John Quigley is President’s Club Professor in Law at the Ohio State University. His books include The Case for Palestine: An International Law Perspective (Duke University Press, 2005).
The World According to Whitbeck
by john v. whitbeck
Washington, D.C., Five and Ten Press, 2005. 100 pages
Paperback: $10.00
John Whitbeck is an American lawyer working in Saudi Arabia who writes widely on the Palestine–Israel question. His work on this topic appears frequently in newspapers and journals throughout the world. The World According to Whitbeck collects a number of these short pieces, to provide the reader with ready access to them. Despite the collection’s title, this book focuses on the Palestine–Israel situation.
Whitbeck’s essays provide a topical, and well-informed, set of views about the Palestine–Israel conflict. Whitbeck has been seriously engaged in the issue for some years and displays a thorough understanding of both the legal and political dimensions of the conflict that keeps Palestine–Israel in flames. He proposes measures that may surprise readers but which, on reflection, they may decide hold promise. He says that Palestine should apply for United Nations membership, as a response to Israeli prime minister Ariel Sharon’s efforts to extinguish Palestinian hope for an end to Israel’s occupation. This proposal may seem out of place to those who don’t view Palestine as a state. Yet Palestine, Whitbeck says, is a state already, as declared by the PLO in 1988, despite Israel’s occupation of its territory. Over one hundred states of the world, Whitbeck points out, have recognised Palestine as a state.
Whitbeck’s view on the statehood issue is well grounded. The territory of Palestine is one to which the Palestinian people are entitled by virtue of long-time inhabitation. Under international law, statehood is not negated if territory is militarily occupied by another state.
Whitbeck also says that Palestine should ratify the statute of the International Criminal Court (ICC), in order to render Israeli officials accountable for Israel’s West Bank settlements. The statute, an international treaty, characterises it as a war crime to transfer one’s citizens into territory held under belligerent occupation. Hence, Israeli officials could be prosecuted and jailed for placing Israeli settlers in Palestinian territory.
This proposal may seem out of place for the same reason as the proposal to apply for UN membership. Only states ratify treaties. A Palestinian effort to ratify the ICC statute would, again, be based on Palestine’s status, in Whitbeck’s view, as an existing state.
Much of Whitbeck’s writing in these essays is directed at finding a law-based, yet politically feasible, solution to the Palestine–Israel conflict. The “road map” for Middle East peace, says Whitbeck, is illogical in its conception. He views the road map as based on the premise that if the Palestinians renounce violence, Israel will end its occupation of Palestinian territory. He sees no reason to think this would happen.
A stumbling block to any acceptable outcome, Whitbeck says, is the United States’ unflagging support for Israel. He sees US policy as dictated by Israel and looks forward to an eventual “liberation of the United States from foreign domination” (p. 54).
Whitbeck appropriately criticises the Madrid–Oslo route to peace. He says that one cannot leave the two parties to negotiate on their own, given the disparity of bargaining power. He thinks it preferable that the United Nations devise a peace that would respect the rights of the Palestinians. Only such a peace, in his view, would be a stable peace. However, he views the United Nations, hamstrung by the US stance, as unable to impose a settlement based on legal principle.
The approach advocated at the United Nations from the 1970s was premised on a full Israeli withdrawal from Gaza and the West Bank, including the withdrawal of settlers. It was also premised on respect for the right of repatriation of the Palestinians displaced in 1948 and their progeny. The UN approach was derailed by the United States when it organised the conference at Madrid in 1991. That conference was based on the premise that the two parties should negotiate whatever solution they might be able to reach. This new approach left the Palestinians at the mercy of the Israelis.
It is the dilemma between what should be agreed and what, given the political reality, can be agreed, that leads Whitbeck to find the unofficial Palestinian–Israeli 2002 Geneva initiative for a two-state solution an attractive possibility. The Geneva plan, he concedes, falls short of giving full rights to the Palestinians. It would not, he says, effectuate a right of return for the Palestinians displaced in 1948. “However,” he states,
if [the Palestinians] were to reject peace on this basis, it would be vastly more likely that the Zionist project would be carried through to its logical conclusion—the total ethnic cleansing of the entire indigenous population of Palestine—than that they would ever achieve all of their rights under international law through negotiations. (P. 66)
Whitbeck’s most well-known essay is “Two States, One Holy Land”, and it leads off this collection. First published in the Los Angeles Times in 1988, it has been reprinted forty times in a variety of languages. In this essay, Whitbeck follows through on his analysis that Palestine is not in a position realistically to insist on full rights. He begins, rather, with the positions of the two sides, and their desires. From there he endeavours a compromise.
Whitbeck’s proposal is that a single “Holy Land” be created as a two-state confederation, consisting of an Israeli state and a Palestinian state. Each would be sovereign, and each would have its own territory, except that Jerusalem would be a “condominium, forming an undivided part of both states” (p. 4), and the capital of each. Jerusalem would be administered by a joint council and by neighbourhood councils. Inhabitants of the Holy Land, regardless of whether they lived in Israel or Palestine, could opt for the citizenship of either. That choice would determine in whose national elections they voted, and who issued their passport. Regardless of the citizenship chosen, a person would vote in local elections at the place of residence.
Regarding the outside world, each state would exercise control at its external border. Whitbeck does not specifically address Israel’s “Law of Return”, under which Jews anywhere are entitled to admission and citizenship. Presumably they would be confined to the Israeli state.
In a concession to Israel’s security concerns, Whitbeck says that Palestine “could be fully demilitarized, with only Palestinian police allowed to bear arms within its territory” (p. 5).
As for as the division of territory between the two states, Whitbeck writes that borders “would have to be drawn on maps but would not have to exist on the ground” (p. 4). He points to other examples of territories that have been jointly controlled by two states. Nevertheless, it is not clear whether such joint control would work in practice. Israel is likely to continue to hold greater power than the Palestinians. Under Whitbeck’s plan, only it would have armaments. Presumably, Israel would continue to enjoy the backing of the United States. Hence, Israel might be in a position to impose its will even in Palestine. It is that concern that makes an entirely separate Palestine state seem, to many, more advantageous to the Palestinians.
Whitbeck analyses the situation of Israel’s West Bank settlers in tandem with that of the Palestinians displaced in 1948. Israel, he says, has the right to exclude any Palestinians it finds unacceptable, whereas Palestine has the right to exclude any Israelis it finds unacceptable: “[O]nly those Israelis acceptable to Palestine would have a right of residence in Palestine and only those Palestinians acceptable to Israel would have a right of residence in Israel” (p. 37).
While giving an appearance of even-handedness, this proposal overlooks a fundamental difference between the two populations. The Palestinians resident in Israel, or displaced therefrom, are indigenous inhabitants, enjoying a right to continued residence for that reason. The Israelis are settlers, imposed on Palestine in violation of international law, enjoying no right of continued residence. While it would be open to Palestine, as a sovereign state, to decide whether to accord residence rights to these settlers, it is not open to Israel to make the same decision for the Palestinians.
Another stumbling block is the rights of Palestinians on whose land Israel has built settlements. Israel has taken possession of such lands and has destroyed buildings to construct its own. Yet Israel has not purported to take title away from the Palestinian owners. It has taken only use rights, and those rights would, under international law, terminate when Israel ends its belligerent occupation. If Palestine agrees to let the settlers remain, the titles of Palestinian owners would either be declared invalid or would de facto be meaningless. Palestine would be in the position of agreeing to the taking of land tracts from Palestinians who still have title, and of giving that land over to the unlawful settlers.
Jerusalem, according to an essay titled “Sharing Jerusalem: The Condominium Solution”, would be more jointly controlled than the rest of Israel–Palestine. Hence there, the problem of Israel’s political predominance would be an even greater risk for the Palestinians. Nonetheless, since the territory is smaller, there is more reason to believe that joint control might be feasible.
With Jerusalem, of course, the issue of Israel’s settlers looms even larger than it does in the remainder of the West Bank. By massive takeovers of neighbourhoods, Israel has inserted enough settlers into east Jerusalem to change its demographic character radically. Whereas in 1967 Jews did not inhabit east Jerusalem, now they form a majority there. If one contemplates a political solution that leaves them in place, Palestinian control of even east Jerusalem becomes ephemeral. In the view of many analysts, any proposal for Jerusalem must include a mechanism for ensuring a pullout of Israel’s settlers and for realising the land rights of the Palestinians on whose land these settlers are living.
Jerusalem, as Whitbeck points out, was the subject of special consideration by the international community in 1947, when the United Nations called for temporary international control of the city, as an entity separate from either Israel or Palestine. Israel has no basis for a legal claim to sovereignty in Jerusalem. It holds the eastern sector as a belligerent occupant only. When the Jewish Agency declared Israeli statehood in 1948, it based itself on the 1947 UN partition resolution, which did not call for Israeli sovereignty in any part of Jerusalem.
The duality reflected in Whitbeck’s essays—on the one hand insisting on what the international community regards as a legitimate solution, while on the other seeking to find common ground between the two parties—is emblematic of a dilemma that faces anyone who seeks a solution to the Israel–Palestine conflict. On the one hand, there appear to be obvious principles that should lead to particular solutions. Sovereignty belongs to those who have long inhabited a territory. Displaced persons are entitled to return. Belligerent occupation does not entitle a state to settle a territory with its own citizens. Observance of these principles is widely viewed as necessary when resolving territorial disputes.
On the other hand, given the circumstance that Israel is unwilling to fashion a solution consistent with international law, and that Israel is backed by the United States, it seems appropriate to many analysts to dispense with solutions based on principle and to try to split the difference between the positions of the two parties.
Whitbeck says that “international law and the moral conscience of mankind have always been the Palestinians’ only assets” (p. 49). He appropriately stresses international legality as the basis of the Palestinians’ major positions. The Palestinians have already compromised, as Whitbeck notes, on the matters to which they are entitled. In the post-Oslo negotiations, President Arafat conceded Israel’s existence, despite the fact that Israel took territory unlawfully from Palestine and expelled most of its inhabitants.
Making that compromise, an act that was highly controversial, seemed to the Palestinian leadership to be more than enough. Arafat’s compromise, it was hoped, would yield an Israeli withdrawal to the 1967 lines and a willingness to repatriate the displaced Palestinians. It did not. The compromise was taken by Israel as a sign of weakness. Its response was, “Thank you very much, what else will you concede?” Further concessions might similarly yield nothing.
While one can easily cast stones at Whitbeck’s proposals, it is nonetheless helpful to see plans devised by one who fully understands the international law that backs Palestine’s positions on the major issues, and who thinks, in principle, that those rights should be respected as part of a solution. The essential dilemma in devising a Palestine–Israel settlement remains the fact that, as Whitbeck says, legality and morality favour Palestine, while political power favours Israel. The challenge is to overcome the political power to ensure a settlement based on principle.
