This is not an "occupation." It is legitimate and entirely lawful self-defense. It would be a lie — a blood libel — for the United States to declare Gaza to be occupied territory. Many Israelis and others believe it was a mistake to end the occupation of Gaza and allow it to become a base for terrorist attacks. Under international law, a military occupation may continue as long as there is belligerence, as there certainly continues to be. Pictured: Missiles, launched by Hamas from within densely-populated residential neighborhoods in Gaza, streak towards Israeli towns and cities on May 16, 2021. (Photo by Mohammed Abed/AFP via Getty Images)
Just when Congress overwhelmingly defeated an effort by eight radical Democrats and one Republican to defund Israel's Iron Dome defense system, several "mainstream" Democrats proposed legislation that is equally dangerous and filled with half-truths, omissions and outright fabrications.
Congressman Andy Levin has introduced a bill that purports to further the "two-state solution" to the Israeli-Palestinian conflict. Although I favor two states for two peoples, I strongly oppose Levin's perhaps well-intentioned but ill-conceived bill, because it would destroy any prospect for peace, would reward and encourage terrorism and disincentivize Palestinian leaders from negotiating with Israel.
The bill declares that the West Bank, East Jerusalem and the Gaza Strip are occupied territories and must be referred to as such by all American statements. It implies that the occupation is illegal and entirely the fault of Israel.
First and foremost, it is a categorical lie to say that Gaza is occupied. There is not a single Israeli soldier, policeman, settler or citizen in Gaza. The occupation ended in 2005. Gaza could have become Singapore on the Mediterranean, with a seacoast, farming and democracy. Instead, Hamas overthrew the legitimate government of Gaza by force and assassination. It "occupied," in effect, Gaza. It was only after Gaza became a terrorist enclave and committed war crimes by rockets, terror tunnels and terrorism that Israel imposed restrictions designed to protect its civilians. This is not an "occupation." It is legitimate and entirely lawful self-defense. It would be a lie — a blood libel — for the United States to declare Gaza to be occupied territory.
Many Israelis and others believe it was a mistake to end the occupation of Gaza and allow it to become a base for terrorist attacks. Under international law, a military occupation may continue as long as there is belligerence, as there certainly continues to be. Had Israeli troops remained, Israel would be criticized. Now that they have left, there is still criticism. For some, Israel can do no right.
Jerusalem is more complicated. The Old City's Jewish Quarter and the Western Wall had been illegally occupied by Jordan between 1948 and 1967, and excluded Jews. When Jordan attacked Israel in June 1967, Israel liberated these ancient Jewish sites and opened them up to all. These are not occupied territories. Nor is the rest of East Jerusalem, which is part of a united city.
The West Bank is also complicated. Some of the area — the Etzion Bloc, Maale Adumim, Gilo — are disputed but will remain part of Israel even under a two state solution, as Palestinian leaders have acknowledged. These areas are not occupied. As to the rest, Israel twice offered to end its presence in more than 90% of the West Bank in exchange for peace. The Palestinian leadership refused these offers and are thus responsible for the current situation.
The bill proposed by Levin and his fellow Democrats encourages the refusal of Palestinian leaders to negotiate painful compromises that are essential to achieving peace. It also rewards the pay-to-slay and terrorist policies that are the primary barriers to peace. It sends a dangerous message to Palestinian naysayers: you don't have to negotiate or compromise; the United States will compel Israel to give in to your demands without requiring the Palestinians to negotiate, compromise or give up terrorism.
A far better bill would be one that conditioned reopening the Palestinian embassy on a willingness of the Palestinian leadership to return to the negotiating table and engage in genuine and honest discussions leading toward a peaceful two-state solution that assured security for Israel and autonomy for the West Bank Palestinians. (There can be no solution for Gaza except a military one as long as Hamas remains in charge, persists in its terrorism and refuses to recognize Israel.)
A two-state solution is far from perfect, but it is far better than the one-state solutions advocated by the hard left and Palestinian extremists (one Palestinian state) and by some Jewish extremists (one Jewish state.). It may also be better than the status quo.
The one way to assure that the Palestinians will persist in their refusal to negotiate would be to enact the misguided Levin bill into law.
Alan M. Dershowitz is the Felix Frankfurter Professor of Law, Emeritus at Harvard Law School and served on the legal team representing President Donald Trump for the first Senate impeachment trial. He is the author of numerous books, including "Guilt by Accusation: The Challenge of Proving Innocence in the Age of #MeToo" and "The Case Against the New Censorship: Protecting Free Speech from Big Tech, Progressives and Universities." His podcast, "The Dershow," is available on Spotify and YouTube. He is the Jack Roth Charitable Foundation Fellow at Gatestone Institute.