The words which people use, often unconsciously, can have a critical impact upon the thoughts and attitudes of those who speak and write, as well as those who listen and read. Dangerously misleading terminology remains a major obstacle to Israeli-Palestinian peace.
It is normal practice for parties to a dispute to use terminology which favors them. In this regard, Israel has been spectacularly successful in imposing its terminology not simply on Israeli consciousness and American usage but even on many Arab parties and commentators. It has done so not simply in obvious ways like use of the terms “terrorism”, “security”, “Eretz Israel” or “Judea and Samaria” but also in more subtle ways which have had and continue to have a profound negative impact on perceptions of legal realities and other matters of substance.
The current initiative by Palestine to upgrade its status at the United Nations from “observer entity” to member state or, temporarily failing that, “observer state” is commonly referred to, by both supporters and opponents of this initiative, as an effort to “achieve statehood” or “recognition of statehood” through the United Nations. It is nothing of the sort.
The State of Palestine already exists in accordance with the relevant principles of international law, meeting all the conditions for sovereign statehood set forth in the Montevideo Convention on the Rights and Duties of States — a permanent population, a defined territory (all of the portion of pre-1948 Palestine which Israel conquered in 1967), government and a capacity to enter into relations with other states — and more than two-thirds of the 193 member states of the United Nations, including 16 of the world’s 20 most populous states, now recognize the State of Palestine as a sovereign state. The State of Palestine has simply been under the occupation of another state for more than 44 years, as Kuwait was, without ceasing to exist, for seven months two decades ago.
Palestine’s UN initiative seeks to level the legal and diplomatic playing field and, thereby, to enhance the chances of finally negotiating an end to the occupation. The issue and objective are not “achieving statehood” or recognition thereof, which can only be accorded individually by other states, but “ending the occupation”. With the expiration on January 26 of a three-month diplomatic “freeze” consented at the request of the Quartet, this last-chance effort to save a “two-state solution”, if it can be saved, should resume soon.
In this context, journalists who refer to all or parts of occupied Palestine as “lands which the Palestinians want for their future state” are, consciously or unconsciously, siding with the mostly Western minority which views Palestine as an aspiration rather than as a state under occupation. More shockingly, even some high Palestinian officials still refer thoughtlessly to “our future state”. Both under international law and in the eyes of most of the world’s other states, Palestine is not a “future state” but an existing state under occupation by another state.
Commentators on all sides speak of Israel’s “ceding” territory occupied in 1967 to the Palestinians. The word suggests a transfer of land by its legitimate owner. Unless there are reciprocal exchanges of territory in a final peace agreement, the issue of Israel’s “ceding” territory to Palestine does not arise. Israel can withdraw from occupied Palestinian territory, but to “cede” property one must first possess legal title to it. Israel can no more cede title to occupied Palestinian lands than a squatter can cede title to an apartment which he has illegally occupied. In reality, it is Israel which continues to insist that Palestine cede to Israel indisputably Palestinian lands forming part of the meager 22% remnant of historical Palestine which Israel did not conquer until 1967.
There is also much talk of “concessions” — “painful”, “far-reaching” or otherwise — being demanded fromIsrael. The word suggests the surrender of some legitimate right or position. In fact, while Israel demands numerous concessions from Palestine, Palestine is not seeking any concessions from Israel. What it has long insisted upon is “compliance” – compliance with agreements already signed, compliance with international law and compliance with relevant United Nations resolutions – nothing more and nothing less. Compliance is not a concession. It is an obligation, both legally and morally, and it is essential if peace is ever to be achieved.
The Palestinian territories conquered by Israel in 1967 are still frequently referred to as “disputed”. They are not. They are “occupied” — and illegally so, since the status of “perpetual belligerent occupation” which Israel has been seeking to impose since 1967 does not exist in international law. While sovereignty over expanded East Jerusalem, which Israel has formally annexed, is explicitly contested, no other state has recognized Israel’s sovereignty claim and Palestinian sovereignty over the Gaza Strip and the rest of the West Bank is, in both literal and legal senses, uncontested.
Israel has never even purported to annex these territories, knowing that doing so would raise awkward questions about the rights (or lack of them) of the indigenous population living there. Jordan renounced all claims to the West Bank in favor of the Palestinians in July 1988. While Egypt administered the Gaza Strip for 19 years, it never asserted sovereignty over it. Since November 15, 1988, when Palestinian independence and statehood were formally proclaimed, the only state asserting sovereignty over those portions of historical Palestine which Israel occupied in 1967 (aside from expanded East Jerusalem) has been the State of Palestine.
Misleading language has been particularly destructive with respect to Jerusalem. For years, Israeli politicians have repeated like a mantra that “Jerusalem must remain united under Israeli sovereignty.” Understandably, Israelis have come to believe that Israel currently possesses sovereignty over Jerusalem. It does not. It possesses only administrative control. While a country can acquire administrative control by force of arms, it can acquire sovereignty (the state-level equivalent of title or ownership) only with the consent of the international community.
The position of the international community regarding Jerusalem, which the 1947 UN partition plan envisioned as an internationally administered city legally separate from the two contemplated states, is clear and categorical:Israel is in belligerent occupation of East Jerusalem and has only de facto authority over West Jerusalem. The refusal of the international community (even including the United States) to recognize West Jerusalem as Israel’s capital, evidenced by the maintenance of all embassies accredited to Israel in Tel Aviv, vividly demonstrates the refusal of the international community, pending an agreed solution to the status of Jerusalem, to concede that anypart of the city is Israel’s sovereign territory.
There can be no question of Israel relinquishing or transferring sovereignty over any part of Jerusalem for the simple reason that Israel currently possesses no such sovereignty. Indeed, the only ways that Israel might everacquire sovereignty over any part of Jerusalem are by agreeing with Palestine on a fair basis for either sharing or dividing sovereignty over the city (or doing a bit of both) which is recognized as fair and accepted by the international community or by agreeing with the Palestinians to transform all of historical Palestine into a single, fully democratic state with equal rights for all who live there, in which case the Jerusalem conundrum, as well as most of the other perennial roadblocks to peace intrinsic to any potential “two-state solution”, would cease to pose any problem.
This legal reality is of fundamental intellectual and psychological importance for Israeli public opinion. There is a world of difference for an Israeli leader between being perceived as the person who achieved Jewish sovereignty over Jerusalem for the first time in 2000 years and being perceived as the person who relinquished some measure of Jewish sovereignty over Jerusalem. It could be a life-or-death distinction.
One word which has been too rarely used in connection with the “peace process” (and which should be invoked more often) is “justice”. For obvious reasons, it is never used by Israeli or American politicians as a component of the “peace” which they envision. Yet a true and lasting “peace”, as opposed to a mere temporary cessation of hostilities, is inconceivable unless some measure of justice is both achieved and perceived, by both sides, to have been achieved.
It is high time for all involved to recognize and speak clearly about these fundamental realities. The clarity of thought necessary to achieve either a decent two-state solution or a democratic one-state solution would be greatly enhanced by clarity of language, by taking care to use terminology which both reflects reality and facilitates, rather than hinders, the achievement of both peace and some measure of justice.
John V. Whitbeck is an international lawyer who has advised the Palestinian negotiating team in negotiations with Israel.