (or Palestinian-friendly) representative. Whatever the question that is put to him, the Palestinian representative usually ignores it and instead talks about the 'oppressing occupation' and in particular about the illegality of the settlements according to international law. Amazingly, the Israeli representative never responds to this and never even alludes to the fact that the settlements are legal in international law (in fact the settlements are not just compatible with international law but this law prescribes the compulsory and urgent encouragement and facilitation of dense Jewish settlement in at least all of Western Palestine). They act as if statements (A) and (B) in the legal background above do not exist.

The accumulative effect of this absolute refraining of all official Israeli representatives from defending the legality of the settlements has been the single most destructive element to Israel's image abroad. Approaches to Israeli diplomats imploring them to change this self-defeating recurring pattern have always yielded the same response: we cannot defend the settlements in public since this is the policy determined at the highest level by the Minister of Foreign Affairs and the Prime Minister. (In practice, the two individuals most responsible for this self-defeating policy have been Mr Peres and Mr Sharon.)

This irresponsible policy, in existence at least since the beginning of the Oslo process, is totally invariant with no exceptions and it is never explained why this is so. It has made some of the most objective people of good will anti-Israel; it has been the direct cause of various boycotts of Israel; it has increased motivation among Israel's enemies (terrorists too are ignorant of the real legal-historical facts) and has directly caused much loss of life and limb. I would like to ask you to look into this matter and to urgently remedy this costly self-defeating policy. After all, if you have taken somebody else's country you cannot get away with this just by pointing to exploding buses.

3. The same policy as in point 2 is implemented in the state-run Israel's media. For example, in the long discussion of the decision of the court in the Hague about the fence in Shabbat's Yoman Hashavua, or in the program dedicated to law with Moshe Hanegbi and other legal experts, both programs of reshet beth (second channel) radio, no mention was made about the legal facts summarized in (A) and (B) and their applicability to the legality of the fence as explained in paradox 1 above. Another example is the Haarachat Mazav program on Reshet beth that often has as a guest Dr Alon Liel. One would expect an ex-general manager of Israel's MFA to be keen on explaining that the settlements are legal in international law. Instead he, of all people, is fond of stating on Israel's media and on Haarachat Mazav that the settlements are illegal in international law.

Following one of these Haarachat Mazav programs, the head of correspondents of Kol Israel, when approached, was reluctant to bring a legal expert to this program to explain why the settlements are in fact legal in international law. He explained his reluctance by saying that Israel's radio has to prepare the public for the uprooting of the settlements. This was well before the current Gaza evacuation plan was suggested by any politician! This scenario is reminiscent of paradox #1 about the fence: it seems that the goal of delegitimizing the settlements, in order to make it easier to remove them in the face of public opinion, justifies concealing true objective historical-legal facts from the public.

4. On a priori grounds a reasonable person would assume that the fundamental legal-historical facts would be one of the fundamental things taught in all of our schools. It is yet another self-defeating paradox that the opposite is true: generations of Israelis were brought up without even a mention that a body like the League of Nations existed. Essentially without exception the entire Jewish population of Israel is ignorant about Jewish national rights in Palestine according to international law. This includes individuals that are otherwise very knowledgeable. An urgent affirmative action is required to remedy this situation.

5. Whereas the dictates of international law explicitly mandate any current government of Palestine, Jewish or non-Jewish like the British, IN PERPETUITY, to URGENTLY ENCOURAGE dense Jewish settlement in at least all of Western Palestine; and

Whereas international law forbids the transfer of any part of the land of Palestine out of Jewish control; and

Whereas recent Israeli governments initiated themselves plans such as "Oslo", the "road map", "the evacuation of Gaza and North Shomron euphemistically called disengagement" which are antithetical to the dictates of international law; and

Whereas the Israeli governments should have been the first to uphold (and enunciate its existence internally and to the world) this international law since it corresponds to Jewish and Israeli interest; and

Whereas the desperate and unrealistic Israeli initiatives for peace are at variance even with the policy of earlier left-wing Israeli governments without being able to point out to a fundamental change of conditions on the ground; and

Whereas all pre-Oslo Israeli governments (including labor administrations) and previous American administrations were strongly committed against the notion of ANOTHER Arab Palestinian state in Palestine (also, a twenty third Arab state is contradictory to the many assertions of the Arabs and the Palestinians themselves that all the Arabs are one nation, so by their own logic they deserve one state only. Indeed all the international agreements, for example the Feisal-Weizmann agreement of 1919 at the peace conference of Paris, refers to the division of the Middle East to an "Arab state" (one only) and to a Jewish state, called in these documents "Palestine". It is a major concession on the part of Israel not to object to the existence of 22 Arab states, which means 22 votes in the U.N. etc. Note also that the Palestinian insistence on the law of return for the Arab refugees means three Palestinian Arab states in Palestine and no Palestinian Jewish state); and

Whereas it is contradictory and paradoxical - not to say hypocritical - for Sharon to repeatedly say that the world will not let Israel keep the whole of the land of Israel (Note that while the whole of Palestine was destined in international law to be a Jewish state, Sharon is casting doubt that world will even let us keep the fifth of Palestine west to the river Jordan. Note also that Judea, Samaria and Gaza constitute 22% of Western Palestine and not of Palestine as has often been said by Peres, e.g., in Maariv and on Israel radio. Is it not suspicious that Peres finds it necessary to propagate misleading and untrue statements of Arafat and the Palestinians?) and at the same time he does not allow Israel's diplomats to declare openly in public and in front of the whole world that according to international law Israel is the rightful owner of the land of Israel? To quote from the Mandate of the League of Nations: "Recognition has thereby been given to the historical connection of the Jewish people with Palestine and to the grounds for reconstituting their national home in that country"; and

Whereas Sharon's newly-found, and out-of-character, motto that the world is about to deal with Israel in harsh terms and therefore Israel should take the initiative (i.e., initiate and carry out the proposed unilateral evacuation) - see for example his reaction to the decision of the court in the Hague about the fence characterized by him as a bad storm about to engulf Israel and therefore he said Israel should take the initiative - is totally unreasonable and illogical. It is like a person attacked by a bad animal that wants to devour him, so he tries to appease the animal by cutting off his own hand. Did the Arabs left Israel alone before 1967?

Indeed, leading international politicians and newspapers have said that the proposed evacuation is only good if it serves as a beginning - "to create momentum" in the language of the Guardian - for retreat from the rest of the "territories". Paradoxically, Israel's unrelenting retreat and concessions since the beginning of Oslo have substantially increased the number of public bodies and individuals that boycott Israel and openly state, the until-Oslo almost unheard of opinion, that any Jewish state in Palestine is not justified. An Israel that is unilaterally concessionary and appeasing (cf. PM Barak's concessions), and actively conceals its rights according to international law, is producing results that worsen Israel position; and

Whereas Sharon uses every opportunity to justify his proposed evacuation in statements that are meaningless logically and semantically. Consider the following quote from the Yahoo News of 18 July 2004 about the chaos in Gaza:

'Sharon said the Palestinian in-fighting showed he was right to take unilateral action rather than negotiate with Arafat's government.

'"What is happening in the Palestinian Authority proves that all the contrived efforts to show that there is someone to talk to on the Palestinian side are motivated by personal interests and are unrealistic," an official quoted Sharon telling his cabinet.'

Can somebody points to the logical deduction? It indeed appears to make sense "to take unilateral action" in the absence of a partner until one notes the euphemistic and Orwellian aspect of the expression "unilateral action". Spelled out, it means the 'destruction of a Jewish settlement by a Jewish government". He never explains why this particular 'unilateral action', the destruction, follows from the absence of a partner.

Is it therefore not unreasonable to assume that undue foreign interests and influence (and money), and possibly also wishful thinking and psychological warfare, or fatigue, senility and old age, are contributing factors to the passivity, retreat and lack of assertion in all fronts, of Israeli governments since the beginning of Oslo, and therefore it is incumbent upon Israel's legal system to look into the possibility that alien interests are involved.

In view of all that has been outlined above it is important that Israel's legal system will urgently suspend all preparations toward the proposed evacuations including the suspension of mortgage in these areas and the organization of compensations to the intended evacuees. The main demand from israel's legal system is to make sure that the whole Jewish population, and the sectors of the population of Israel that are not as whole sectors exempt from obligatory military service, are well informed about Jewish national rights according to international law. This may take some time. If after having done that they would vote for the proposed evacuations, or even vote to reduce the Jewish state to the size and location of Tel Aviv, or to abolish the Jewish state in Palestine altogether, so be it.

Dr. Yoram Shifftan has published many articles on Israeli hasbara, in publications such as Ha'aretz, Ma'ariv, Hatzofeh, Hamodia and Ha'Uma, Think-Israel and Jewish Internet Association. He has also presented a special series about hasbara on Arutz-7 radio.

You may wish to underscore Dr Shifftan's arguments by faxing the attorney general. His address is 29 Salah-a-Din St. Jerusalem 91490 and his fax number is: 02-627 4481.