August 28, 2023
The Australian government is once again playing politics and law games with parcels of land, more disputed than any on Earth. Its Foreign Affairs minister, Penny Wong, announced that the government would revert to regarding the so called West Bank as “Occupied Palestinian Territories” (OPT).
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“The Australian government is strengthening its opposition to settlements by affirming they are illegal under international law and a significant obstacle to peace,” Wong said. “In adopting the term, we are clarifying that the West Bank, including East Jerusalem and Gaza, were occupied by Israel following the 1967 War, and that the occupation continues.”
By adopting this provocative stance, Australia made common cause with a spectrum of countries, forums, law courts, cause groups, and anti-Semites using OPT to make Israel an outcast among the nations, the lone prey for packs of circling wolves.
Who are the most invested stakeholders, and what stakes are up for grabs?
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(1) For Israel, OPT presents an existential threat of sovereign fiefdoms ruled by terror groups in walking distance of downtown and suburban Israel. To forestall such a threat, her leaders have to skate on slippery diplomatic ice.
(2) For those promoting or applying international law, OPT relegates it to a Mickey Mouse league.
(3) For dreamers of a Two-State Solution, OPT is a consoling interim prize.
(4) For perhaps nine tenths of U.N. members, OPT moves them a step closer to canceling the right of Israel to exist.
(5) For America and Europe, it remains a handy lever to get Israeli leaders to do their bidding.
(6) For all players, OPT means a continuous wrestling match with no holds barred.
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The hard reality, though difficult to stomach, is that there has never been Palestinian territory for Israel to occupy for the simple reason that Israel captured, fair and square, Gaza from Egypt and the West Bank from Jordan. Upend Middle East wars and laws, and nothing remotely “Palestinian territory” falls out.
There are historical events one may dare anyone to dispute. In the war of 1948, Egypt took the Gaza Strip, and Jordan took Judea and Samaria, the so-named “West Bank.” Egypt did not claim sovereignty in Gaza, but in 1950, Jordan annexed Judea and Samaria. Penny Wong to kindly attend: Jordan’s annexation was not recognized by the international community, other than by Pakistan and Britain. Give her a chair, please, someone, because Arab countries themselves objected to what Jordan did. The Arab League threatened to kick it out.
Nineteen years later, during the Six-Day War of June 1967, Gaza and the “West Bank” — earmarked, Penny Wong! — the national home of the Jewish people, by the binding Mandate Charter of San Remo of 1920, came under Israeli control.
For nineteen illegal years, Jordan ruled the West Bank. From 1948 to 1967, it could have created a state of Palestine. It did not — a crying shame, because Penny Wong would have told the truth in asserting that Israel occupies Palestinian territory. Instead, she tells it all wrong. The king of Jordan, if you please, gave West Bank–dwellers Jordanian nationality!
Then there’s the landmark Security Council Resolution 242 of 1968. This required Israel to withdraw from some of the territory it had conquered. No! come shouts from the enemy camp. Resolution 242 told Israel to withdraw from all territory, not from just some of it. Some or all — quite how it connects to the OPT narrative is not explained. It could be a bridge too far for those wanting Palestine to prevail. It cannot. Resolution 242 of 1968 was adopted to end the state of belligerency among the warring parties…who were none other than Israel, Egypt, Jordan, Syria, and Lebanon. No Palestinian people in sight with Palestinian territories to be occupied.
So here’s the puzzle: when and how did the territories become “Palestinian” and occupied by Israel? But wait. That would be putting the cart before the horse. At what propitious point in time did the Palestinians emerge as a people? After all, there must be Palestinians to claim their Palestinian territory. Not to be pedantic, but select an assortment of Ivy League law professors staking their comfortable careers on OPT, and ask them to do a simple thing: please refer to one international instrument of law that refers to the Palestinian people. In short, to hold fast to OPT is to indulge a vivid daydream.
How can it possibly be that professors — of international law! — indulge in that pleasant pastime, and not just some, but the vast majority? In fact, they happen to be the biggest daydreamers of all. There’s even a sub-species. It consists of law professors so transfixed by the article of faith that Israel occupies Palestinian territory as to volunteer their very expensive time to pursue the occupying Jews. As a U.N. “rapporteur,” they work stints at the Human Rights Council, and the reports they submit to council members disclose that they act as cop and prosecutor in one.
These operatives with a fancy title are not your quintessential ivory-tower academics. Consider Richard Falk, the ex–Princeton Law professor. The board of Human Rights Watch removed Falk for toxic anti-Semitism. For one thing, there was the cartoon he posted of a Jew in the guise of a slavering dog, which even Nava Pillay, the U.N. high commissioner for refugees, as anti-Semitic as they come, conceded was a Jew-hating cartoon. Falk also accused Israel of Nazi methods and maintained a cozy relationship with Hamas, the terrorist group. He advocated for BDS and recommended an oddball book titled The Wandering Who?
More wayward still were Falk’s conspiratorial beliefs. How many professors of law espouse that the “U.S. was behind 9/11” or blame Israel for being the ultimate cause of the Boston bombing (“UN’s Richard Falk endorses 9/11 ‘inside job’ theory.” UN Watch, March 21, 2011)? Yet Falk was not untypical of the rapporteurs who succeeded him, each one more brazenly bigoted than the last.
The misnomer OPT is no tempest in a teapot. To the contrary, it makes a life-or-death difference. On its back, terror groups get leeway and money to sow murder and mayhem. Out of the contagious and lucrative lie sprang the “cycle of violence” between “dispossessed” Palestinians and “usurper” Israelis. The cycle means that the former have a legitimate reason to kill the latter, who have a right (reluctantly given in bad faith) to self-defense.
And even that disgusting “latitude” has been degraded. Today, the mandate of the Human Rights Council rapporteur to criminalize Israel has passed to the hands of Professor Francesca Albanese. “Israel” she said, “has a right to defend itself, but can’t claim it when it comes to the people it oppresses or whose land it colonizes.” Her offering Jews the right to life with one hand and confiscating it with the other is cute. Supposedly, Penny Wong, representing Australia at the U.N., would call that even-handed justice.
Eugene Kontorovich, a professor at the George Mason University Scalia Law School, director of its Center on the Middle East and International Law and head of the international law department at the Kohelet Policy Forum, learns from this episode with the Australian government that “forces more powerful than legal analysis shape countries’ positions on [OPT].” We may take it that by “forces,” he means that OPT is no more than a political objective, an aspiration, a denial of history and of law.
Steve Apfel, a veteran authority on anti-Zionism, is a prolific author of non-fiction and fiction. He blogs at Balaam’s curse.
Image via Pxfuel.
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