How to Combat Anti-Israeli Hate on College Campuses
The rise of the on-campus anti-Israel movement is multifaceted, but one feature is all too common: Anti-Zionists and boycott, divestment and sanctions supporters who tar Israel as an illegal “occupier” and/or an “apartheid” nation.
Located halfway around the world and roughly the same size as New Jersey, the tiny Jewish state of Israel has increasingly emerged as yet another issue dividing America’s fraught political discourse. Whether in the halls of a “Squad”-stained Congress or in the myriad university classrooms debating whether to lend support to the malicious, anti-Semitic Boycott, Divestment, and Sanctions (BDS) campaign, Israel is no longer the unifying political issue that it once was.
Reputable opinion polling still evinces an American electorate that, by and large, still overwhelmingly supports Israel. But there are troublesome indicators in the offing. The American university campus, in particular, has evolved into a hotbed of anti-Israel activism. Led by rabble-rousing student organizations such as Students for Justice in Palestine (SJP) and Jewish Voice for Peace (JVP), groups schooled in noxious harassment and intimidation techniques, a scant mention of the word “Israel” on campus today frequently elicits hair-pulling hysteria and the ugliest of ad hominem ripostes.
At the University of Chicago, where I went to law school, I have seen the contorted, spittle-flying faces of those provocateurs who would try to shout down pro-Israel speakers with bellows of “free, free Palestine.” I have seen it in my daily participation in our rancorous public square, where Israel’s purported “occupier” status is accepted, no questions asked, by so much of the blue-checkmark Twitterati. Lay media style guides are often all too happy to oblige, no questions asked; entire organizations exist solely to combat anti-Israel bias pervading institutions as wide-ranging as the mainstream media to Wikipedia, the highly-trafficked free online database.
The rise of the on-campus anti-Israel movement is multifaceted, but one feature is all too common: Anti-Zionists and BDS supporters who tar Israel as an illegal “occupier” and/or an “apartheid” nation. That smear tacitly assumes a specific understanding of international law—an understanding that is not only misleading but is provably false under well-established principles of international law. In reality, the alleged crime of Israeli “occupation” in Judea and Samaria is all based on a lie. In fact, as legal scholars Eugene Kontorovich and Avi Bell have previously and persuasively demonstrated, Israel has the best legal claim to disputed Judea and Samaria.
First, a necessary disclaimer. When people, especially young people on the American university campus, hear the phrase “international law,” the picture they often conjure up is a body of gavel-hammering judges in an eminent tribunal applying a settled code of rules similar to the centuries-old Anglo-American legal tradition. That picture could not be further from reality. What the legal profession calls “customary international law,” to the extent the word “law” is even accurate to describe a body of norms and customs that lack actionable enforcement measures, is mostly composed of a narrow set of principles about which countries have reached a near-consensus over the course of centuries. It is worth noting that some people also think of treaties and the like as a different type of international law—a type that, at first, may resemble laws passed by a national legislature, but in actuality are more like multi-party contracts, except without a court to enforce them. “International law” is something utterly unlike an enforceable and cognizable legal code of a first-world nation-state. Still, it’s important to know these legal principles anyway because, for better or worse, they matter on campus—and, more generally, in the public battle of ideas.
The venerable principle of international law known as uti possidetis juris, Latin for “as you possess under law,” is derived from the Latin expression uti possidetis, ita possideatis, meaning “may you continue to possess such as you do possess.” The principle reflects the normative values of finality and stability in border-setting and is most often invoked and applied to determine post-colonial borders. Its first modern use, in the context of determining Latin American national boundaries following independence from Spain, predates the modern Israeli-Palestinian conflict by well over a century. It has also been a legal centerpiece of African continental decolonization; as the International Court of Justice put it in a 1986 judgment with respect to a border dispute between Burkina Faso and Mali, “by becoming independent, a new State acquires sovereignty with the territorial base and boundaries left to it by the colonial power.” The principle has also featured prominently in the European theater, in the context of the dissolutions of the Soviet Union, Czechoslovakia, and Yugoslavia.
Following the Romans’ destruction of the Second Temple in 70 C.E. and the commencement of the Jewish Diaspora, the Land of Israel—Eretz Yisrael, in Hebrew—frequently changed legal hands for nearly two millennia. For centuries leading up to World War I, the land was just a small part of the sprawling Ottoman Empire. The Balfour Declaration of 1917, thirteen years after the death of Zionist visionary Theodor Herzl, represented the first modern expression of Zionist support by a major political power (Britain). The Balfour Declaration was also indispensable in bringing about the Mandate for Palestine, based on Article XXII of the Covenant of the League of Nations and assigned to Britain at the San Remo Conference of 1920, which served as the instrument of international law intended to effectuate the Declaration’s call for a “national home for the Jewish people.” The Mandate for Palestine was but one of many “mandates.” After World War I, the international community, led by the League of Nations, decided the former German and Ottoman territories ceded by military defeat were not established enough to govern themselves and should be placed under the control of other nations. All other Mandate successor states follow the borders of the Mandate, any lumping in of dissatisfied minority groups notwithstanding.
Britain was chosen to administer the Mandate for Palestine, due largely to the fact that Britain had already seized control of most of Eretz Yisrael by the end of the war. The territory of the Mandate of Palestine, as initially established and approved by the League of Nations, included all of the modern-day States of Israel and Jordan. Under the terms of the Mandate, which had the formal imprimatur of the League of Nations, the territory was further divided between Mandatory Palestine and the Emirate of Transjordan; the “Jewish home” provisions were suspensible in the latter, implicitly paving the way for contiguous Jewish and Arab states. The borders of the former coincided with the borders of Eretz Yisrael, and the borders of the latter corresponded with the borders of the modern Hashemite Kingdom of Jordan. The border between Mandatory Palestine and the Emirate of Transjordan was the Jordan River and a line extending south toward the Dead Sea, into which the Jordan River empties. It would not be inaccurate to refer to this as the European powers’ initial vision for a Jewish state and a contiguous Palestinian state.
The Mandate got its final approval two years after the San Remo Conference, in 1922, at which time Mandatory Palestine and the Emirate of Transjordan were formally severed, and the borders were implemented the following year. Britain, under the terms of the Mandate, was charged with reconstituting the Jews’ “‘national home” in Eretz Yisrael: “An appropriate Jewish agency shall be recogni[z]ed as a public body for the purpose of advising and co-operating with the Administration of Palestine in such economic, social and other matters as may affect the establishment of the Jewish national home and the interests of the Jewish population in Palestine, and, subject always to the control of the Administration to assist and take part in the development of the country.” Eventually, the Hashemite Kingdom of Transjordan declared independence in 1946, the year after Allied victory in World War II. The newly independent Kingdom assumed the same borders as the Emirate of Transjordan, in accordance with uti possidetis juris. This, despite the fact that no such state previously existed, and that it put a Palestinian-Arab majority under the rule of the Hashemite Bedouin clan.
Following Allied victory in World War II, Britain realized the impracticability of the Mandate and sought the help of the newly formed United Nations. The UN General Assembly appointed a Special Committee on Palestine, which, in November 1947, ultimately recommended a partition plan to the UN Security Council and Britain. The Security Council took no action on the plan, and Britain rejected it (as did the Arabs). The UN Partition Plan had no legal effect whatsoever—it was merely a non-binding UN General Assembly proposal. The British government planned to officially end the Mandate, irrespective of UN action, on Nov. 29, 1948, but left early on May 15, 1948—the day after Israel’s declaration of independence.
The principle of uti possidetis juris took effect at the very moment David Ben-Gurion declared the independence of a new Jewish state in Eretz Yisrael. Just as Transjordan, which declared independence two years earlier, assumed the preexisting borders of the Mandate’s Emirate of Transjordan, so too did the state of Israel assume the preexisting borders—“from the river to the sea,” to borrow from today’s SJP and JVP miscreants—of Mandatory Palestine. The combined effect of the entirely symbolic and non-binding UN General Assembly partition proposal and uti possidetis juris, as applied to Israeli independence, is remarkably straightforward: Israel, upon its independence on May 14, 1948, inherited all of Judea and Samaria (as well as the Gaza Strip).
Israel’s Arab neighbors, of course, were rather upset at the emergence of a Jewish state in their region. A combined Egyptian/Jordanian/Syrian/Lebanese Arab force immediately invaded the nascent Jewish state, hoping to annihilate its fledgling paramilitaries and wipe away any incipient taint of a sovereign Jewish presence in the Levant. The resultant war, which culminated in a miraculous Israeli victory, dragged on for nearly a year. Between February and July of 1949, Israel reached successive armistice agreements with each of Egypt, Lebanon, Transjordan (whose official name was changed to the Hashemite Kingdom of Jordan less than a month later) and Syria.
Crucially, none of these armistice agreements established permanent borders; Israel did not reach a peace accord, at the time, with any one of these nations. Rather, according to their own explicit terms, each armistice agreement established temporary ceasefire lines, the most famous of which was the “Green Line”—a term still frequently bandied about today and sometimes misleadingly referred to as the “1967 borders.” Under the temporary ceasefire lines of 1949, Jordan soon fully occupied Judea and Samaria, the eastern portions of Jerusalem, and the Old City of Jerusalem in a dubiously legal fashion. Over the course of their occupation, the Jordanians would desecrate and destroy all but one of the Old City’s thirty-five synagogues.
But the plain text of the armistice agreements was emphatically clear—as actually insisted upon by the defeated Arab armies themselves—that the ceasefire lines represented only a separation of forces, and neither a concession nor final settlement of any contested territory. As the Israeli-Transjordanian armistice agreement said, in language mirroring its sister accords, “The [a]rmistice [d]emarcation [l]ines defined in articles V and VI of this [a]greement are agreed upon by the [p]arties without prejudice to future territorial settlements or boundary lines or to claims of either [p]arty relating thereto.” As such, nothing that happened between the years 1947 (when the UN Partition Plan for Palestine failed) and 1949 (when Israel reached armistice agreements with the four invading Arab armies) altered Israel’s borders, under the principle of uti possidetis juris, away from those that the modern Jewish state inherited from preexisting Mandatory Palestine.
Eighteen years later, in the Six-Day War, Israel’s Arab neighbors again attempted to annihilate it. Israel’s victory in this surprise defensive war was a victory of biblical proportions that permitted the Jewish state to regain territorial possession of Judea and Samaria, the Gaza Strip, Sinai Peninsula, and the Golan Heights. But yet again, nothing changed under international law: uti possidetis juris continued to apply, just as it did in 1948, tracing back to the Mandate. Israel’s borders after the Six-Day War were precisely the same as they were the day that Ben-Gurion declared independence in May 1948.
This then gets us back to that most tendentious of words muddying the state of Israel-related discourse on the university campus today: “occupation.” Those making this accusation claim its provenance lies in Article 49 of the Fourth Geneva Convention (hereinafter, “Article 49”), adopted in 1950. Ironically, Article 49 neither defines nor forbids “occupation”—instead, it offers a list of humanitarian guidelines that should be observed when one nation is asserting military control over at least part of another nation. In order to tar Israel as an “occupier” under Article 49, enemies of the Jewish state point to the Article 49 provision stipulating that an “[o]ccupying [p]ower shall not deport or transfer parts of its own civilian population into the territory it occupies.” They use this provision without first proving that Israel is an “occupying power,” and then baldly assert that it is an “occupying power” because it permits Jewish civilians to move into Judea and Samaria. The logic is laughably circular.
Although Article 49 never directly defines what exactly an “occupation” is, it does address instances where one sovereign captures territories from another established sovereign during wartime. As discussed, under uti possidetis juris, Israel had the best legal claim to Judea and Samaria both before and after the Six-Day War—and, as goes without saying, a sovereign cannot dispossess itself of its own territory via “occupation.”
The much-ballyhooed UN Security Council Resolution (“UNSCR”) 242, passed in the aftermath of the Six-Day War, does not in any way alter the conclusion that Israel is the best claimant to Judea and Samaria. That resolution affirmed “[w]ithdrawal of Israel armed forces from territories occupied in the recent conflict”; but as the careful reader will note, the operative language is “territories,” not “the territories,” therefore unambiguously permitting at least some Israeli presence in Judea and Samaria. Additionally, UNSCR 242 also requires Arab UN member states to “[t]erminat[e] . . . all claims . . . of belligerency and . . . acknowledg[e] . . . the sovereignty, territorial integrity and political independence” of Israel—obligations they clearly have not fulfilled. Given uti possidetis juris—not to mention the wholly defensive nature of Israel’s involvement in the Six-Day War—it would be extraordinarily peculiar to think of Israel as an “[o]ccupying [p]ower” under Article 49. Even assuming, arguendo, that “occupation” did commence in 1967, furthermore, it would not have survived the signing of the Oslo Accords and the peace treaty with Jordan, in 1993 and 1994—after all, Article 49 has no legal application outside of international armed conflicts. But this lattermost thought experiment notwithstanding, Israel was not an illegal “occupier” in 1948, it was not an illegal “occupier” in 1967, it was not an illegal “occupier” after the Arabs’ third failed attempt to exterminate Israel in the Yom Kippur War of 1973, and it is not an illegal “occupier” today.
This remarkably straightforward analysis and application of international law notwithstanding, supporters of the Jewish state on the American university campus today are routinely assailed as apologists for “apartheid,” illegal “occupation,” and/or European-style ethnic colonialism. Many, perhaps most, of these verbal assaults comfortably fit the requisite criteria for the U.S. State Department’s definition of anti-Semitism. But due to the ubiquity of these incidents, however tragic that ubiquity may be, it is imperative that Zionists squarely address how to best handle them. Based on personal experiences and the vicarious experience of close friends and loved ones from the front lines of the on-campus “Israel wars,” here is some advice to Zionist students under siege on the American university campus today.
First, know your facts and your basic history. Understand, and be able to explain, what exactly the Jewish state of Israel is and how it first came into being. Understand, and be able to explain, the relevant history—the dates and events that matter, and why they matter. Understand, and be able to explain, a rudimentary conception of the international law principle of uti possidetis juris and how it applies to the state of Israel’s rightful legal claim to Judea and Samaria—dating back to Article XXII of the Covenant of the League of Nations. Be respectful of the other side’s narrative, but be confident in the moral and legal superiority of your claim.
Second, be the better person. We Zionist veterans of the on-campus “Israel wars” all know what a determined SJP/JVP foe looks like: threatening, slanderous, bellicose, hysterical. It is imperative that supporters and friends of Israel neither mimic their grotesque tactics nor stoop to their sordid level. Instead, recall: We have the better of the legal argument, we have the better of the historical argument, and we have the better of the moral argument. All we must do is maintain our composure, speak the historical truth, and make the unabashed moral case for Israel’s right to the land of Eretz Yisrael—forcefully but respectfully, unapologetically but reassuringly.
Third, be strong and be proud. You are standing up for the noblest and most just causes of all: the health, safety, prosperity, and security of the Jewish people and the Jewish people’s right to self-determination and territorial sovereignty in their ancestral, biblical homeland. If you are a proud Jew or a proud friend of the Jews, then there is simply no more righteous cause. The modern state of Israel, which was born from the ashes of one of human history’s darkest chapters, has survived against impossible odds and developed the region’s most advanced military—a fighting force, that is, which self-imposes the most stringent ethical norms in all of modern warfare and has executed countless daring raids to rescue Jewish hostages abroad and bring them home to safety. Israel has become the whole world’s envy in technology venture capital. It is an intrinsically moral state, a beacon of light amidst a turbulent sea, and an indispensable military and intelligence ally for the United States. Perhaps most importantly, it is the Jews’ Promised Land. Israel is, in a nutshell, one of the most remarkable human success stories in two to three millennia—and inherently worthy of a robust defense in the lion’s den of today’s neo-Jacobin American university campuses.
On the one hand, it is profoundly sad to see Israel, once such a unifying issue for our normally fractious politics become the intensely debated subject that it is today. On the other hand, it is cause for optimism that, despite all the intensity and vitriol that this issue lamentably engenders, there is such a simple, persuasive, and compelling legal argument to support the modern state of Israel’s rightful territorial claim to Eretz Yisrael—including the most relevant portion, for purposes of this essay, Judea and Samaria. It is my hope that beleaguered students today encountering the BDS movement’s headwinds will be able to utilize this essay to stand up defiantly for Israel’s dignity—and defy those who would smear it as an illicit “occupier.”
“May my tongue cling to my palate, if I do not remember you, if I do not bring up Jerusalem at the beginning of my joy” (Psalm 137:6).
Josh Hammer is Newsweek opinion editor, a research fellow at the Edmund Burke Foundation, and of counsel at First Liberty Institute. He would like to extend special gratitude to Eden Bernstein, Eugene Kontorovich, and Avi Bell for their generous help in preparing this essay.
Image: Reuters