A Legal Strategy for Area C
Supporters of Israel are at an historic legal crossroad. The government of Israel is contemplating the formal extension of Israeli sovereignty over the Jewish settlement blocs and the Jordan Valley – an area comprising less than 30% of what is known as the West Bank. The territory to be annexed is in a portion of the West Bank legally designated as “Area C”. Thereafter, the Area C territory outside the settlement blocs (including the Jordan Valley) will be subject to an indefinite Jewish building freeze, potentially altering the legal rights of Jewish Area C residents in that territory.
The following is intended as a backgrounder and legal primer for readers who support the legal right of Jewish residence across the West Bank (otherwise known as Judea and Samaria). It is intended to stimulate debate and to provide strategic clarity for those activists who are currently unaware as to the urgent stakes involved in securing those rights.
This information is presented in the form of a fictional dialogue. The scenario: A Jewish resident of Area C walks into a lawyer’s office.
Jewish Resident: I’m the head of a group of Israeli Jewish residents in Judea and Samaria. We’re looking for a lawyer to advise us on how we might best go about securing our legal rights to this territory.
Lawyer: Are you talking about securing your rights as an existing resident, as a Jew, or as an Israeli?
Jewish Resident: Is there a difference?
Lawyer: Absolutely. As a current resident, you have certain rights in this territory that exist above and apart from any rights that might be claimed by non-resident Jews or Israelis.
Jewish Resident: How so?
Lawyer: Well, it’s complicated. So, let’s back up a bit and review how you came to be a resident. In other words, what is the legal basis for you being there in the first place?
Jewish Resident: It’s our land.
Lawyer: According to whom?
Jewish Resident: According to the Torah. According to Jewish law.
Lawyer: Well, I’m not a rabbi. I’m a lawyer. So, if you want my advice, I suggest we keep this discussion grounded in the secular realm of international law and what we’ll call “common law principles.”
Jewish Resident: Okay. I know that soon after the First World War, the League of Nations formally recognized Britain’s mandate to administer Palestine as a national homeland for the Jewish people.
Lawyer: Correct. So, let’s start there. Under international law, Britain became the new administrative sovereign over the area to be designated as Mandate Palestine by reason of conquering it from the former sovereign, the Turkish Ottoman Empire. In 1923, Turkey formally renounced its sovereign claim over Palestine, and so, the terms of the Mandate would govern the legal basis of any and all collective settlement rights in Palestine under international law. Under that Mandate, the Jewish people had secured collective national rights to settle across the entire territory of Mandate Palestine west of the Jordan River.
Jewish Resident: Wasn’t Jordan part of the Palestine Mandate?
Lawyer: I see where you’re going with this. After the war, the Allied Supreme Council eventually established the recognized borders of what would become Syria, Lebanon, Iraq, Palestine, and yes, Jordan. For the purposes of this discussion, suffice it to say that the Jewish settlement terms of the Balfour Declaration - which is really what we’re talking about here – were only formally adopted for the Palestine territory west of the Jordan River. So, let’s keep our discussion focused there, and then trace out what happened to collective Jewish settlement rights in various parts of that territory over the succeeding years. Prior to 1948, Britain was holding the Palestine Mandate territory in trust. Whichever nationality would eventually become sovereign in any portion of the Mandate remained up for grabs.
Jewish Resident: Okay, I see where you’re going with this. Are you saying that, in 1948, we lost our collective settlement rights to that portion of Palestine territory – the West Bank - that was eventually conquered by Jordan?
Jewish Resident: Well what about the 1947 UN General Assembly Resolution 181 that recommended the partition of Palestine into independent Arab and Jewish states?
Lawyer: That was a recommendation. The Jews accepted it; the Arabs rejected it. In any case, a General Assembly resolution cannot create or revoke national sovereign rights under international law, Nor did the Jews renounce their existing national settlement rights in any part of Palestine, since the Arab residents had rejected the opportunity to establish a competing national sovereignty over any portion of it.
Jewish Resident: So, what happened to Jewish collective settlement rights in the West Bank once Jordan conquered it?
Lawyer: That’s a good question. The better question is whether the Palestinians acquired any national sovereign rights over the West Bank by reason of Jordan’s conquest.
Jewish Resident: Well, we know that the Jewish people collectively acquired sovereignty over the State of Israel because they managed to secure that portion of Palestine. So, why not Jordan over its portion?
Lawyer: Well, for one, Jordan – in its capacity as a nation state – had no national claim over any portion of Palestine land west of the Jordan under the terms of the Mandate, while the Jews did. The only people who could have claimed any national rights in that territory were the residents in that territory – Jews, Arabs, or both together. When Jordan conquered that territory, it did not have the right under international law to unilaterally extinguish existing collective Jewish settlement rights in the West Bank. Most importantly, the Jews never collectively renounced it.
Jewish Resident: So, what about the Palestinian residents of the West Bank?
Lawyer: Well, there’s the irony. While the Palestinians never renounced their personal settlement rights in that portion of Palestine that became the State of Israel, they arguably renounced – or, at best, failed to claim – national sovereign rights to any portion of Palestine territory west of the Jordan. And that includes the West Bank portion that had been administered by Jordan.
Jewish Resident: Well, they’re arguing otherwise nowadays.
Lawyer: The key here is that we’re tracing out the current legal basis for your residence in the West Bank. To do so, we have to distinguish between personal rights of residence and collective national rights.
Jewish Resident: Why is that important?
Lawyer: Because international law must be consistent in its application. The Palestinians have raised personal claims of residence and national claims of sovereignty. The two claims are discrete, and do not necessarily overlap. In the Palestinian case, the Arab residents of Palestine had continued to assert their personal residence claims while renouncing – or, at best, failing to make – a claim of national sovereignty.
Jewish Resident: I’m confused. This sounds like a distinction without a difference.
Lawyer: Oh, but it’s a distinction that makes a huge difference under international law. When Jordan conquered the West Bank, did the Palestinians request that Jordan assign collective national sovereignty to them? To the contrary, the Palestinians specifically renounced any national sovereign claim over the West Bank. It’s right there in the PLO Charter, which the Palestinians claim as their national document. In it, the Palestinians viewed Palestine as an inseparable part of a Greater Arab Nation, comprising Egypt, Jordan, Iraq, Lebanon, and Syria. But this “Greater Arab Nation” did not – and does not – exist under international law. From 1948 up until 1967, the Palestinians had every opportunity to seek national sovereignty over that portion of Palestine – the West Bank - that had been secured by Jordan. Since the Palestinians claimed the PLO as their designated legal representative, then the fact stands that the PLO renounced any claim of Palestinian national sovereignty over these territories during that period.
Jewish Resident: Okay, but can’t the same argument be held against Israel? In 1967, the State of Israel managed to conquer the West Bank from Jordan. The Jews now had the opportunity to formally assert their collective national sovereignty over this territory, but they failed to do so as well. So, does that mean that we renounced our national claim over this portion?
Lawyer: First of all, let’s not confuse national sovereignty with national rights of settlement. In the Jewish case, the collective right of settlement in Palestine pre-dated Israel’s assertion of sovereignty over any portion of it. When you assert national sovereignty over a territory, you have the sovereign ability to determine which outsider can or cannot enter your territory as a resident.
Jewish Resident: But once Israel took the West Bank from Jordan in 1967, didn’t it become the new sovereign under international law?
Lawyer: By 1967, international law and custom had changed. A nation state could not claim sovereignty over territory claimed in war, especially in cases where the majority of residents were not citizens of the conquering entity. But Israel’s case was different, since it could conceivably claim sovereignty, not in the name of the state itself, but in the name of the state’s majority Jewish residents who still retained unextinguished national rights of settlement across the West Bank. As of 1967, the national sovereign status of the West Bank had yet to be determined. The problem, however, was that – unlike in the territory declared to be the State of Israel – the residential base across the West Bank was entirely Palestinian.
Jewish Resident: If that’s the case, then all the Palestinians had to do after 1967 was to declare national sovereignty over the West Bank?
Lawyer: Ah, but here’s the problem: A national entity must first be in possession of the territory over which it is asserting national sovereignty. Up until 1967, the Jordanian government was at least the disputed administrator in possession of these territories. But its administration – in collusion with the Palestinians themselves – failed to assert any Palestinian national claim over these territories.
Jewish Resident: So, you’re saying that the administrator of the territory is in “possession” of that territory, even if its sovereignty isn’t recognized?
Lawyer: Correct. Under international law, Israel’s status in the West Bank is recognized as that of an Administrative Authority, to which certain responsibilities fall on it under the Law of Occupation. Israel also views its current status as an Administrator over those portions for which it has not formally claimed sovereignty. Hence, it calls itself the Administrative Authority when dealing with any unannexed portions of the West Bank.
Jewish Resident: So, you’re saying that, under international law, the Palestinians can’t assert national sovereignty over the West Bank unless they have created a national entity in that territory to do so. – like the State of Israel did for its national territory.
Lawyer: I’ll put it in simpler terms: When the residents collectively control a territory, they have the legal standing and ability to assert national sovereignty in their collective name.
Jewish Resident: Like the Jewish residents did in 1948 over that portion of territory they managed to secure for the State of Israel.
Jewish Resident: So, now that the State of Israel is in control of the West Bank, why can’t the Israeli government just unilaterally assert its sovereignty over the whole territory?
Lawyer: Well, technically it can, but it won’t. It will over some, but definitely not over most of it. More to the point, did you ever consider why it refused to annex the bulk of the West Bank since 1967?
Jewish Resident: Because the world opposes it?
Lawyer: It’s a factor, but not really. The world opposed Israeli annexation of East Jerusalem and the Golan Heights. But that didn’t stop Israel from doing so. Ultimately, it comes down to demographics: if Israel were to annex the entire West Bank, it would have to confer Israeli citizenship on all its residents, at least if it were to continue being recognized as a democratic state. The fear of its political leaders is that if it did so, then Israel would stop being a Jewish State.
Jewish Resident: But Israel is a Jewish State.
Lawyer: Only provisionally. It is “Jewish” only insofar as a majority of its citizens are Jewish, or at least wish to identify as Jewish. In practice, Israel is a democratic state of all its citizens.
Jewish Resident: Ah, but how about Israel’s Right of Return? That’s a preferential immigration law that specifically applies only to Jews. How is that democratic?
Lawyer: Oh, you’re talking about the State of Israel’s continuation of the collective national settlement terms of the Balfour Declaration. Technically, the State of Israel is doing nothing more than affirming existing international law in regard to pre-existing Jewish rights of collective national settlement on all territory of the former Palestine Mandate west of the Jordan River.
Jewish Resident: Well, isn’t Israel doing the same thing – affirming pre-existing collective Jewish settlement rights – when Israelis come to live in the West Bank?
Lawyer: You said “Israelis.”
Jewish Resident: That’s right.
Lawyer: Would you agree that not all Israelis are Jews? And that Israeli law does not distinguish between the personal rights of a Jewish and non-Jewish Israeli citizen?
Jewish Resident: Except for Israel’s Law of Return, yes.
Lawyer: Which applies to the right of a class of non-citizens to immigrate. This law is not terribly controversial under international law. Germany had recently applied it for ethnic Germans living in the Soviet Union, as has Greece for Pontic Greeks who hadn’t lived in mainland Greece for millennia. Nationally based Right of Return laws are acceptable under international law, particularly when dealing with historic national homelands. But in Israel’s case, its law is nothing more than the codification of a right that was actually affirmed by the international community before the State of Israel even existed.
Jewish Resident: So, then, does Israel have the right to repatriate its citizens to the West Bank under the Law of Return, as it has done within its own borders?
Lawyer: You have framed the question in a manner that is highly problematic under international law. Under the Geneva Convention, an Administrative Authority cannot settle its own citizens in the territory it administers.
Jewish Resident: So, you’re saying that my residence in the West Bank is a breach of the Geneva Convention?
Lawyer: As an Israeli citizen, arguably, yes. As a Jewish resident, absolutely not.
Jewish Resident: I’m confused. Sounds like another distinction without a difference.
Lawyer: But it makes all the difference in the world. Remember the distinction I made between national and personal rights of residence?
Jewish Resident: Yes.
Lawyer: Well, you must also be careful not to confuse Israeli national rights with Jewish national rights. Historically, Israeli lawyers and political leaders have struggled to manage the inherent tension between a democratic state and a Jewish state – between national rights and personal rights. It’s this tension that has made Israel so equivocal in dealing with the West Bank since 1967.
Jewish Resident: How so?
Lawyer: Well, if it were to annex the entire West Bank, the fear is that Israel would lose its effective Jewish majority. Once you apply sovereignty over a territory, the expectation is that at least you grant the residents of the annexed territory the right to claim citizenship, as Israel has done in the case of the residents of East Jerusalem and the Golan Heights.
Jewish Resident: Well, there are only about 2 million Palestinians in the West Bank. And there are close to 7 million Jews in Israel.
Lawyer: And what proportion of those Jews support the ongoing existence of Israel as a Jewish State? There are more than 1.5 million Israeli Arab citizens. As I said before, Israel is only a provisional Jewish State. However, most of its Jewish citizens are secular, with an increasing number of them identifying nationally more as Israelis than as Jews. With the annexation of the entire West Bank, you increase the demographic possibility that a majority of Israeli citizens – Jews and Arabs alike – may one day vote to revoke Israel’s Law of Return. When that happens, Israel loses the demographic basis to ensure the protection of that proportion of its population who still identify as Jewish.
Jewish Resident: Isn’t that just an unlikely worst case scenario?
Lawyer: It’s just part of a continuum of worst case scenarios. As you well know, Israel exists under an unprecedented existential threat that just never lets up. So, let’s be frank here: To many Israeli Jews today, Israel’s status as a Jewish state is practically necessary in order to ensure a sufficiently cohesive and large Jewish demographic base in order to resist the external and internal forces that are continually seeking to subvert, undermine, terrorize, and purge the Jewish population from the region. Every day, Israeli defence planners have to make life or death decisions that require a political consensus of Israeli citizens. But we’re now at a stage where Israel needs to muster a super majority of Jewish citizens in order to get a bare majority of a Zionist-oriented government in place. And by Zionist, I really mean the securing of the demographic base to ensure the continuation of Israel as a safe and secure place for Jews to live as Jews, democratically and free from the threat of anti-Semitism and religious persecution.
Jewish Resident: Okay, so if Israel can’t practically annex the entire West Bank, then why not the entire part of it that has all the Jewish settlers, along with all the sparsely populated parts?
Lawyer: You’re talking about the portion of the West Bank designated as Area C.
Jewish Resident: Yes, Area C.
Lawyer: You do know that Area C is a legal creation of the Oslo Accords, right?
Jewish Resident: Of course. But the Oslo Accords were signed close to 30 years ago. What’s the relevance?
Lawyer: The Oslo Accords were the legal basis upon which the Palestinians were able to collectively establish their very first national authority over a portion of the former Palestine mandate territory.
Jewish Resident: You mean, for the very first time, they were able to assert a form of national sovereignty over a portion of the West Bank?
Lawyer: Exactly. In those areas that the Oslo Accords designated as Areas A and B. And, ironically, it was Israel that gave them what amounts to national possession of this territory.
Jewish Resident: By relinquishing its administrative control to a Palestinian Authority?
Lawyer: Yes. And by doing so, the State of Israel arguably extinguished the rights of collective national Jewish settlement that had previously existed in Areas A and B. In other words, the Palestinians now had a collective say in rejecting Jewish national settlement anywhere in Areas A and B.
Jewish Resident: But not Area C.
Lawyer: Not yet.
Jewish Resident: But didn’t you just warn me not to confuse Israeli national rights with Jewish national rights? So, how can the State of Israel act to extinguish Jewish national rights of settlement?
Lawyer: As they say, possession is nine-tenths of the law. Britain secured the Palestine Mandate when it obtained possession of the territory from the Ottomans. The Jewish residents of the State of Israel, in turn, obtained sovereign possession over only that portion of territory they managed to obtain after the 1948 War of Independence. In 1967, Israel obtained possession over the entire West Bank, but chose not to assert sovereignty over it (other than in East Jerusalem). Instead, it continued on as an Administrative Authority. And did so until it relinquished its administrative control over Areas A and B to a newly constituted national authority.
Jewish Resident: The Palestinian Authority.
Jewish Resident: So, the Palestinian Authority kind of filled the national sovereignty vacuum that existed in those territories up to that date?
Lawyer: For Areas A and B, yes. But not in Area C. Area C continues under the control of the Israeli Administrative Authority until such time as it chooses to assert sovereignty over it or to relinquish all or part of it to the Palestinian Authority.
Jewish Resident: In which case, it becomes part of Palestine?
Lawyer: No, in which case, it becomes part of the Palestinian Authority of Areas A and B. There exists no nation state of Palestine because a nation state must technically maintain control over its borders in order to come into being under international law. Israel has yet to relinquish such control to the Palestinian Authority. So, though it is an internationally recognized autonomous authority, it cannot legally become a nation state unless Israel agrees to it. Those are the terms of the Oslo Accords. And the Oslo Accords are the legal basis upon which the Palestinian Authority exists.
Jewish Resident: But what about all those countries that have formally recognized the State of Palestine?
Lawyer: Recognition cannot create a sovereign nation any more than UN General Assembly Resolution 181 created the State of Israel in 1947.
Jewish Resident: It didn’t?
Lawyer: Of course not. The State of Israel was created by a collective sovereign declaration of its Jewish residents in the aftermath of Britain relinquishing its administrative control over it in 1948. The State of Israel filled the vacuum of national sovereignty, and extended to all those parts of Palestine in which the Jewish residents managed to gain and assert national control.
Jewish Resident: Possession, right?
Lawyer: Exactly. It is one of those grand ironies of history that the Palestinians had no interest in asserting a national claim of sovereignty over the West Bank in those two decades when Israel had no control over it, but were only interested in asserting personal residence return rights in that portion of Palestine that became the State of Israel.
Jewish Resident: But aren’t those personal residence return rights the basis of their national claim?
Lawyer: No, because they neither claimed, nor understood themselves, to be a Palestinian nation as of 1948. The Arab residents of Palestine viewed themselves as members of a Greater Arab nation, and on that basis, welcomed the intervention of five Arab neighbouring countries to come in and divide up Palestine among themselves.
Jewish Resident: But still, didn’t they preserve a national identity as Palestinian refugees after 1948?
Lawyer: They maintained a collective identity as refugees from only those portions of Palestine that would come to comprise the State of Israel. That is a situational identity that was wholly contingent on the creation of another bona fide nation – in this case, the State of Israel. The entire point of this situational identity was to sustain the demographic basis for continually asserting the personal right of those Palestinian refugees to return to those territories that currently comprise the State of Israel.
Jewish Resident: Which the world views as the Palestinians’ moral and legal right. Isn’t their right of return secured under international law?
Lawyer: A personal right of return, yes. But international law is very stringent about this notion of distinguishing between personal and national rights. A refugee’s personal right of return is not heritable – meaning, that you generally cannot pass it on to a child or grandchild. Under international law, that right becomes immediately extinguishable once the refugee finds a suitable place of refuge.
Jewish Resident: Well, most of those refugees ended up in refugee camps, didn’t they?
Lawyer: More like “refugee” townships that happen to be administered by the United Nations Relief and Works Agency (UNRWA). Under personal injury law, there is a principle known as mitigating one’s damages.
Jewish Resident: What does that mean?
Lawyer: It means that if I injure your arm, and then you refuse treatment for the sole purpose of blaming me, you have no moral or legal right to hold me liable for additional damages in the event gangrene sets in and they have to amputate it. So, too, with the Palestinian refugee camps. In collusion with the United Nations, Israel’s Arab neighbours, and the Soviet Union, the Palestinian residents of these refugee “camps” agreed to maintain their refugee status in place until such time as Israel agreed to their return, along with the return of their descendants.
Jewish Resident: So, the whole point of these refugee “camps” was to keep their refugee status from lapsing under international law?
Jewish Resident: But isn’t that a fraud on the world?
Lawyer: More or less, except that much of the world has colluded in it. I would more accurately term it as a fraud on the State of Israel.
Jewish Resident: Well, some would say that’s rather harsh, since the State of Israel was responsible for the loss of their homes in Palestine.
Lawyer: You mean, the 600,000 Jewish residents of Palestine who fought for their lives during the six months following the Arabs’ violent rejection of UN Resolution 181? You mean, in those final months of the Mandate during which Britain allowed in foreign armed Arab militias to take up positions in Arab towns across Palestine for the express purpose of “driving the Jews into the sea”?
Jewish Resident: Yes, does international law cover that situation?
Lawyer: Indeed it does. During those six months and thereafter until the end of the war, every single place of Jewish residence across Palestine became an active or potential frontline, as did many of the Arab towns and villages straddling strategic points around areas of Jewish settlement. Now, under international law, belligerents are allowed to temporarily clear civilians from the frontlines so long as it is done in a humane manner, and only so long as the military hostilities remain in play. The key is to safely evacuate civilians behind the frontlines so that the militaries are given a free berth to operate. In the Palestinian Arab case, you had two scenarios operating: in one, the Arab armies encouraged the Arab civilian residents to evacuate behind the frontlines while those armies came in to take up strategic position in their towns. In the other scenario, Jewish forces entered some Arab towns and evacuated the residents beyond the frontlines. But Jewish civilians likewise had to evacuate their residences that were in the way of belligerent Arab armies, while – in the case of East Jerusalem and across the West Bank – the Jewish residents were forcibly evacuated by the Jordanian Arab Legion.
Jewish Resident: So, both sides were guilty of ethnic cleansing?
Lawyer: In law, context and intent are essential in determining culpability. The belligerent Arab armies declared their express intent to cleanse Palestine of its entire Jewish population, who had nowhere to retreat to, other than the sea to which the Arab armies promised to drive them. And indeed, everywhere the Arabs managed to take control – notably, in East Jerusalem, Gaza, and the West Bank – they cleared the territory of every single Jewish resident. Not so with the Jewish forces. Where Arab villages declared their intent to live in peace with the Jewish residents of Palestine, those villages were left out of the frontlines. By the end of the war in 1949, there were over 100,000 Arab residents remaining within the newly secured borders of the State of Israel. Not a single one of them was expelled beyond those borders. And over time, their numbers grew to comprise the more than 1.5 million Arab citizens of Israel.
Jewish Resident: But under international law, Israel would be obligated to take back the Palestinian refugees once the military hostilities ended?
Lawyer: You mean, would international law bind Israel to accept back in its midst a hostile population that had invited in the five belligerent nations who continued to maintain an active, decades-spanning state of war with the Jewish State? No, that would be a violation of the principles of international law. Under such circumstances, a country is absolutely not obligated to accept back a hostile population sworn to the destruction and subversion of its citizens. And then you have to consider the fact that the vast majority of Palestinian refugees never even left the territory of Mandate Palestine.
Jewish Resident: Well, they did leave Israel.
Lawyer: You mean, they left those frontlines within Palestine that became the State of Israel. But we’re not talking about a huge displaced global diaspora of refugees here. To the contrary, we’re talking about the equivalent of moving from New York to New Jersey – a displacement in some cases of no more than a few dozen or so miles from their original homes. We’re talking about Arab residents who mostly evacuated behind the frontlines of the belligerents they called in to fight for them – in the Egyptian case, taking refuge in Gaza; or a relocation into the West Bank; or across the Allenby bridge into Jordan. Here is where the overwhelming number of Palestinian “refugees” came to reside. If, at any point, those refugees would be offered – or if they accepted – the citizenship of another national sovereign, they would immediately lose their refugee status, and hence, their personal right to return to Israel.
Jewish Resident: But that was more than 70 years ago. If it’s only a personal right of return, and that right can’t be inherited, then aren’t we only talking about the rights of a very small number of surviving elderly refugees?
Lawyer: Indeed we are. And we’re also talking about “refugees” who often refused to take the citizenship – or wouldn’t request it – from the Arab nation states upon which they had (before 1967) staked their very national identity.
Jewish Resident: So why are there still refugee camps in the West Bank and Gaza? Aren’t these camps currently under the control of the Palestinian Authority and Hamas?
Lawyer: Indeed they are, which is why very few people these days – including the Palestinians – even bother pretending that these “camps” are refugee camps. They are Palestinian townships whose residents continue to receive financial support from the UNRWA. At this point, the legal fiction of the “camps” maintain a strategic importance as a bargaining chip under the Oslo Accords, so as to trade off the resolution of a fraudulent claim in the hopes of obtaining better real estate concessions from Israel.
Jewish Resident: I thought we were talking about my settlement rights in the West Bank. Why did we need to discuss the Palestinian refugee situation?
Lawyer: Because the pre-existing legitimacy of your residence claim will always be weighed against the legitimacy of the Palestinian national claim.
Jewish Resident: And my national claim to reside in the West Bank comes only by way of my status as a Jew, but not as an Israeli?
Lawyer: Correct. Here is one way of looking at it: As the Administrative Authority in the West Bank, the State of Israel has a continuing duty to implement the terms of the Balfour Declaration, particularly in those areas over which no national entity has yet asserted exclusive control and sovereignty.
Jewish Resident: And on that basis, I no longer have any national rights as a Jew to settle in the territories of the West Bank designated as Areas A and B?
Lawyer: As I said, once the Israeli Administrative Authority conceded autonomous powers to a Palestinian Authority over those areas, they effectively extinguished the national claim of Jewish settlement - at least under international law – in roughly 40% of historical Judea and Samaria. For the first time in history, the Palestinians had an organized structure empowered to assert autonomous residential powers over a portion of the Land of Israel.
Jewish Resident: And we can’t get it back?
Lawyer: Well, you can bargain to get it back.
Jewish Resident: How so?
Lawyer: By establishing an Area C Authority to negotiate with the Authority of Areas A & B.
Jewish Resident: Wouldn’t it just be easier for Israel to annex Area C and to then negotiate the terms?
Lawyer: You mean, like what they intend to do under the Trump plan?
Jewish Resident: Yes.
Lawyer: Well, first of all, the government of Israel has no intention to annex all of Area C. At most, they intend to assert sovereignty over the Jewish settlement blocs and over the Jordan Valley, But in doing so, the Israeli government will commit to freezing all Jewish settlement building beyond the settlement blocs, including in the sparsely populated Jordan Valley.
Jewish Resident: What’s their strategy behind the building freeze?
Lawyer: To preserve the rest of Area C as a bargaining chip for negotiating a final resolution with the Palestinian Authority.
Jewish Resident: You mean, the Israeli government reserves the right to give it away?
Lawyer: The areas beyond the settlement blocs, yes.
Jewish Resident: Including the Jordan Valley that they’re claiming sovereignty over?
Lawyer: No, they’ll maintain exclusive military rights over the Jordan Valley, as it serves as Israel’s strategic buffer against invasion from the east. What they’ll likely do is bargain away permanent residential rights to the Palestinian Authority. They could, for instance, negotiate permanent Israeli military control over the Jordan Valley on a long-term lease arrangement.
Jewish Resident: And so that’s why they’ll bar new Jewish settlement building in the Jordan Valley?
Lawyer: They’ve effectively discouraged new settlement there for the past 30 years since the Oslo Accords.
Jewish Resident: So, what you’re saying is that, in practice, by asserting sovereignty in this way, the Israeli government will indefinitely close off most of Area C to Jewish settlement building?
Lawyer: Yes, that’s the quid pro quo under the Trump Plan: the American Administration will formally recognize Israel’s claims to the settlement blocs and the Jordan Valley in return for Israel committing to negotiate away the Jewish national residence rights in the bulk of Area C.
Jewish Resident: But the Jewish settlement blocs are really just a comparatively small slice of Area C, aren’t they?
Lawyer: That’s right. The overwhelming majority of Jewish settlers reside just a few miles over Israel’s internationally recognized border with the West Bank, or what’s known as the Green Line.
Jewish Resident: Well, isn’t it at least a plus that an American Administration will formally recognize Israeli sovereignty over those blocs?
Lawyer: Not really. For at least two decades, it has been generally understood among all American administrations – and also informally by the Palestinian Authority – that a final resolution under the Oslo Accords would entail the Palestinians trading off Jewish settlement bloc territory near the Green Line in return for Israel ceding a comparably sized chunk of sparsely populated Israeli territory back to the Palestinians. No diplomat on either side seriously believes that Israel would cede or evacuate its main settlement blocs under any negotiation scenario.
Jewish Resident: So, then why is the Israeli government making such a big deal about this sovereignty claim?
Lawyer: Well, it’s a big deal in the sense that the Trump Administration is giving the Israeli government a much stronger negotiating position than it would otherwise have with a less friendly administration in place. As the Israeli government sees it, the real gain here is the stronger negotiation position on East Jerusalem, the Jordan Valley, and the final terms of Palestinian national autonomy. The Israeli government is hoping to move the Palestinian Authority toward accepting something considerably less than actual statehood. Moreover, this limited annexation move would help the Netanyahu government to appease its center-right constituents.
Jewish Resident: Is there any danger that Israel would concede more land if the Palestinians offered to drop their refugee resettlement claim?
Lawyer: Probably not. Just like with the settlement bloc issue, no one in the Israeli government – much less in the international community – seriously believes that the Palestinian Authority would regard its refugee resettlement demand as a deal-breaker. If the Israelis were to grant them a full nation state, a capital in East Jerusalem, and a 1:1 trade-off on Area C territory, the international consensus is that the Palestinian Authority would sign on the dotted line. And if they do so, the Arab countries and the international community would likely finance a compensation deal for the Palestinian refugees, and perhaps offer some kind of immigration slots to various Western countries.
Jewish Resident: So, if you were advising the Israeli government, would you recommend they take that deal for the sake of peace? The way you’re framing it, it doesn’t sound all that bad.
Lawyer: On paper, it sounds reasonable. In reality, it would be a disaster for Israel.
Jewish Resident: Okay, so what if the Israeli government got everything it wanted: the Palestinians conceding on East Jerusalem, along with a permanent Israeli military presence in the Jordan Valley, and an agreement that the Palestinian Authority be a quasi-state with very little discretionary control over its external borders and airspace? Would you regard that as a great deal for Israel?
Lawyer: I know that the Israeli government would. I’d advise against it.
Jewish Resident: Why?
Lawyer: Because every single one of the Palestinians’ concessions – except a highly improbable Palestinian concession on East Jerusalem sovereignty – can easily be reversed by the Palestinians in the event they decide to breach. But once Israel concedes national residential sovereignty over Area C territory, that’s an irreversible concession. When it comes to residential sovereignty, there are no take-backs under international law. The moment you concede national residential rights– as Israel has done with Areas A and B – all other competing national residence claims are permanently erased.
Jewish Resident: Are you just telling me this because I expressed an interest that our group secure settlement rights over as much West Bank territory as possible?
Lawyer: No, I’m telling you this because I sincerely believe that in the end, it would be in everyone’s best interests to one day come to a resolution that normalizes Jewish settlement across the entire breadth of the historical Land of Israel west of the Jordan River, which includes Areas A, B, and C.
Jewish Resident: I came to you for practical strategic advice, not for a utopian solution that is highly unlikely to ever come to fruition.
Lawyer: To be clear, I am being completely strategic here. It’s in recognition of the fact that a Jewish sovereign national presence anywhere in the Land of Israel is a perpetual international, regional, and religious bone of contention. I get it that the Israeli government – and probably a majority of the Israeli Jewish voting public – would eagerly bargain away portions of their sovereign territory for a reasonable and good faith promise of peace. I also get that Israeli Jews are loathe to recognize a toxic dynamic at the root of their situation. In a very real sense, they are intensely eager to make some very hard concessions – if only their opponents would give them the confidence and peace of mind to do so.
Jewish Resident: Aren’t you just reflecting what many in the international community perceive as an Israeli character flaw of historical Jewish paranoia – that “the nations are out to get us”?
Lawyer: No, let us just say that I have a clear-eyed view of both the blessing and the curse of your geopolitical and demographic situation.
Jewish Resident: Which is…?”
Lawyer: I believe that Rashi put it best when he observed that the nations would ask of Israel, “By what right do you claim this land?” Theodor Herzl thought it was because millions of Jews would never be accepted as citizens in their respective countries, no matter how hard they tried to assimilate. But after decades of successful assimilation in the Diaspora, you now perceive Israel as a refuge from assimilation, intermarriage, and cultural extinction. Herzl reasoned that Diaspora Jews would remain a uniquely global target for anti-Semitism because they remained stateless. But now, you find yourselves a uniquely global target for anti-Semitism primarily on account of your statehood. The pioneers of Zionism were convinced that they could build a secular utopian socialist state as a bulwark against hordes of hostile ethno-nationalist states. And yet here Israel now finds itself, demonized by hordes of hostile secular socialists who accuse it of being one of the few remaining ethno-nationalist states. The early Zionist visionaries conceived of Israel as a refuge for millions of European Jews. But when those Jews had an unrestricted 40 year long window of opportunity to return to Zion – from the early 1880’s up until the early 1920’s – they chose instead to stream by the millions to North America, to Britain, and to Latin America. The promise of Zion mostly had no pull on the destination choices of Europe’s Jewish masses, both secular and religious, at a time when the doors of settlement remained open to them. And by the time the storm of anti-Semitism gathered to push them out of Europe, the doors to Zion suddenly clanked shut, with the result that this great European Jewish population reservoir was forever wiped out. Israel’s Zionist visionaries conceived of the land as a European Jewish utopia, not as an ingathering place for millions of Jewish exiles from Yemen, from North Africa, Iraq, and Iran. Its founders were convinced that the rapidly shrinking pool of mostly elderly religious Jews would continue to dwindle and decay under the sunny skies of the new Zionist state, to be replaced by a burgeoning population of young secular socialists. And yet just seventy years after Israel’s founding, Israel now finds itself with a decaying and dwindling population of aging secular socialists, soon to be replaced by the burgeoning population of the ultra-Orthodox grandchildren of the once miniscule saving remnant of religious death camp survivors. That saving remnant, in turn, had followed the deluded advice of a rabbinical leadership who convinced them to stay in Europe, rejecting a mass return to the Land of Israel on purely theological grounds, that Israel could hold no religious-historical promise for their children until such time as the Messiah came to proclaim, “It’s time!” Herzl envisioned he was bringing a people without land to a land without people. “But by what right this particular land?” Rashi foresaw the nations as asking. “Are you not taking it from another nation in possession?” In response, a deafening silence from both religious and secular Jews alike. So many demographic failures, wrong-headed choices, and missed opportunities. And yet you have somehow blundered your way into a successful and thriving Jewish State that has globally ingathered the exiles from all the historical Jewish communities. And still, you find yourselves at an existential crossroad, challenged to make still more life or death choices. For both positive and negative reasons, you are an astonishment in the eyes of the nations. And yet, you just don’t have the eyes to see what made you so.
Jewish Resident: Early on in this discussion, didn’t you tell me that you wanted to keep your advice grounded in the secular realm of international law?
Lawyer: I did. But to be honest, every time I try to keep my analysis of your situation strictly grounded in law, on politics, and strategy, I am just utterly defeated. The fact is, no lawyer has the ultimate secular answer for you. Your elected politicians won’t shepherd you to that promised land of a peaceful resolution. I can only take the long view on your prospects, and the broad view on your historical circumstances, and go by what I see.
Jewish Resident: So, what do you see?
Lawyer: I see the current Jewish residents of Area C continually justifying their right to settle this area, but none of you have come together in a collective effort to formally claim that right. The Israeli government will not do it for you. Do you not find it insanely ironic that the political leaders of a presumably Jewish State can think of no better outcome for a peaceful resolution with its neighbours than to renounce the covenantal command for Jews to settle the Land of Israel?
Jewish Resident: Because they fear that the Arabs will oppose them.
Lawyer: On what grounds: Ethnic? Religious?
Jewish Resident: Both.
Lawyer: Were you not aware that the Quran specifically cites the Jews’ connection to the Land of Israel by reason of the Prophet Moses’ command for them to settle it?
Jewish Resident: Sounds like the basis for Muslim Zionism.
Lawyer: Or the view of an Arab Noahide. Take your pick. Did it not occur to you that, over the course of a century, the Arab residents of the former Palestine Mandate kept repeatedly asking you this eminently fair question: “By what right are you claiming to settle our land?”
Jewish Resident: And I told you: the Torah.
Lawyer: Okay, so you’re claiming your stake by way of the Torah. But what’s their stake in the Torah? Were you not aware that the Torah is one of the four foundational holy texts of Islam? You might want to engage your Palestinian neighbour through your common reverence of Torah.
Jewish Resident: I had no idea. But is that even relevant?
Lawyer: What’s relevant is that you appear to be in an impossible strategic situation that your contending neighbours will never relieve you from, whether you veer politically right or left. Your current situation comes with both a blessing and a curse, and you would probably do well with struggling to make the right choice.
Jewish Resident: Easier said than done.
Lawyer: Well, here’s a novel suggestion: consider the text and warnings of the Torah in the context of all the Jews’ historical failures, both recent and ancient. And then apply some liberal doses of humility, doubt, and clear-eyed common sense.
Jewish Resident: Because there is absolutely no guarantee that any choice we make will be the wise choice, right?
Lawyer: One can only hope.
Jewish Resident: Sounds like religious faith to me.
Lawyer: Faith tempered by doubt – the most healthy faith one can have. It’s another way of saying that I have a hypothesis as to how we might wisely square this circle of the Jews’ current existential dilemma.
Jewish Resident: You keep referring to “the Jews”, as if the State of Israel is somehow separate and apart from the possible solution.
Lawyer: The State of Israel is a vehicle for Jewish fate. Whether it’s a positive or negative ride really depends on the choices we make in using it.
Jewish Resident: So, provisionally, what does your gut tell you the best move should be?
Lawyer: To start, the residents of Area C need to collectively organize themselves through an appropriate vehicle.
Jewish Resident: As a kind of settlement body? We already have something like that. It’s called the Yesha Council.
Lawyer: That’s a body set up to represent the interests of Jewish settlers before the Israeli Administrative Authority. I’m talking about an organization to represent the interests of all Area C residents, whether Jewish or Arab, before the Israeli government and the entire international community. Why? Because that’s the representative body you’ll need to formally – and legitimately – assert your right to reside in Area C.
Jewish Resident: Why is it necessary to set up an Area C Authority?
Lawyer: If we’re talking about your legal interests as a resident of Area C, you currently have no legal standing to determine or to negotiate the overall fate of Area C real estate. To get that legal standing, all the residents of Area C – Jewish and Arab - need to elect a representative body to promote their interests specifically as Area C residents.
Jewish Resident: We can’t do it through the Yesha Council?
Lawyer: You can’t do it legitimately. The Yesha Council was set up to represent the interests of Israeli citizens residing in Judea and Samaria. Those citizens, in turn, reside in Judea and Samaria as tenants at the pleasure of the Israeli Administrative Authority. In practice, that means the Israeli government reserves the right to evacuate, deport, or ban any current Israeli resident from Area C if it serves the political goals of the government.
Jewish Resident: So, my legal right to stay here is unprotected?
Lawyer: Yes, and that’s by design. Since 1967, the Israeli government has always considered using West Bank territory as a bargaining chip for a peace settlement. The settlement movement was valued, however, insofar as it could be used to create certain necessary facts on the ground. In particular, the Green Line – which was really just the 1949 Armistice Line between the Israeli and Jordanian belligerents – was never viewed by either of the belligerents as designating the final border between Israel and the West Bank. Hence, the settlement blocs, which enabled Israel to make crucial strategic adjustments along the Green Line. So, when Israel applies its sovereignty to the settlement blocs, it is also making a move to effectively erase the Green Line in order to establish a new bargaining position.
Jewish Resident: But if Israel claims sovereignty over my settlement, for instance, won’t that strengthen my legal right to stay here?
Lawyer: Well, it would shift your direct relationship from the Israeli Administrative Authority to the Israeli government. That would be one change. But in practice, the Israeli government still reserves the right to transfer its own sovereign territory to another sovereign power. Much will depend on how far away from the Green Line your particular settlement is. So, for instance, if you live in Ma’ale Adumim, it’s highly unlikely the Israeli government would transfer any portion of that municipality for the sake of a peace agreement. But if you live in a more isolated settlement, with much fewer residents – like in Kiryat Arba or even in Ariel – your long-term tenancy prospects are uncertain.
Jewish Resident: So, you’re saying that an Area C Authority might provide me better legal protection than the Yesha Council?
Lawyer: Conceivably, yes. Under the Yesha Council, you are residing as an Israeli citizen tenant. In the eyes of the international community and the Israeli government, you are an Israeli settler – with all the Geneva Convention baggage that comes with that designation. Now, of course, the Israeli government would have a stronger ground for justifying your presence in Judea and Samaria if it established your claim on the basis of your pre-existing national right to be there as a Jew, and not as an Israeli citizen per se. And quite often, the Israeli government makes strong presentations along those lines, particularly to sympathetic Jewish audiences in the Diaspora. But legally, they don’t want you to have a national right of residence in the West Bank that exists apart from your Israeli citizenship status – because they need to preserve the legal right to transfer your residence to the Palestinians in the event of a peace agreement.
Jewish Resident: In other words, they’re trying to have their cake and eat it, too?
Lawyer: Exactly. But in doing so, the Israeli government has in fact delegitimized the entire basis of your residence in the eyes of the international community. You are seen as a “foreign” invader, as an Israeli settler (even when they refer to you as a Jewish one) . And as I said, you currently have no collective structure by which to formally assert your national – and even personal – claim as a resident of Area C, nor will the Israeli government do so on your behalf.
Jewish Resident: So, maybe the Yesha Council could declare the creation of an Area C Authority, similar to the way the Jewish Agency declared the State of Israel in 1948?
Lawyer: That is certainly one option, but consider that it may not be the best strategic option, assuming that the strategy is to legitimize the basis of your residence in the eyes of the international community. And the best way to do that is to rid yourselves of all that past Geneva Convention baggage by re-framing the very basis of your residence: you came as a permanent resident with pre-existing Jewish national rights of settlement, and not as an Israeli tenant at the pleasure of an occupying Israeli Administrative Authority. It breaks the continuity and the taint of being a “settler” that would otherwise come with a Yesha Council declaration.
Jewish Resident: But I am an Israeli citizen. And I wouldn’t want any Area C Authority declaration to change that.
Lawyer: And it needn’t, nor should it. The whole point of the declaration is to give you a collective legal voice when dealing with the Israeli government. But it goes further than what you might otherwise achieve through the Yesha Council, because you must also consider your position – your legal standing – in making submissions before the Israeli courts.
Jewish Resident: What kind of submissions?
Lawyer: Through an Area C Authority, you could claim legal standing to speak collectively in the voice of all the Area C residents. You could make submissions on building permits, zoning, or on any matter touching on the use or fate of Area C real estate.
Jewish Resident: So, for instance, we could make court submissions to try to block the Israeli government from transferring Area C land to the Palestinian Authority?
Lawyer: Yes, you would have both the moral and legal legitimacy to do so.
Jewish Resident: But you keep saying “all” the Area C Residents. There are tens of thousands of Arab residents in Area C. They’ll never agree to participate in any Area C Authority. And even if they did, they’d just use it to try to undermine the goals of the Jewish residents.
Lawyer: You’re probably right on both points. But the essence of any good strategy is to position your pieces for when you need them. The legitimacy of an Area C Authority comes from the fact that all Area C residents will have been given a viable and reasonable opportunity to elect its delegates, who will then go on to draft the terms of its governing charter. There are currently in excess of 450,000 Jewish residents in Area C, while there are around 70,000 Arabs who live in towns entirely within Area C. The UN gives a much higher figure, but any way you look at it, the Jewish population comprises an undeniable majority. Even in the unlikely event that every single Arab resident participates in the election of delegates – and they should be given every fair opportunity to do so – the Jewish majority would ultimately determine the complexion and orientation of the Area C Authority and its charter.
Jewish Resident: But if no Arab residents participate in the election, then won’t the Area C Authority be nothing more than just another Yesha Council of Jewish settlers?
Lawyer: The Yesha Council and the Area C Authority would be two entirely different vehicles. Certainly, they could both operate in tandem to advance identical goals, but one is meant to specifically advance both the personal and national interests of Jewish residents, while the other has a responsibility to advance the personal interests of all Area C residents, irrespective of religion or ethnicity.
Jewish Resident: You mean, in the same manner that the State of Israel does for its citizens?
Lawyer: Exactly. The State of Israel is “Jewish” insofar as it gives preference to Jewish national interests, but it is fully democratic insofar as it must respect the personal interests of every Israeli citizen equally, whether Jewish or non-Jewish. So, too, with the Area C Authority. Its legitimacy will come through a charter that makes no distinctions among residents on a personal basis, even if it pursues national interests that are preferentially Jewish. And at root, those national interests – as with the State of Israel – are to ensure that all Area C territory remains open and freely available for close Jewish settlement, as per the terms of the Balfour Declaration.
Jewish Resident: Every time you talk about “national interests”, it sounds like you are advancing an ethno-nationalist state. Isn’t that the very principle that makes Israel come off as so morally objectionable in the eyes of so many progressives? Wouldn’t you just be emphasizing that point with this Area C Authority?
Lawyer: Look, it all comes down to intent and context. The democratic West largely supports the State of Israel because Israel has done an excellent job in demonstrating what it means to be both a Jewish and a democratic state. It has been far less effective, however, in explaining to its progressive critics why it is even necessary to advance the “Jewish” part of the equation. It is in Israel’s interests to face that criticism head on, and to articulate an answer that is morally defensible. So, let’s start with context. Israel is just one of four separate autonomous entities within the borders of the former Palestine Mandate territory. The other three are Jordan, the Palestinian Authority in the West Bank, and Hamas in Gaza. Of the four, Israel is the only territory where both Jews and Arabs live together. Of the four, Israel is the only territory where Jews are allowed to reside. And we’re talking about a territory that is only nine miles wide at its center. Now, there is another patch of territory – Area C - whose final autonomy remains to be determined. Currently, there are both Jews and Arabs living together in Area C. Where any portion of Area C is transferred to a majority Arab autonomous authority, the likely result is that only Arabs – and no Jews – may reside there. Where any portion of Area C is transferred to a majority Jewish autonomous authority, the likely result is that both Jews and Arabs will reside there together. So, what we’re really talking about is the absolute maximum bounds for permissible Jewish residence within the borders of the former Palestine Mandate. And now more context: Populations grow, both Jewish and Arab. The Jewish population is projected to grow, but the maximum permissible area available for Jewish residence cannot grow beyond the current bounds of the State of Israel and Area C. A small and constricted Jewish population is a perpetually insecure population. A large and growing Jewish population would likewise be insecure, but at least would have more financial and manpower resources at hand to deal with the sophisticated array of threats aligned against it. Taking a broader regional perspective, the collective goal of Israel’s neighbours is to progressively shrink the remaining permissible land area available for Jewish population growth, while Israel’s goal is to trade off as little of it as it can on the gamble of a very uncertain prospect for long-term peace. That’s it. That’s the Arab-Jewish dispute in a nutshell.
Jewish Resident: So, the Area C Authority will be a Jewish Authority to the extent that it will have a majority Jewish population promoting the Jewish national right to settle this territory?
Lawyer: Yes, in the same manner that the State of Israel has a Jewish majority that promotes the Jewish national right to immigrate and reside in Israel.
Jewish Resident: But the Jewish residents in the Area C Authority will still be Israeli citizens?
Lawyer: To be very clear, the declaration of an Area C Authority is just that – a formal and collective declaration in the name of the Area C residents. Nothing more and nothing less. It will not change the legal status of Area C territory, nor will it change the legal status of your citizenship. Under all circumstances, the Israeli Administrative Authority will remain the sole and exclusive legal authority in Area C unless it decides to assign any of its administrative powers to the Area C Authority.
Jewish Resident: Why would it do that?
Lawyer: There are a number of good strategic reasons for the Israeli government to consider doing so. One of the best reasons has to do with the unsolvable conundrum that Israel’s Oslo negotiators created when they took a gamble that the Palestinians would trade peace in return for national autonomy in the West Bank and Gaza. By doing so, the Palestinians were able to obtain a national “pincer” foothold on two sides of the State of Israel. As Israel learned, national autonomy carries with it an unstoppable organizational inertia. Gaza, for instance, has become a de facto independent state with its own army and missile stockpiles that will only become more sophisticated over time. As Yasser Arafat knew all along – and the Palestinians have since confirmed for themselves – national autonomy presents unprecedented opportunities for assembling a sophisticated toolkit for promoting national state-like goals – an army, an intelligence network, and a pipeline for receiving foreign military assistance and training. If the goal is to acquire the organizational sophistication to destabilize and subvert the peaceful existence of a Jewish State over time, then Oslo has been an effective means toward achieving that end. That’s the curse – or the pall of judgment – that Israeli policymakers have brought down on the heads of all Israeli citizens. But it’s also the historical pattern in Jewish history that every curse and trauma carries with it a redemptive opportunity to make of it a blessing.
Jewish Resident: So, your hypothesis is that the “curse” of the Oslo Accords have in fact presented an opportunity for digging Israel out of an impossible strategic situation?
Lawyer: More to the point, the curious twists and turns of Jewish demography have positioned the pieces of this chessboard for a decisive move – if only enough of you have the foresight to see it and to seize the opportunity before that window closes.
Jewish Resident: What does Jewish demography have to do with the Oslo Accords?
Lawyer: Well, the historical patterns of Jewish demography reveal how absolutely clueless the Jewish people are, and have been, throughout their long history. Standing on the plains of Moab, looking out over the vista of the Land of Israel, Moses already foresaw the many failures to follow: religious infidelity, war, disaster, dispersion, but always – always – there arose a saving remnant who stepped up to fashion a blessing from out of the ashes. It took the destruction of the First Temple to finally bond the Jewish people to the Torah; and from out of the rubble of the Second Temple, a surviving school of scholars fashioned for themselves a Talmud which bound together the surviving remnant through 2,000 years of a global exile. In the meantime, the curious demographic journeys of millions of assimilating Jews inspired not one, but two, globe-spanning religions, both of which rest on Torah as their foundation. And yet – irony of ironies – it is the mostly Christian and Muslim nations of the world today who most vociferously ask of you, “By what right do you claim this land?”
Jewish Resident: Yes, I understand the lessons of our demography back then, but I just don’t see the lessons to be drawn from our demography lately. And again, what does all this have to do with the Oslo Accords?
Lawyer: Let’s just trace out one of those little noticed recent demographic threads. Just prior to the Holocaust, Orthodox Judaism was in free-fall among the young, particularly among those leaving their rural shtetls for the urban metropolises of Europe and the Americas. How bad was the attrition? Well, traditional Judasim went virtually extinct in the Soviet Union, and proved mostly unsustainable among the descendants of that massive cohort of Jewish immigrants who came to the United States between the 1880’s and 1920’s. And then the Holocaust came and wiped out probably 95% of what remained of Europe’s (mostly rural) religious Jews, most of whom were about to complete that trajectory of urbanization that would normally be followed by a generational slide toward assimilation. Their Zion – the ancestral shtetls of Europe – had been destroyed, and so the tiny remnant of young religious Holocaust survivors went into “exile” in their respective “Babylons” – some to the United States, and some to the newly created State of Israel. By the rivers of their new Babylons they wept, but with this fresh perspective that revealed the stark demographic contrast between themselves and the “lost tribes” of all those assimilating Israelites among whom they settled, most of whom did not share the personal devastation of the Holocaust. So, at least for the next couple of generations, the immediate game plan was to rebuild their numbers and to shore up the foundations of their destroyed religious institutions. Such was the demographic imperative following the abrupt trauma of the Holocaust. Fast forward to the 1990’s. Their rapidly expanding numbers necessitated a search for affordable housing, and so a sizable contingent of them moved into the West Bank, just beyond the Green Line, into Area C, where today, they form pretty much the main demographic engine for the rapid growth of the Jewish settler population.
Jewish Resident: But the population you’re talking about are mostly ultra-Orthodox non-Zionists – some of them even anti-Zionists. They want nothing to do with the State of Israel, and mostly keep to themselves. It’s my community – the modern religious Zionists of Judea and Samaria – who are the backbone of the Jewish settler community.
Lawyer: That’s what you see. When I look upon those ultra-Orthodox non-Zionists, I see a burgeoning population in chrysalis, in the process of a generational transformation. Their birth rates are among the highest in the industrial world, but they could easily collapse within a generation or two, under a new wave of secularization. Or… they might undergo a philosophical and religious transformation toward a new spiritual kind of Zionism that energizes their young in the direction of a more globally oriented mission, well beyond the parochial minded community you see today. Imagine that within 50 years, this community may one day comprise millions of Jewish residents across Area C.
Jewish Resident: Unlikely to happen. Once the Israeli government annexes the settlement blocs they live in, they’ll be part of the State of Israel, not Area C.
Lawyer: So, let’s follow that policy through to its logical conclusion. The bulk of those Green Line-hugging settlement blocs are stripped out of Area C, thereby leaving an Arab majority population in what remains of Area C. In one swoop, the Israeli government strengthens the claim of the Arab residents of Area C to come under the domain of the Palestinian Authority of Areas A and B. Meanwhile, the government’s commitment to freeze Jewish settlement building beyond the annexed blocs will ensure that the Jews lose the opportunity to gain a population foothold in the heartland of Judea and Samaria. Over time, the more isolated Jewish settlements will be progressively starved of infrastructure and perpetually vulnerable to forced evacuations by the Israeli government. As with most Israeli policy calculations along these lines, this particular policy will ensure the exact opposite of the diplomats’ expectations: peace and stability will be less likely. Left with the ability to cohere together in a Jew-free territory, the Palestinian Authority will be rife for infiltration (and radicalization) by the Jew-free territory of Gaza. A “pincer” strategy to destabilize Israel from both sides – probably through an ongoing missile threat – may develop even with an Israeli military presence in the Jordan Valley. Conceivably, an Israeli garrison in the Jordan Valley could be subject to an additional “pincer”, as an increasing population of Jordan Valley Arab residents work in concert with radicalized Jordanians on the eastern bank in order to harass the garrison and make the Israeli military presence unsustainable over time.
Jewish Resident: So, you’re saying that the annexation of the settlement blocs may be disastrous for Israel.
Lawyer: To use a chess analogy, just because you took the other’s side’s rook, doesn’t mean you’re any closer to winning. If you haven’t thought through all the possible moves, you might very well be moving yourself closer to being checkmated.
Jewish Resident: Okay, so let’s say that Israel keeps the Jewish settlement blocs in Area C. What then?
Lawyer: Well, now your demographic “pieces” are in position. The major Palestinian concern with the Jewish settlements is precisely that the Palestinians would not be able to form a coherent national entity anywhere in Judea and Samaria. As I said earlier, any move to extend Jewish settlement throughout the breadth of the West Bank is ultimately in everyone’s best interests, including the Arab residents. Here’s why: there are a number of Arab residents who personally experience the Jewish settlers as a source for stability and mutually beneficial economic relations. That is not a utopian expectation, but rather an observation of a current demographic trend by which the Arab residents of the West Bank have been acclimatizing with certain pockets of Jewish residents. For instance, in the Jewish settlement of Ariel, Arab residents study at its university and shop in its stores.
Jewish Resident: So, you’re saying that the better move is to socially entangle the Jewish residents more closely with the Arab residents?
Lawyer: Yes, but in an intelligent manner that proceeds in stages and in a very specific philosophical orientation. We start with the Arab residents of Area C, who would be a minority under an Area C Authority that would include the Jewish settlement blocs. The first order of business would be to re-educate the religious Zionist youth to understand that they undermine everyone’s interests when they incite and harass their Arab neighbours.
Jewish Resident: You’re suggesting that we use the opportunity of an Area C Authority to court the Arab residents of Area C to come on side with us?
Lawyer: Yes, and I suspect that it would be easier to engage them if you speak to them in the language of your common reverence for Torah. Mutually beneficial economic relations wouldn’t hurt either.
Jewish Resident: And what about the international community? Wouldn’t they just vilify us as a group of radical Jewish settlers once we unilaterally declare the creation of an Area C Authority?
Lawyer: Not just the international community. A good proportion of secular Israelis would also likely vilify you as extremists. But at least you will have a new voice and a new organizational vehicle by which to speak to the world. First and foremost, you’ll need to demonstrate to the world, and to the Israeli public, that you can get along and thrive together with your fellow Area C Arab residents.
Jewish Resident: So, how should we deal with the Israeli government? Would we claim any administrative powers?
Lawyer: You would have no administrative powers other than those that the Israeli Administrative Authority might choose to assign you. Your task is to make representations as to why it would make for smart strategy for the Israeli government to assign you its administrative tasks over Area C.
Jewish Resident: If the Israeli government were to assign its administrative duties to the Area C Authority, would that be a breach of the Oslo Accords?
Lawyer: The Oslo Accords bind each side not to unilaterally change the legal status of the designated territory. So, technically, a unilateral annexation of any portion of Area C is a breach. But I do not see the assignment of duties to an Area C Authority as constituting a change in the legal status of Area C. The PLO, for instance, was a signatory to the Oslo Accords, and the agreement allowed for an assignment of its duties to the Palestinian Authority of Areas A and B. Similarly, the Israeli signatory could assign its duties to a duly constituted Area C Authority. In this manner, the entire frame of the negotiations would change from a state-to-state matter – as between Israel and Palestine – to an administrative matter – as involving the Administrative Authority of Areas A and B with the Administrative Authority of Area C.
Jewish Resident: So, you work to re-frame the entire discussion away from any expectation of Palestinian statehood?
Lawyer: Exactly. If the Israeli government assigns a similar scope of administrative duties to the Area C Authority, as they did with the Palestinian Authority of Areas A and B, they are distancing themselves from the matter and leaving the ultimate negotiations in the hands of the residents of each authority.
Jewish Resident: So, what would be the role of the Israeli Administrative Authority in the meantime?
Lawyer: To be responsible for overall security and maintenance of peace in the territories, along with controlling all external borders and airspace.
Jewish Resident: So, in that sense, wouldn’t it be continuing on as an “occupier” of the Palestinian Authority?
Lawyer: Ultimately, the Israeli government should leave it to the Area C Authority residents to determine the final living arrangements with the residents of the Palestinian Authority. This arrangement would transform the entire dynamics of the negotiation platform, and present itself more as a democratically appropriate negotiation between two autonomous authorities in Judea and Samaria.
Jewish Resident: And what about the Palestinian Authority? Area C is an uneven patchwork that surrounds and juts into Areas A and B. The international community would complain that the Palestinians would never be able to operate as a viable independent state unless they were to incorporate Area C.
Lawyer: That’s the whole point of an Area C Authority – it avoids the nightmare scenario of an independent Palestinian State that would otherwise cohere around the goal of antagonizing the State of Israel. If the Palestinian Authority wishes to federate in some fashion with the Area C Authority, it would have to be on terms mutually acceptable to both parties. And who better to determine the best interests for Area C than the residents who live there? That’s ultimately a democratic argument that is morally defensible, and one that the Jewish residents of Area C may persuasively make before the international community.
Jewish Resident: So, let’s look at a worst case scenario. What if the declaration of an Area C Authority causes the Palestinian Authority to support terrorism against the Jewish residents of Area C?
Lawyer: The Jewish residents should be empowered to defend themselves, with the support of the Israeli army. In the meantime, they should take special care to cultivate good neighbourly relations with their fellow Area C residents.
Jewish Resident: What about continued Jewish settlement across Area C?
Lawyer: It would make strategic sense for the Israeli government to assign residential zoning and building permit duties to the Area C Authority, which should be free to promote the national rights of close Jewish settlement across the entire territory of Area C, including – most especially – the sparsely populated areas throughout the Jordan Valley. In doing so, the Israeli government would strengthen the bargaining position of the Area C Authority when dealing with the Palestinian Authority of Areas A and B. If, for instance, the Palestinian Authority wants to open up Area C to its residents, then the Palestinian Authority would likewise have to open up all of Areas A & B to Jewish settlement.
Jewish Resident: Wouldn’t that be a recipe for disaster? Isn’t it better to keep the two populations apart?
Lawyer: No, as we saw in Gaza, there is a danger when you leave the Palestinian population to demographically cohere around the goal of subverting the Jewish population. Recall what I said about the importance of positioning your chess pieces. Well, the ultra-Orthodox population in those settlement blocs are a crucial chess piece. The Jewish birth rate across Area C currently exceeds the Palestinian birth rate, which is on a downward trend. If those current trends continue, the Jewish population in Judea Samaria may exceed the Palestinian population over the next 50 years.
Jewish Resident: But beyond our natural growth, we’ll also be able to increase the Jewish population of Area C through additional settlement, either from Israel or from the Diaspora.
Lawyer: Yes, and consider that much of the new settlement will likely come from young idealists from the ultra-Orthodox communities in Israel and the Diaspora.
Jewish Resident: Why do you keep focusing on the ultra-Orthodox?
Lawyer: In Israel, one out of every three Jewish kindergartners is ultra-Orthodox. In Britain, three out of every four Jewish births are Hasidic. In the Greater New York area, 75% of all Jewish children are Orthodox. These numbers are not due to any sudden massive return to traditional Judaism, but mostly reflect the incidental demographic response of a once tiny core of religious Holocaust survivors who just wanted to rebuild their destroyed families. But that impulse can only last for so many generations, as a growing population has its own kind of demographic inertia. They are the future of the global Jewish population, which may one day overwhelmingly be composed of the descendants of this saving remnant of religious Holocaust survivors.
Jewish Resident: So, as you see it, the ultra-Orthodox population is positioned to play a major role in the future settlement of Judea and Samaria.
Lawyer: “Position” is the key word to keep in mind. It represents a demographic opportunity, which can either be acted upon or squandered. That’s pretty much the providential pattern of Jewish history. One way or the other, the growing ultra-Orthodox population is eventually going to acclimatize or assimilate with the modern world. But consider that they are the last demographic reservoir for a robust Jewish birth rate. The function of the religious Zionist core would be to provide the philosophical/religious foundation for the new Area C Authority, in a similar manner that the Zionist socialist pioneers had once provided the foundation for what would become the core Israeli identity.
Jewish Resident: So, while the ultra-Orthodox core provide the demographic base for a massive Jewish population expansion into Area C, the modern religious Zionist residents might provide that “core” identity for the community?
Lawyer: Yes, and that’s a tremendous responsibility that could easily go off the rails if the whole project were to be hijacked by a core of radicals who are acting out of narcissistic, sociopathic, and mystically inclined impulses. It wouldn’t be the first time in Jewish history, either.
Jewish Resident: I don’t see how the Palestinian Authority of Areas A and B would want to “federate” with an Area C Authority that would be promoting massive Jewish settlement.
Lawyer: Recall that I had suggested you might bargain back your right to settle in Areas A and B – in other words, to open up all areas of Judea and Samaria to Jewish residence. Well, consider the following: Pending any negotiated settlement between the respective authorities, the spigot of new Jewish settlement into Area C should remain open, while the spigot of new Palestinian settlement into Areas A and B remains closed.
Jewish Resident: You mean, we would just be retaining the status quo that has been operating in these areas over the past few decades?
Lawyer: The legal status quo, I might add. To Israel’s credit, when it agreed to the establishment of a Palestinian Authority in Areas A and B, it implicitly retained the right to continue with Jewish settlement building in Area C, pending any final agreement on the status of Area C. The Palestinians signed off on that implicit understanding as a condition for obtaining their national foothold in Areas A and B. So, whatever the international community thinks about Jewish settlement in Area C, it’s technically legal under the Oslo Accords.
Jewish Resident: Well, some might argue that there is a difference between agreeing in the meantime to natural population growth in the existing settlements, and agreeing to an expansion of new settlers and building areas. Could it not be said that Israel “moved the goal posts” on the issue of settlement growth in Area C pending an agreement?
Lawyer: That’s both a valid and arguable point. It could also be said, however, that the Palestinians “moved the goal posts” on the issues of statehood and their own progressive encroachment into Area C and East Jerusalem. Moreover, we have to take into consideration the fact that the Palestinian Authority lost Gaza to a radical faction – Hamas – which has torn the heart out of the Gaza portion of the Oslo Accords. So, that ship has sailed. A final resolution of the Oslo Accords was supposed to have been negotiated five years after signing, but a series of suicide bombings and the Second Intifada had interceded to frustrate those expectations. So, what you currently have is an implicit contractual arrangement that extends beyond the original terms of the Oslo Accords. Meanwhile, the Palestinian Authority in Areas A and B carries on as a legal entity created under the Oslo Accords, with Israel respecting the scope of the Palestinian administrative powers in those territories. The Palestinians, however, have sought to make residential inroads into Area C, though they have no national or contractual basis to do so. Regardless, the European Union has provided massive financial and logistical aid to the Palestinians to encroach into both East Jerusalem and Area C, contrary to the terms of the Oslo Accords. So, with respect to Area C, the “goal posts” have arguably been moved by both sides. In this respect, the Israeli Administrative Authority is justified in making unilateral moves to protect Jewish national interests in Area C, primarily through stopping Palestinian encroachment while ensuring the continuation of Jewish collective rights of settlement in this area.
Jewish Resident: Well, if so, then the Israeli government has done a poor job of stopping Palestinian encroachment. The fact is, Palestinian encroachment continues, while Israel has effectively stopped any expansion of Jewish settlement beyond the settlement blocs. So, it hasn’t really expanded the land area of these settlements as much as expand the Jewish population within those settlements, and mostly within the settlements nearest the Green Line.
Lawyer: That’s correct. Since the Oslo Accords, the Israeli government has been extremely hesitant about expanding the Jewish territorial footprint across Area C, even as the Jewish population has expanded within the existing settlement blocs. The reason is quite clear: the Israeli government intends to reserve the majority of Area C territory as a bargaining chip for Palestinian concessions in final negotiations under the Oslo framework. The annexation of the settlement blocs under the Netanyahu government will therefore represent the maximum extent of permissible Jewish territorial residential expansion across Area C.
Jewish Resident: So, if the majority of Area C residents elect an authority to collectively speak in our name, then we can effectively say, “Stop. You have no moral right to trade away an inch of this territory without our consent.”
Lawyer: That’s right. As soon as you do so, it would also be extremely difficult for the Palestinian Authority of Areas A and B to make out a claim on Area C territory that is superior to that of the actual Area C residents.
Jewish Resident: Okay, so let’s say that we succeed in convincing the Israeli government to assign administrative and negotiation rights on Area C territory to the Area C Authority. Let’s also say that in the meantime, we use our new powers to stop residential encroachment by the Palestinian Authority while opening up the spigot of Jewish residential expansion across Area C.
Lawyer: Strategically, that would be the smart play. The Palestinian Authority would take its complaints to the international community, while the Israeli government, in turn, may reply, “This is an issue between the residents within each territory. Let the residents come to an agreement among themselves.”
Jewish Resident: But if we expand the Jewish territorial footprint across Area C, wouldn’t we just be bringing down the weight of international condemnation on the Area C Authority?
Lawyer: In the short term, yes. But in the course of doing so, you will be achieving a number of long-term strategic aims. First, you will be re-framing the conflict away from the issue of “foreign” occupation as you make your case for the inherent right of Jewish residence – as opposed to Israeli residence – across Judea and Samaria. Secondly, you will be putting pressure on the Palestinian Authority to negotiate terms with you, for no other reason than that they want to stem the flow of new Jewish residents into Area C. Those new settlers most likely will come from the ultra-Orthodox population looking for affordable housing, accompanied by their much larger birth rates.
Jewish Resident: So, you’re suggesting that we hold the open spigot of new Jewish settlement across Area C as a kind of bargaining chip to get the Palestinian Authority to do a deal with us? And if we can get a deal on our terms, we close that spigot?
Lawyer: Yes, but that spigot would likely remain open for at least a decade, since the Palestinian Authority is unlikely in the short-term to recognize the Area C Authority as a credible negotiation partner. In the meantime, you would want to increase the Jewish residential footprint across most of the sparsely populated portions of Area C, which are currently up for grabs. In practical terms, the Jewish residents would need to establish new residential expansion throughout the sparsely populated Jordan Valley and within the rural interior of Area C.
Jewish Resident: But what you’re essentially saying is that we hold out the possibility of closing the spigot of new Jewish settlement as a quid pro quo of doing a deal with the Palestinian Authority? How is that any different from the Israeli government’s current policy?
Lawyer: The Israeli government is preserving the bulk of Area C as a territorial asset to be traded off to the Palestinians, while you would be doing nothing more than offering to close the spigot of new Jewish immigration in return for a very particular deal. Recall that I said that one long-term strategy is to bargain back the right for Jewish residence across Areas A and B – in practical terms, the right of Jews to settle across the entire Land of Israel west of the Jordan. The Palestinians, on the other hand, intend that a final negotiation would be accompanied by a further influx of Palestinian immigration into at least their portion of Judea and Samaria. Now, consider that the long-term demographic odds are in favour of the Jewish population in Judea and Samaria, primarily by reason of the ultra-Orthodox residents, whose birth rates should remain relatively robust for at least one or two more generations. The Palestinian Authority would have to do the math. They currently have an absolute majority across the entire breadth of Judea and Samaria, but that majority remains threatened over the long-term by the potent combination of Jewish natural growth in Area C and a further influx of new Jewish residents into Area C. By contrast, the Palestinian birth rate in Areas A, B, and C is on a downward trend. Consider, too, that every year, thousands of Palestinian residents leave Judea and Samaria. But in the absence of a final deal, the Palestinian Authority has no current power to take in new Palestinian immigrants.
Jewish Resident: So, over time, the Palestinian Authority remains at an increasing demographic disadvantage so long as they hold off from negotiating with the Area C Authority?
Lawyer: Yes. If their complaint is that you are establishing new facts on the ground by reason of a new influx of Jewish residents into Area C, you can respond by saying, “Okay, then, let’s come to mutually agreeable terms.”
Jewish Resident: And what do you see those terms as being?
Lawyer: Once you reach a deal, you “lock in” the total net number of migrants into Judea and Samaria each year for each respective national group. In any given year, a certain number of residents leave, and a certain number of residents apply to come in. If, for instance, 1,000 Jews emigrate from Judea and Samaria in one year, an opening for 1,000 new Jewish residents becomes available for that year. So, too, with the Palestinians. Through such terms, you simultaneously keep open a perpetual flow of new Jewish settlement, but also use the mutual net migration terms to ensure that the Palestinians drop their demand to flood the Land of Israel with Palestinian “refugees” coming in from Jordan, Gaza, or Lebanon.
Jewish Resident: But you’re assuming net zero migration each year for each community. What if, for instance, the Jewish community is unable to fill the migration slots that have opened up in a given year?
Lawyer: Then the surplus migration slots carry over to the subsequent year. This keeps each community honest in dealing with the other. The Palestinian side, for instance, might try to employ violence against the Jewish communities in order to encourage the Jewish residents to leave, while discouraging new residents from coming. But that strategy can only continue for so long. The more the Palestinians try to encourage net Jewish emigration from Judea and Samaria, the more they open up the available slots for net Jewish immigration. Much will depend, in the end, on whether Judea and Samaria has a greater “pull” on the migration choices of the global Jewish community than it does for the choices of the Palestinian community. As usual, it must be left to the collective Jewish organism to decide whether it wants to act on this demographic opportunity or to squander it.
Jewish Resident: This sounds extremely complicated.
Lawyer: Well, that’s just one example as to the kind of terms you might offer if the game plan is to ultimately bargain to open up all areas of Judea and Samaria to Jewish settlement. Unfortunately, you’re in an extremely complicated situation – and that sometimes requires extremely complicated solutions.
Jewish Resident: So, basically, what you’re talking about is a mutual arrangement – if the Jews of Area C have a right to settle anywhere in Areas A and B, then the Palestinians in those areas would likewise expect the right to settle anywhere in Area C.
Lawyer: Correct. So, whoever becomes the majority over the long-term in Judea and Samaria is ultimately left to the demographic choices of each respective community – both in their natural growth and through the migration arrangement. The point to keep in mind is that we are aiming to position an opportunity for the Jewish people to regain their right of settlement throughout all the Land of Israel west of the Jordan, while at the same time, frustrating the Palestinian attempt to roll back the permissible areas of national Jewish residence anywhere within those borders. In the meantime, you employ the creation of an Area C Authority as the means to determine, through a negotiated settlement, the guiding constitutional arrangements and mutually agreed terms for the entire Judea and Samaria territory. It’s another way of saying that you are positioning to defeat any notion of a Jew-free Palestinian State anywhere in the Land of Israel.
Jewish Resident: In other words, giving us yet another demographic opportunity to either act upon or to squander over time?
Lawyer: Correct. Ultimately, it will be for you to choose whether your decisions become a blessing or a curse.
Jewish Resident: Okay, so let’s consider the scenario where we don’t yet have an agreement with the Palestinian Authority; the Israeli government has assigned the Area C Authority the exclusive right to determine Jewish migration into Area C; and we’re keeping that spigot wide open until the Palestinians come to the table for a deal. What if a Jew wanted to immigrate directly to Area C without first obtaining Israeli citizenship?
Lawyer: Again, the Area C Authority should have no administrative powers other than those specifically assigned to it by the Israeli Administrative Authority – which is another way of saying that it’s ultimately up to the Israeli government. The point is, the Israeli government would now have the opportunity to speak to the Area C residents through an appropriate organizational vehicle set up to represent their interests.
Jewish Resident: How about policing?
Lawyer: The Area C Authority should have its own police authority for its territory in the same manner that the Palestinian Authority is responsible for policing its own area. But again, it’s ultimately up to the Israeli Administrative Authority to determine any police arrangements.
Jewish Resident: What if the Area C Authority isn’t able to come to a final political agreement with the Palestinan Authority of Areas A and B?
Lawyer: In all likelihood, any final living arrangement between the respective authorities would gradually evolve out of a series of interim arrangements. A viable and mutually beneficial series of economic ties would ultimately determine the course and complexion of any future political arrangements or union between the entities. Focusing too heavily on a political resolution – before evolving a mutually beneficial economic union – would be a recipe for ongoing tension and instability.
Jewish Resident: So, how would Gaza factor into this?
Lawyer: I think it’s safe to assume that Hamas would try to destabilize the relations between the two authorities, as it is currently attempting to do between the Palestinian Authority and Israel.. Fortunately, especially over the past decade, the Palestinians in the West Bank have been far less inclined to join a union with Hamas. The Israeli government has wisely pursued an ongoing policy to encourage financial growth and stability in the West Bank. It would be even wiser for them to employ the vehicle of an Area C Authority to encourage the Palestinian Authority to constructively deal with the Jewish residents of Area C. In this manner, I see the Arabs of Judea and Samaria growing progressively more distant from the Arabs of Gaza.
Jewish Resident: Would the delegates of the Area C Authority be performing any diplomatic duties abroad?
Lawyer: They should be seeking the same quality of diplomatic courtesy that is afforded to the Palestinian Authority of Areas A and B, though they should be careful to remind the international community that neither they nor the Palestinian Authority of Areas A and B are state entities. Ideally, Arab residents of Area C should accompany Jewish residents on diplomatic missions, in a similar manner that Israeli Arab citizens represent the state of Israel alongside Israeli Jews. Such diplomatic missions should work to gradually legitimize and normalize the Jewish residents of Area C in the eyes of the international community. And that comes from speaking collectively in a voice that refers to Area C, and not to “the West Bank”. It is a subtle, but powerful, point to emphasize, since “the West Bank” will gradually disappear as a point of reference – to be re-framed as a diplomatic dispute between two contending autonomous authorities. Moreover, it will serve to remind the international community that the Area C Authority is every bit an organic creature of the Oslo Accords as the Palestinian Authority of Areas A and B. The aim is that the Palestinian Authority would not have any legal claim on Area C territory other than that agreed to by the Area C Authority. In the event that Israel assigns its negotiation responsibilities for Area C to an Area C Authority, it would be difficult, if not impossible, for the Palestinian Authority to stake a claim in Area C territory that is superior to that of the Area C residents themselves.
Jewish Resident: Funny, isn’t it, how the entire Arab-Jewish dispute ignited over the question of the Jews settling the Land of Israel, and now it seems that Jewish settlement is the key to peacefully resolving it.
Lawyer: Here is another way of looking at it: if both the Jews and the Arabs agree that the Jews should renounce their right of settlement, then both Jews and Arabs will have renounced the fundamental commandment of the very Torah that underpins their respective identities.
Jewish Resident: Seems like you are envisioning a kind of Torah-based Arab Noahidism.
Lawyer: In a very real sense, your Arab neighbours vindicate the Torah, for it is extraordinary to observe that the entire regional population from the Nile to the Euphrates see themselves as the Children of Abraham by way of his son Ishmael, and that all revere the Torah. What most Jews don’t realize, however, is that Muslim Arabs don’t have their own text of the Torah to examine, and so they have no idea what is actually in it. It is revered solely by way of being referenced in the Quran. But the Quran is clear that the Land of Israel must be opened for settlement to the Children of Israel.
Jewish Resident: So, that’s what you meant when you asked me what their stake is in the Torah?
Lawyer: Yes, do you not find it astonishing that the modern descendants of Egyptians, Canaanites, Babylonians, and Assyrians now all see themselves as the children of Abraham? They were taught that the Jews were the “People of the Book” – but you never thought to share with them what’s in the book.
Jewish Resident: I think you’re being naïve. What about the Quranic writings that refer to Jews as “the sons of pigs and apes”?
Lawyer: Look, to be honest, I’ve never actually met a 7th century Jew from the Arabian Peninsula, so I can’t exactly give a character reference. And obviously, you can’t change a person’s Scripture. But I think that religious Muslims are every bit as capable of re-contextualizing and re-interpreting their scriptural views on Jews as religious Christians have managed to do in recent decades. My point is that you don’t have to be so passive in reaction to how your neighbour frames you. You can work to change that frame. What I do know is that your neighbour, in this instance, reveres your Torah, reveres your greatest prophet – Moses - and has scripturally validated your right to settle anywhere in the Land of Israel. As we discussed, a very strong argument can be made that the Quran commands the Jews to settle in the Land of Israel. In this respect, when the Jews of today settle in the land, it vindicates the Quran as well as the Torah. And so, the Torah has brought us full circle: Jewish settlement is a key path toward extricating yourselves from this impossible strategic situation.
Jewish Resident: What about the ultra-Orthodox non-Zionists? They oppose Jewish settlement on principle.
Lawyer: Even more extraordinary that providential demography has pushed a great many of them to become Jewish settlers in any case. If that doesn’t count as a messianic sign, I don’t know what does.
Jewish Resident: So, it seems like your proposed “legal strategy” isn’t strictly a legal strategy.
Lawyer: Call it a recognition of Jewish reality. Ultimately, Ben-Gurion and Herzl got it wrong, though they served their purpose…up to a point. You may even call them the “useful idiots” of Jewish providential design. Somehow, we blundered our way into a Jewish State, but what kind of Jewish State? We’re way too ethnically diverse to cohere along those lines. In the end, I don’t think the plan was that 7 million ethnically diverse secular socialists would come to live in a nine-mile wide nation under the shadow of a possible Iranian nuclear armageddon. So, when the world keeps asking you, “By what right do you claim this land,” at some point you just have to throw up your hands, stop being squeamish, and consider an old-new hypothesis: G-d.
Jewish Resident: That was Rashi’s answer. He said that’s the reason the Torah starts with the creation of the world, because one day, when the nations ask that very question, we could answer: “The Creator of the world gave us this land.”
Lawyer: So, we might term this strategy the Rashi Strategy.
Jewish Resident: But still, just saying it is not going to mystically change anything.
Lawyer: If Jewish history is going to teach you anything, it’s all about the means – the path toward getting to that end. And as far as I can tell, a nuclear Armageddon is the ultimate bad ending for mankind, for both Jew and non-Jew. Personally, I feel that G-d will allow us to fail, to negate the very basis of our existence, if that is the bad choice we insist on making. I don’t think He plans a reward for any of us if we bring this whole project to the ultimate bad ending. That might not be a message that accords with current Christian and Muslim theology, but it seems to be the underlying theme of the Torah, from the Book of Genesis all the way through to Deuteronomy. It’s a message that would certainly resonate with a global community of Noahides – in other words, those non-Jews who believe in G-d, but who don’t feel the need to express their faith in Him through Muslim or Christian vestments.
Jewish Resident: Does a global community of “Noahides” even exist?
Lawyer: Yes, there are some who formally call themselves Noahides. But consider that there is a much larger number of people throughout the world – millions of Christians, Muslims, Buddhists – who esteem and admire the Jewish people because they do sense something astonishing in the strange demography and historical fate of the collective Jewish organism. While anti-Semites have historically believed Jewish demography to be threatening – imagining that the Jews themselves have a clear-eyed sense as to where they’re steering their collective ship (they don’t) – Noahides have an intuition that G-d reveals Himself to the nations through Jewish historical fate, whose themes and patterns are set out in the Torah.
Jewish Resident: So, you see this current diplomatic impasse as positioning us for an historic moment?
Lawyer: Yes, the world is rapidly secularizing, with values that are moving not only further away from the Torah, but that also grow increasingly antagonistic toward the Jewish religious organism which acts to safeguard the Torah. In this global context, the world not only asks, “By what right do you claim this land?” – but a growing population of young Jews, religious and secular alike, are asking, “What’s the point of the whole Jewish enterprise? What’s the relevance?” Well, the relevance is that the world is looking on to see how the Jews might extricate themselves from out of an impossible geo-political situation which appears to have no secular solution at hand. A foreseeable threat of nuclear annihilation hangs over the fate of the Jewish State, and possibly over the rest of the world. Meanwhile, Torah-observant Jews everywhere risk a new generational flight of assimilation if they persist in only looking mystically inward, and not on providing a relevant program for their youth to express their Torah values to the nations; not to convert the nations, but to make a clear demonstration, a positive impact, before their eyes – politically, economically, and spiritually. Now, imagine if the religious-minded Jews of Judea and Samaria could reach out to their Arab neighbours, and one day convince them that Jewish settlement in Zion is right and just. Where you might see a hostile Palestinian antagonist, I see a potential Arab Noahide, joining with you in your common brotherly reverence for G-d and Torah. And should that day come, the conquest of Zion will not come through force of arms, but through the moral and persuasive force of your conduct and arguments. In successfully answering Rashi’s query, both the world and your Arab neighbour will affirm your claim to settle this land, but only by reason of your common reverence for G-d and Torah. This is the kind of Zionism that is bred into the very fiber of every young ultra-Orthodox non-Zionist. And assisting you in that endeavour will stand ready an international community of Noahides, who will likewise see their stake in the success of your efforts. But to get from here to there will take a lot of work, foresight, and fortitude of purpose. Along the way, you should stand vigilant against a serpentine cast of sociopaths and self-interested narcissists who will offer ample opportunity for your enterprise to go off the rails.
Jewish Resident: So, the Rashi Strategy is very much about making Israel a light unto the nations.
Lawyer: Not because you are inherently better, mind you. But because it seems that G-d has chosen to reveal Himself through the astonishing historical patterns of Jewish demography and fate, with all its blessings and curses. But before the nations see it, you need to examine the astonishing nature of your own history and see it for yourselves. Perhaps then you will stop squandering the many opportunities that have been presented to you throughout your long history. Perhaps then you will move forward in a more contemplative fashion, hand-in-hand with your Noahide protectors, and start making wiser decisions.
Following is a proposed text for a Declaration of the Area C Authority.
DECLARATION OF AUTHORITY OF AREA C RESIDENTS
I. We, the Jewish and Arab residents of the territory termed as "Area C", do hereby collectively declare, affirm, and claim the following rights and interests over all the land of Area C as follows:
i) That no interim and/or final agreement(s) shall be entered into with respect to any portion of Area C territory without our active participation and our formal written affirmation as a stake-holding party to such agreement(s);
ii) That no other party has the legitimate right - under current generally accepted principles of international law and under generally accepted principles of democracy - to negotiate over, and/or to agree to, and/or to convey, the transfer of autonomous powers, administrative authority, and/or possession over any portion of Area C territory without our active participation and our formal written affirmation as a stake-holding party;
iii) That our collective rights and interests as described herein over all the territory in Area C will be deemed to have been formally claimed and asserted - under current generally accepted principles of international law and under generally accepted principles of democracy - upon the holding of a reasonably fair and transparent ballot to affirm this Declaration, available and open to all adults, whether Jewish or Arab, who have been resident in Area C for at least one year (prior to the holding of the aforementioned ballot) under the permission and approval of the current Israeli Administrative Authority of Area C;
iv) That no other collective entity, in possession of, and/or resident in, Area C has heretofore ever formally claimed and asserted - under international law and under generally accepted principles of democracy - the rights and interests, as described herein, over any portion of the territory of Area C;
v) That upon affirming the contents of this Declaration by way of the aforementioned ballot, the Area C residents will have collectively created a valid legal claim that the residents ought to have legal standing in advocating for, and in receiving, an expansion in legal and administrative powers over Area C territory, in addition to being conferred with the sole legitimate legal capacity to determine any and all political arrangements between Area C and the neighbouring Authority in Areas A and B.
II. We further declare, affirm, and direct that:
a) In the event that a majority and/or a plurality of Area C adult residents - Jewish and Arab alike, and who have been resident in Area C for at least one year prior under the assent and approval of the current Israeli Administrative Authority of Area C - have elected members to constitute themselves as a representative Authority, this duly elected Authority ("the Area C Authority") shall be deemed to speak and act in our collective name and under our collective authority and assent.
b) Though the Area C Authority shall be deemed as the only legitimate and exclusive authority to speak and act in the collective name of, and under the collective authority and assent of, the Area C residents, the Area C Authority shall not - and will not - exercise any administrative and/or legal powers over any portion of Area C territory without the formal written assent of the current Israeli Administrative Authority in Area C or without judicial approval by any court having jurisdiction over the current Israeli Administrative Authority in Area C.
c) The Area C Authority shall be tasked with advocating for the preservation and/or expansion of the collective legal and administrative rights, interests, and powers of the Area C residents to determine land use (including, but not limited to, resource allocation, zoning, building permits, etc.); with advocating for the primary oversight of residence in, and migration to, Area C; and with advocating for the primary right to negotiate and determine any and all political, legal, and/or economic arrangements involving Area C and the neighbouring Authority in Areas A and B.
d) The Area C Authority shall additionally be tasked with filing court applications and petitions with the aim of preserving and/or expanding the collective legal and administrative rights, interests, and powers of the Area C residents over all portions of Area C territory; with designating spokespersons and personnel to articulate the collective legal position and interests of Area C residents in the media, within cultural/religious institutions, and among government officials throughout the world; and in pursuing legal measures to combat illegal encroachments on Area C territory by third parties.
III. We are mindful of, and affirm, the fact that:
i) Pursuant to a) the San Remo Conference; b) the terms of the Palestine Mandate conferred under the League of Nations; and c) the governing terms of Article 80 of the UN Charter: there continue to exist under international law pre-existing and unextinguished collective rights of "close Jewish settlement" on any portion of Area C territory for which there is no competing valid legal claim by any corporate and/or personal entity exercising possession and /or administrative control over such portion(s).
ii) That as the current Administrative Authority in Area C, the Israeli government is tasked under international law with administering existing agreements and laws pertaining to Area C territory, among which is its legal obligation to preserve, and to comply with administering, the unextinguished collective legal rights of Jewish settlement in those portions of Area C territory for which there is no competing valid legal claim by any corporate and/or personal entity exercising possession and /or administrative control.
iii) The Administrative Authority of Areas A and B has never had - nor does it currently have - any competing valid legal claim on any portion of Area C territory arising out of prior or current possession and/or administrative control over any part of this territory. Moreover, the Administrative Authority of Areas A and B has not made - nor is it legally capable of making - a valid competing legal claim to any portion of Area C territory that could be considered superior to the collective claims and interests of the Area C residents declared herein, primarily on the grounds that the Administrative Authority of Areas A and B is neither resident in, nor possesses administrative control over, any portion of Area C territory.
iv) On the basis of the allegation that the Fourth Geneva Convention applies to the settlement of the citizens of an Occupying Power into territory where such citizens did not have a pre-existing right of settlement, the Fourth Geneva Convention does not - and cannot - factually apply to the Jewish residents of Area C, who reside in this territory not as citizens of an Occupying Power, but rather as the subjects and beneficiaries of a pre-existing and unextinguished collective legal right of settlement under international law. In sum, the undisputed legality of the Jewish residents' status in Area C exists not by reason of their incidental Israeli citizenship, but rather due to pre-existing and unextinguished collective rights of settlement arising out of their nationality as Jews.
v) The continuing existence of collective national rights of Jewish settlement, in those portions of Area C where such rights are still valid, should not - and cannot - be interpreted in and of itself as prejudicing the personal rights and interests of the existing non-Jewish residents of Area C.
vi) The legal distinction between pre-existing collective/national rights of settlement and the personal rights of existing residents has its precedent in the preferential immigration policies of the State of Israel, which are deemed as legitimate and acceptable by the global community, which acknowledges the compatibility between the State of Israel's collective rights of settlement of Jews into the State with the equal personal rights of all its citizens, whether Jewish or non-Jewish. This legal distinction similarly remains valid with respect to past, present, and ongoing Jewish settlement in Area C under the terms of the aforementioned San Remo Conference, which have never been formally extinguished under international law or by operation of any valid competing legal claim, whether corporate or personal.
vii) The Oslo Accords - under which the Authority of Areas A and B was constituted - never abridged, extinguished, or placed any limitation at all on the pre-existing collective rights of Jewish settlement in Area C. At most, the Oslo Accords signaled the intent by the current Israeli Administrative Authority to negotiate with the Authority of Areas A and B on the final political arrangements governing the State of Israel and Areas A, B, and C, without prejudging the outcome beforehand.
viii) This collective Declaration of Area C residents, and any accompanying internal organization of such residents into an Area C Authority, cannot validly be interpreted as a violation of the Oslo Accords, particularly as it is not dependent on the prior approval or proactive participation of the Israeli Administrative Authority which was a signatory to those Accords. Nor does this Declaration - accompanied by the organization of Area C residents into an Area C Authority - necessarily constitute a change in the status of the Area C territory.
ix) The Oslo Accords were conducted with the PLO as signatory, providing for the assignment of future negotiating rights to an Authority of A and B elected by way of democratic fiat. Similarly, the Oslo Accords do not prohibit the assignment by the Israeli Administrative Authority of future negotiating rights over Area C to the Area C residents themselves in the event that they democratically elect to organize themselves as a duly constituted Area C Authority. Moreover, any such assignment of negotiating rights to an Area C Authority does not necessarily constitute a change in the status of the Area C territory, but rather serves as a legal acknowledgement of the democratic decision of the residents themselves in making a formal collective claim to all negotiating rights to territory for which they are in de facto collective possession.
x) In light of the above legal considerations - and consistent with generally accepted democratic principles - it is both right and proper that the Israeli Administrative Authority should formally assign all negotiating rights over Area C to the Authority chosen by democratic fiat of the Area C residents.
xi) It is expedient, just, and in accord with generally accepted principles of democracy that the resident stakeholders in their respective territories - the residents of Area C and the residents of Areas A and B - be encouraged to negotiate among themselves the terms of any future political, legal, and economic arrangements between each other, as they are in the best position to determine their crucial interests in dealing with, and living among, one another.
xii) The collective affirmation of the contents of this Declaration - followed by the democratic creation of an Area C Authority - shall not operate to change the existing rights, duties, and obligations of Area C residents who are Israeli citizens or citizens of another domain. Absent the assent of the current Israeli Administrative Authority, this Declaration cannot operate to confer state citizenship, nor can it operate to alter or derogate from the citizenship status of Area C residents who are currently citizens of the State of Israel or any other domain.
IV. We collectively affirm and declare our intent to:
a) Pursue our goals in a fair, just, and democratic manner, with respect for the equal personal rights and interests of all Area C residents, whether Jewish or non-Jewish.
b) Work toward ensuring the economic well-being, physical security, and overall quality of life for all Area C residents, whether Jewish or non-Jewish.
c) Reach out in good faith, friendship, and brotherhood to our neighbours in Areas A and B, to negotiate everyday living arrangements between us that will - regardless as to whether we may agree on any final political solution - at least have the effect of encouraging productive and mutually constructive working relationships between us in the meantime.
d) Cooperate and work fruitfully with the Israeli Administrative Authority, toward the mutually desirable goal of frustrating the bad faith efforts of those around the world who seek to exploit and incite our neighbours in order to sow violence and chaos in the region, and who would otherwise sacrifice all of us on the altar of their political ideologies and principles.
V. We proudly and collectively assert the affirmation and hope that, in accordance with the laws of Torah and the proclamations of the Prophets of Israel, our efforts will bear fruit in providing a light unto the nations, demonstrating to them that the Jews and Arabs in our region may find common ground through our common reverence for the G-d of Abraham, Isaac, and Jacob and through our common reverence for the Torah as a religious foundation for both Jews and Arabs alike.
We urge our Arab neighbours throughout the region to consider that the Torah commands the Children of Israel - in the words of the prophet, Moses/Musa - to settle throughout the Land of Israel, to proclaim liberty and justice to all, and to treat the strangers among us with kindness and charity.
We wish to signal to our Arab neighbours in the region that we support and recognize your reverence for Torah, and that your religious principles counsel you to deal fairly and kindly with those among the People of the Book who remain faithful to Torah.
In this light, we urge you to rise up in common brotherly cause with us, to demonstrate to the nations that the Torah lights the way toward a vision of peace between the children of Isaac and the children of Ishmael - and that through our mutual love and reverence for Torah, we may all dwell together in brotherhood throughout the Land of Israel, fulfilling the promises of the Covenant of Abraham and the visions of peace of the Prophets of Israel.