Israel’s Strangest Self-Defeating Paradox:  Forgetting to Teach Itself and the World Jewish National Rights in Palestine

Dr Yoram Shifftan 

(An open letter to Israel\'s attorney-general Menachem Mazuz)

Introduction

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

I guess  that those who are not self-hating thought to themselves that this is too nice to be true, that there must be some major counter-argument. They may have thought that it is highly unlikely that a nation will 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 the overriding principle of international law that Palestine belongs to the Jewish people.

The reason I decided to write to you is that bringing to the fore what Israel has forgotten is the single fundamental that is most likely to change Israel\'s  image in the world, and also to substantially reduce the motivation for violence and terrorism against the citizens of Israel and Jews in general, i.e. it is literally lifesaving, so it would be highly irresponsible to go on ignoring it.

It also has a bearing on current problems. For example Israel\'s right to build the 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.

Self-Defeating Paradoxes – Main Characteristic of Israel’s Behavior

Since about the beginning of the Oslo process Israel has been in retreat, on the ground, in internal education and hasbara and in explaining the justice of its cause, and in the way  Israel is represented by its diplomats. Passivity, defeatism, intellectual mediocrity, illogicality and self-contradictory statements and behavior,  characterize its conduct. Israel makes only appeal to the atrocities committed against its civilians. It is too timid to appeal in public to its national rights enshrined in international law. The objective observer can duly conclude that Israel has usurped the land of other nations as it is indeed universally believed. To a large extent we have ourselves to blame for the fall in Israel\'s image abroad and for the associated increase in Judeophobia. If one even hides from one\'s own population true historical-legal facts which happened 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, an attempt which includes active concealing, by Israel\'s ruling class and it servants in the civil service, from the Israeli and international public, 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 then for example the present Likud administration. The retreat, in the most general sense of the word, affected by recent Israeli administrations is unparalleled in the annals of nations and usually occurs only in nations that were defeated in the battle field. Israel\'s generalized retreat broadcasts weakness and this is the cause of further aggression towards the Jewish state and Jews in general resulting in further loss of Jewish life.

The situation involves a major loss of national assets, life and limb, contradictory and self-defeating behavior, and it is bound to create the impression that Israel\'s leaders are corrupt and bought from the outside or 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 take these manifestations seriously and assume as a working hypothesis that some outside agencies are hard at work to subvert Israel from within.

Examples of this behavior of Israel that is characterized by a wishful-thinking detachment from reality and by self-defeating  contradictions abound. For example, in relation to other democracies, to the Americans for example, Israel almost does not use its air force in built-up area. But when it is suggested to our diplomats, who are often summoned to the international media, to say to the world some of the historical precedents of democracies using the air force in such areas and thus allowing Israel greater use of its air force and save Jewish life, 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 behavior, and as we know the world\'s media did not even appreciate it and uncritically accepted Arab lies about a \"massacre\".

Another self-defeating behavior relates to the Arabs permanently parading 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 that were forced to move great distances often from places where they preceded the Arabs.

I have dealt with some of these self-defeating contradictions in Israel\'s hasbara elsewhere, and my intention here is to focus on Israel\'s failure over many years to teach its own population and the world at large the founding Jewish national rights in Palestine according to international law. Worse, there is a deliberate attempt on the part of Israel\'s rulers to conceal these rights from the public at home and abroad.

The Absolute Need to Delay All Preparations for Evacuation

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 would like to ask you to help with identifying 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 which are not traditionally involved in the Middle East, and other external sources, are within the law and 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 the above alluded-to outside agencies are not behind the out-of-character behavior of the present Israeli government. Out-of-character behavior is often an indication of the existence behind the scene of illegal extraneous agencies and of the existence of undue 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 - in fact to an enemy - should not be done in a hurry. My experience is that on the one hand the Israeli population is totally unaware of the existence of Jewish national rights in Palestine according to international law. On the other hand a long experience has convinced me that there is a stubborn and deliberate effort on the part of the highest echelons of Israeli society to hide from the population in Israel the existence of these Jewish national rights according to international law. Even for this reason alone, it does not make sense to proceed with the proposed evacuation plans until we are sure that at least 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 the willful unprecedented gifting of national land makes any sense to consider. In view of the hitherto total neglect to teach these national rights, an educational effort to inform the public about these national legal rights may take years to accomplish.

3.    Since 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 now 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 is imposed with artificial urgency. Sharon came to power on the basis of a long-standing manifesto of a party (not as an individual) that is antithetical to such an evacuation plan. The ferocity of the atrocities of the intifada was such that every candidate of the Likud would have been elected with a similar landslide victory. 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 in this referendum. 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 in order to have a public debate of such momentous decision. The public is entitled to know such reasons in particular since generations of pioneers devoted their life, 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 will not attack.

6.    Also please note that there is a difference between a decision to begin now to build Gush Katif from scratch,  and destroying what is here anyhow - the material waste involved in such a destruction is enormous and for no good reason; it will only involve the loss of strategic depth and effectiveness on the ground and will not even result in less soldiering  since this will only shift to Israel\'s interior which is abnormally small anyhow. It is explained elsewhere (see for example Yoram Shifftan and Bernice Lipkin in the recent issue of the on-line journal: think-israel.org) that the proposed evacuation has nothing to do with demography. The loss of moral and pioneering spirit and the prospect of civil war are unparalleled in Jewish history. The departure not only from the dream of 2000 years of exile but also from traditional Zionist pattern of behavior is obvious and paradoxical if we recall that the Jewish-Zionist ethos has always and for many decades been  based on the settlement of the land. This was done under hostile (Turkish, British) governments at great personal and national sacrifice; suffice it to mention names such as Tel Hai, Degania, Gush Etzion, Negba, Kefar Darom, Homa ve Migdal. By contrast it is proposed here that a Jewish government will dismantle already existing Jewish settlements - in fact transfer the land to the enemy which in many countries is considered a treason. And this is to be done not under the pressure of a major military defeat. Thus the proposed evacuation as much as the general continuing retreat since Oslo, in particular under a Jewish government, is contradictory to the essence of Zionism and is a pointer to undue and illegal influence.

7.    Sharon came with this plan when he was in the thickest of his personal legal problems. It was suggested that his evacuation plan is a ploy to divert attention from his legal problems, and also to ingratiate himself with Israel\'s legal system which is believed by many to be leftist. There is also the suggestion that since many politicians in  the West refer 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 would agree that these possibilities too have to be discounted, in particular through well-informed public debate about the objective merits of the proposed evacuation.

Legal Background

Statements (A) and (B) below summarize some relevant facts about  Jewish national rights in Palestine  according to international law, rights which are totally unknown to the population of Israel and of course abroad. On the basis of this legal background I proceed to describe 5 paradoxes in Israel policy which are harmful to Israel well-being and call on Israel\'s legal system to look into these paradoxes and to create the legal conditions so as to remedy the situation described in these paradoxes.

                

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 exclusively were given political rights in Palestine. The duties of the mandate - and Jewish national rights - 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 in any way. According to the mandate this Jewish settlement of Palestine has to be performed urgently and it is not allowed to freeze this activity even for one day.

\"Palestine\" above includes the Golan and what is today Jordan. Later, the league of Nations agreed to the Mandatory (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.

B.    Continuing Obligations of the Mandate

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 United Nations (article 80) confirms in general that rights of nations that were obtained by virtue of a mandate of the League of Nations are still 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 in 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 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 I am aware of are republished in the on-line journal think-israel.org.  He formulated UN 242 decision and was under-secretary of state in the administration of President Lyndon Johnson.

Here is what  Alistaire Cooke, this the great British-American institution, 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\" in the BBC  Web-site)

\"But very soon I learned that he was an intellectual whizz, graduating after four years at Yale when he was 19, when most students are in their second, their sophomore year.

At the age of 40 he became dean of the law school, had several famous pupils, including two later presidents, and in 10 years made Yale law school quite possibly the finest in the country.\"

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:

\"He was the first public official of any standing who, in the wake of Pearl Harbor, angrily protested the unconstitutionality of herding practically the entire Japanese American population of California, three generations, into detention centres for the rest of the war.\"

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.

Self-Defeating Paradoxes

Taking into account statements (A) and (B) of the legal background 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 creating 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 increased motivation 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 and whose mandate is to analyze 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 would look into this paradox. The contradictory and ineffective behavior of the government of Israel appears to act against Jewish-Israel interest. It is urgent that a legal review within Israel\'s highest legal system would lead to a change in the way Israel presents the legal case of the fence.

2.   At least since Oslo began, the most common occurrence in international TV and radio is an official Israeli representative, usually a diplomat from  Israel\'s MFA or PM\'s office, being interviewed together with an official Palestinian  (or Palestinian-friendly) representative. Whatever the question that is put to him, the Palestinian representative would usually ignore it and instead would always talk about the \'oppressing occupation\' and in particular about the illegality of the settlements according to international law. Amazingly, the Israeli representative that is interviewed simultaneously will never respond to this and never even allude 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), as if statements (A) and (B) in the legal background above do not exist.

The cumulative effect of this absolute refraining of all official Israeli representatives from defending in public the legality of the settlements has been  the single most destructive element to Israel\'s image abroad. Many 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 from at least since the beginning of the Oslo process is totally invariant with no exceptions and it is never explained why it is so despite many approaches,  it has made anti-Israel even of the most objective people with good will, 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 country you cannot get away with this just by pointing to exploding buses.

3.   The same policy as in point 2 is implemented in Israel’s state-run 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) in the background above and its significance to the legality of the fence as explained in paradox 1 above. Another example is the Haarachat Mazav program in 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  according to (A) and (B) in the legal background above the settlements are legal in international law. Instead he, of all people, is fond of stating on Israel\'s media and in 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 motivated 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 number-one about the fence mentioned above: It seems that the goal of de-legitimizing 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 founding legal-historical facts summarized in (A) and (B) above 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 exists, let alone educated about Jewish national rights according to international law. I have ascertained that essentially without exception the entire Jewish population of Israel is totally ignorant about Jewish national rights in Palestine according to international law  including (A) and (B) above. 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\",  \"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 requirement of law of return  means three Palestinian Arab states in Palestine and no Palestinian Jewish state in Palestine at all; 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 in 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 not to 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 as summarized in (A) and (B) above; 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 its totality so he tries to appease the animal by cutting his own hand. Did the Arabs leave Israel alone before 1967? Indeed, it is not just that leading international politicians and newspapers 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\", but also paradoxically Israel\'s unrelenting retreat and concessions since the beginning of Oslo, while the other side has systematically reneged on his obligations,  has substantially increased the number of public bodies and individuals, in addition to the Arabs, that boycott Israel and openly state, the until-Oslo almost unheard of opinion, that  any Jewish state in Palestine  at all is not justified. It can be said that it is empirically proven that an Israel that is unilaterally concessionary and appeasing (see e.g. 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 point to the logical deduction. It indeed appears to make sense to \"to take unilateral action\" in the absence of a partner until one notes the  euphemistic and Orwellian aspect of the expression \"unilateral action\" which spelled out means \'destruction of a Jewish settlement by a Jewish government\". Why this particular \'unilateral action\', the destruction, follows from the absence of a partner he never explains.

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 (including wishful thinking) are involved, and then act so as to minimize the alien interests.

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 including (A) and (B) above, of which they are at the moment totally ignorant. This may take some time. If after having done that they would vote for the proposed evacuations, or even 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