The “illegal occupation” which wasn’t, and so had to be

21 min readMar 26, 2024

The Accusation Israel Runs An “Apartheid State” And An “Illegal Occupation”

In long-lived fantasy universes like comic books or movies or science fiction series, which get handed off from creator to creator, periodically a new creator will want to do something with established characters or parts of the world which is inconsistent with cannon, i.e., how writers in the past have written the characters and the world. This gives rise to a practice called the “retcon”, in which certain past facts about the characters or the world are declared to have never been true, and certain things the new writers want to be true are declared to have always been true, for the sake of achieving the writer’s goals in the present, and people pretend this is OK to keep the franchise moving along. “Retcon” is short for “retroactive consistency”.

Israel’s “illegal occupation” of the West Bank is a retcon of law and history, for the sake of those activists who are writing the story of Palestinian nationalism today. In truth, Israel’s 1967 War was a defensive war, and the UN Charter and International Law in 1967 allowed the taking of buffer territory in defensive wars. At worst, it did not forbid it, which by convention has always meant it was allowed.

Between 1948 and 1967, the international community allowed many instances of countries taking territory after victory in a defensive war. Addressing the Golan Heights, International Law expert Professor Eugene Kontorovich wrote in an address to Congress recently,

In the years immediately following the adoption of the [UN] Charter, many of the victorious Allies took territory of the defeated nations. All these annexations have been recognized, without controversy by the U.S. and international community. To mention only a few of these instances, Holland unilaterally annexed parts of Germany in 1949; Greece and Yugoslavia took parts of Italy; the U.S.S.R and Poland annexed large parts of Germany. The ILC in its deliberations specifically addressed the legal basis for these annexations: because the underlying use of force was lawful (defensive), the acquisition of territory can be permitted. Nor did this practice stop with the immediate aftermath of WWII in the 1940s. At the close of the Korean War in 1953, the Republic of Korea controlled and claimed sovereignty of portions of territory north of the pre-war boundary at the 38th parallel. Nonetheless, the U.S. and the international community has not seen any obstacle to recognizing Seoul’s sovereignty over this territory. Most recently, both Congress and the Executive have recognized Israeli sovereignty over a unified Jerusalem, though parts of the city, like the Golan Heights, only came under Israeli control in 1967. (To be sure, Israel has several other legal grounds for asserting sovereignty over Jerusalem aside from defensive conquest, such as prior title.) An examination of state practice and international legal opinion shows that international law did not prohibit, and may even have affirmatively sanctioned, defensive conquest as of 1967.
The lack of clarity is itself important, because in international law there is a meta-principle dealing with situations where it is not clear whether a rule has emerged. Known as the Lotus Principle, the rule is that when it is not clear whether an international law rule has emerged, states remain free to act. That is, the burden of proof is on those seeking to demonstrate the existence of a rule that would limit sovereign action. That which is not clearly prohibited is permitted.

Go deeper: Professor Kontorovich’s full brief on the Golan Heights

As we have seen, Palestine was a short-lived colonial territory, not a country, and ceased to exist in 1948. Therefore, Israel did not take the land of “Palestine” from “Palestinians” but took Gaza from Egypt and the West Bank from Jordan, in the same defensive war where they took the Golan Heights from Syria ( few countries have been as unlucky as Israel, to be attacked from multiple directions by multiple countries multiple times ).

Israel did so legally as a buffer against further invasion, as it had repeatedly been attacked between 1948 and 1967. Both Egypt and Jordan have made it clear in subsequent peace negotiations with Israel they do not want the land back. Therefore it should pass legally to Israel.

This should have consequences. For example, the Palestinians in the West Bank in 1967 were Jordanian citizens and have never negotiated Israeli citizenship.

By International Law, they should be considered a foreign group living on Israeli territory, fomenting rebellion, and regularly launching violent attacks against Israel. By rights Israel should be able to extradite them to Jordan and the Gazans to Egypt, as Pakistan is currently extraditing 1.9 million Afghan refugees back to Afghanistan over security concerns. In contrast, the Israeli settlers on the West Bank are living in Israeli territory, and these are not “illegal settlements”. This is not “occupation” as normally conceived since a nation cannot “occupy” its own territory.

Go Deeper: Pakistan returns 1.9M refugees to Afghanistan over security concerns

Why do we then hear so often that the West Bank is “occupied territory” and that the settlements are “illegal”? It is odd.

The answer is that there has been a retcon of International Law, devised specifically to achieve an outcome for the Palestinians, because the “international community” does not like the consequences I described above. The “international community” interpretation of the law gradually changed after 1967, and everyone is applying it retroactively to 1967, to rewrite the story to match the sensitivities of the current writers, who themselves are driving towards a particular outcome designed to achieve the death of Israel.

For example, after the 1967 war ended, the UN Security Council passed a resolution urging the parties to the war to negotiate a withdrawal of Israeli forces from the occupied territories as a means of urging peace negotiations. Jordan was the party from whom the West Bank was occupied, but in 1988 Jordan renounced any claims it had to the West Bank and subsequently signed a peace treaty with Israel without requiring the return of the West Bank territories or East Jerusalem. Nothing in the security council resolution at the time requires anything more of Israel. But, we pretend it does and a similar story holds of Gaza.

How this has happened is a long story in itself. The broad outline is one of numbers: Massive populations from Muslim countries sympathetic to the Palestinian narrative, and massive amounts of money from Arab oil and African minerals. The UN is a big social club, as are its orbiting satellites of international law and human rights organizations, not a body of moral and legal jurisprudence. Like all social clubs, if you are the biggest group and can bring big resources to the club, you will have the most influence. With only nine million Jewish Israelis, and only fifteen million Jews in the whole world, Israel has a small footprint in the club and the social club has turned its affections towards the two billion Muslims in the world, along with the four-hundred and fifty million Arab Muslims awash in both oil and oil money.

In that social club, there are enduring geopolitical reasons Israel criticism has found such easy purchase. Israel is at the intersection of multiple powerful forces, which are additive in weight despite overlapping in some ways, and mutually reinforcing in passion and intent: the ideological component of Dar al-Islam which holds Muslim lands should never revert to infidel control; anti-Western political and ideological forces, in places like China, Russia, and Iran who see anti-Israel ideology as a way to attack US interests and soft power; there are also the anti-colonialists, like South Africa, who view Israel as a western colony in the Middle East and view delegitimizing it as a way to strike back against western colonial influence; there are the Marxists and the Chomsky-ites, anarcho-leftists who share a lot in common with the other groups and just generally see the US and NATO as the source of all that’s wrong in the world and see Israel as a proxy for those powers; anti-Semitism; and Palestinian nationalism. Of these, Palestinian nationalism is probably the least of it but leads because it provides the most moral cover for these other motivations, through its rhetorical and made-for-TV links to what appears to be victimization.

In the opening of this book, there was a link to a journalistic exposè on the enormous amounts of Arab money which has gone to US universities in the last decade. Here it is again,

Go deeper: University’s Foreign Funders. How much do we know?

Authoritarian Arab governments have been pouring huge amounts of dark money into US universities,

The analyst paused for a moment before continuing: “The new money we were talking about before, the US $22 billion, is in that lump sum. It’s not really traceable. We don’t know where it’s coming from. There are no donor names and all we have is the donor country.
“We don’t know where it’s going because there are no target names and there are no names of programs or details, that the money supports. And we don’t know who donated it and if the money even got there. All we now have, since 23 September 2020 are contract beginning and end dates.”

We know 22 billion dollars in untraced, under-reported money has come into US academia from authoritarian Arab countries but not for what purposes. 22 billion dollars in US academia can buy a lot of scholarly consensus and compliant administrations. No one has to be bribed exactly. It is enough to get the right scholars hired into the right places, who can then self-select students and other scholars with similar outlooks, until critical mass is reached and every scholar starts to feel pressure to tow the line that, for example, Palestinian Edward Said is a brilliant man whose Marxist-inspired ideological framework should inform everything anyone should say about the Middle East. Once the centers of these studies have a certain consensus, other areas of academics and administration will look to them as the authorities on the topic and adopt their views too. Before you know what has happened, you will have an intellectual monoculture on the topic of Israel and Palestine.

The money pouring into universities is small compared to the numbers of people and money pouring from Muslim and Arab sources into the UN and into its satellite industry of international aid groups, human rights groups and international law organizations. I am not saying this is all corrupt money but I am pointing out these are social institutions. The sympathies and ideologies of the institutions are naturally going to follow their donors.

These are mostly stories for another occasion, but here is one illustration of it at work. In the early 2000’s a horrific genocide occurred in Sudan, and the International Criminal Court issued indictments in 2009 and 2010 for the extradition and trial of Sudan’s president, Omar al-Bashir. He was not extradited until 2020, when a new government in Sudan agreed to hand him over.

In between, he traveled the world. One of the countries he traveled to was South Africa. Here is how the Washington Post reported it at the time,

The President of Sudan was allowed to leave South Africa unmolested today, despite courts in the country ordering his arrest on a genocide warrant. The International Criminal Court, pursuing a case launched by the Security Council, issued warrants for Bashir’s arrest years ago. Yet he has roamed the globe with impunity.
Nonetheless, he has thus far avoided ICC members like South Africa. As a state party to the Rome Statute, South Africa has a treaty obligation to cooperate with the enforcement efforts of The Hague-based court. The order by the South African judge to seize Bashir generated a massive wave of excitement in the ever-optimistic international law community. But as I predicted, South Africa did not detain him, instead allowing him to return to Khartoum.
The free pass given to Bashir is another in a series of major blows to the credibility of the ICC — and in this case, the Security Council. If member states like South Africa do not take the Court seriously in cases that do not even involve its own nationals, it is hard to expect non-members to do so.

That is right. The very same South Africa which has been allowed to drag Israel into this same court on sham charges refused to do its “legal” duty and enforce the court’s order against Bashir. Similarly, you’ll see in the same article, another of Bashir’s close supporters, who cared not at all that the man had overseen a genocide,

While refusing treaty obligations to arrest the world’s leading genocidaire — known of course for his campaign against black Africans in Darfur — might seem unconscionable, Bashir has his defenders.
Among them is Palestinian President Mahmoud Abbas, who vocally opposes the ICC process against Bashir. “We must also take a decisive stance of solidarity alongside fraternal Sudan and President Omar al-Bashir,” Abbas has said. He has also expressed his “solidarity” with the Sudanese despot, and categorically rejected enforcement of the ICC warrant.
The Palestinian Authority is not alone in this — the entire Arab League backs Bashir against the ICC. But what makes the PA’s position on Bashir even more outrageous is that they have actually purported to join the ICC, and seek to invoke its jurisdiction against Israeli officials. The only other Arab League members to join the ICC are Comoros, Djibouti, and Jordan, which has distanced itself from the Bashir policy, unlike the PA.
Thus even as the Palestinians got the ICC to bend its rules about statehood to join, they were advocating the defiance of the Court’s writ in the single most important and grave kind of case, genocide cases initiated by the Security Council. In short, the Palestinians seek to exempt genocidaires from the Court’s jurisdiction while pushing for it to prosecute Israelis for allowing Jews to live in Jerusalem. The PA is involved in the trivialization and corruption of the Court from both ends.

Both South Africa and “Palestine” remained members of the ICC in good standing after this. Why? What is going on here? The key is Bashir is Arab and the genocide was against non-Arabs. As I said above, the UN and its satellites are a social club, not a temple of morality and jurisprudence. There are a lot of Arab nations, a lot of Arabs, and a lot of Arab oil money at stake in any action it takes. When it comes to Israel, the fix is in.

Go deeper: Sudan’s Bashir is the Palestinians’ and Pretoria’s favorite genocidal tyrant

The moral of this: That is how you achieve a retcon in International Law, to make something which never was into something which has to be.

In an earlier chapter, I have written in detail about one specific aspect of the retcon and how it has been achieved. You can read about it by clicking on the Go deeper link below.

Go deeper: The Secret Story of the First Palestinian State

As with retcons in fiction, it is harder than it seems to maintain consistency and integrity in the work. The “international community” works very hard to hide the seams of its pretense, but they are easy to spot once you realize you should be looking for them.

The make-believe becomes apparent when one tries to reconcile the different claims about current day Israel, Gaza and the West Bank with claims of current day Palestine, Gaza and the West Bank. In a nutshell, if the territories are Palestinian, the settlements are illegal but the occupation is not, and Israel is no apartheid state. If the territory is Israeli, the settlements are legal and there is no occupation, but there is plausibly an apartheid state which should be dismantled by expatriation of most of the Palestinians to neighboring states.

Let’s talk that out slowly.

The anti-Zionists speak as if Palestine exists and is being occupied. The UN goes along with this, and even allows Palestine to have a seat in the general assembly as an honorary state. If it is a state, what are its borders? The consensus answer of the “international community” is that the 1967 borders are the borders of Palestine.

If this is Palestine, and if Palestine is a real thing, then it has been at war with Israel since the early 1950’s, with no peace treaty ever offered from it nor accepted by it. We need to discuss this history a bit and then talk about what it means for the claim Israel is a racist “apartheid state”.

The Palestinian guerilla forces called the “fedayeen” began incursions into Israel in the early 1950’s, and in 1954 received official sponsorship from Egypt, whose president Nasser described it with this language,

Egypt has decided to dispatch her heroes, the disciples of Pharaoh and the sons of Islam and they will cleanse the land of Palestine….There will be no peace on Israel’s border because we demand vengeance, and vengeance is Israel’s death.

The “Palestine” being cleansed above refers to Israel proper, not the pre-1967 areas referred to as “Palestine” today under the retcon of the “international community”. At the time, the 1967 border areas were under the control of Egypt, Syria and Jordan, not Israel, and so these attacks from pre-1967 Palestine were acts of war, not resistance to occupation.

The fedayeen movement morphed into the PLO ( the Palestine Liberation Organization ) under the stewardship of the Soviet Union, and the PLO, as the de facto government of the Palestinians, has been carrying out guerilla operations in Israel ( many targeting civilians ) since that time. Their demand was not a Palestinian state limited to the 1967 borders but rather the destruction of Israel as a Jewish state, a demand which would constitute an imperial expansion of the Palestinian state.

This goal was explicitly in the PLO’s charter until 1993, when its successor organization modified it as part of the Oslo peace process, and it has been in Hamas’s charter since it was written in 1986 until even today. This interregnum of hope held for a brief seven years, when the Oslo process was broken by the Second Intifada, and Israel’s neighboring state of Palestine reverted to acts of guerilla war, massively targeting civilians, intended to destabilize and destroy Israel proper as a Jewish State, and to expand the Palestinian State on its bones.

Again, to be perfectly clear, this violence by the ( UN recognized ) State of Palestine were not acts of “resistance” intended simply to throw off the yolk of Israeli occupation of the State of Palestine, understood by 1967 borders. They were explicitly acts of war intended to destroy Israel proper, a neighboring country, equally as real as Palestine.

Additionally, Gaza ( through Hamas, the elected government of a different part of Palestine ) has been firing rockets into Israel proper for fifteen years, killing scores of Israelis and traumatizing a generation of Israeli children who have had to grow up running to bomb shelters on random and frequent occasions. Here is a description of life in Israel under bombardment by Gaza, sent to me by an Israeli mother in 2021 after I reached out to her to see how her family was,

Hi my dear Gregg, Thank you for thinking of us. We are OK. It’s crazy that we overcome covid, a worldwide thing, and we can not win the right for a quiet and safe place to live. We are lucky to have a strong smart army, now we just need the world to understand that we are fighting for a quiet, safe, everyday life. They have been bombing us every day for the last decade. Kids in the south are all traumatized and live with panic attacks on a daily basis. It’s impossible!!! And needs to end. I have slept in a shelter for the last week

This decade-plus of rocket attacks were acts of war. The first intifada was an act of war. The second intifada was an act of war. The many martyr operations of the 70’s, 80’s and 90’s were acts of war. The fedayeen attacks of the 1950’s and 1960’s were acts of war.

If Palestine has been a real nation state all this time, then these are acts of war by one state against another. And if these are acts of war by one state against another, Israel cannot be an apartheid state. The Palestinians are not a defeated nation, suing for peace, but a nation which has started a war of aggression and is continuing to fight.

The Israeli military has every right to make raids into enemy territory in an ongoing defensive war. Palestinian citizens have no right to access Israeli civilian courts while at war with Israel and living in their own country. Israel has every right to blockade an enemy territory engaged in war against it. Two enemy populations engaged in war should be segregated. If the enemy population is engaged in perfidy, the population of the enemy at war is properly stripped of its civil rights by the opposing military, if it can be.

If the territories of Gaza and the West Bank constitute Palestine, as most anti-Zionist activists claim, then there is no apartheid. There are simply ongoing war operations against guerilla forces, which are abused at times but by-and-large are no harsher than war permits. Similarly, the occupation is not an illegal occupation. It is a wartime occupation, which can legally continue until such time as the war ends.

Anti-Zionist forces in the “international community” like to obscure this by referencing the settlements, since international law holds it is illegal to move a population onto an enemy’s territory. Leaving aside the defensive and economic justification for the settlements, the existence of illegal settlements does not make the occupation illegal. At worst, it just creates a new bargaining chip to bring the Palestinians to the negotiating table.

On the other hand, if the territories of Gaza and the West Bank are legally Israeli territories, won in a defensive war in 1967, there is no war with a neighboring state. Rather, there is a rebellion within Israeli territory by a foreign population which refuses to recognize Israel’s legal sovereignty. Israel cannot be accused of an occupation of its own territories, legal or otherwise, and would be well within its rights to quell the rebellion by expelling all or parts of this population to the neighboring states where they originally had citizenship or residency prior to the 1967 war. Similarly, Israeli settlements cannot be illegal if there is no occupation.

However, it would be possible to accuse Israel of having something like an apartheid state, since the foreign population is segregated from other populations within Israel and stripped of its rights. The solution to this would be expatriation of the foreign population back to its original nation(s) of citizenship or residence, from before the 1967 war, similar to how Pakistan is in the process of repatriation of Afghan refugees back to Afghanistan right now.

And so this is how the rhetorical and legal shell game works, when the “international community” wants to retcon the law around the end state they are looking for: With one hand, it pretends the pre-1967 territories belong to Palestine when it wants to accuse Israel of “illegal settlement” activity and “illegal occupation”, while simultaneously ignoring this same Palestine has been waging a war of aggression against Israel proper. On the other hand, it pretends the pre-1967 territories belong to Israel when it wants to accuse Israel of being an apartheid state or to brand Zionism as racism or to color any proposed expatriation of Palestinian refugee populations as “ethnic cleansing”.

And in all cases, they reject Israel’s suggested language that the territories are “disputed”.

We are all, without our consent, therefore forced into talking about a faux crime, where the world says Israel’s settlements are “illegal” because they say Israel allows some of its population to live in “occupied” territory, an act which violates international law. But it is a weird sort of “occupied territory” because Jordan gave up claim to it, and there is now no sovereign nation it was taken from who can claim it, for it to be “occupied” from.

The truth is, Palestine is not a state. Criteria exist for statehood, and while it is not completely objective whether or not a territory meets each one, there are clear cases. Palestine is a clear case of something which is not a nation state.

Here are the criteria to be a nation: 1) The entity must have a defined territory. 2) The entity must have a settled population. 3) The entity must have a government. 4) The entity’s government must be capable of interacting with other states through treaties and other legal instruments obligating the entity.

To begin, “Palestine” has no defined territory. Let’s discuss physical reality first. No one disputes that the 1967 borders are not its territory in practice. East Jerusalem is part of Israel’s capital, a whole different nation. The Golan Heights also belongs to Israel. Gaza has been run by Hamas and is probably soon going to be run by Israel in some form or another. The West Bank is divided into three areas, A, B, and C. Area C, nearly two-thirds of the West Bank territory, is completely Israeli territory and Palestinians are actively discouraged from living there, as a physical security buffer for Israel. Area B has shared governance, and only Area A is completely controlled by the Palestinian Authority.

Beyond physical reality, in political reality the 1967 borders are also not accepted as the borders of a Palestinian state, neither by Israel nor Palestine nor important neighboring states. The Palestinians consistently maintain all the land is theirs, including the land of Israel. Even today, you most often hear Palestinians complaining that they have been “occupied for 75 years”, which makes sense only if they consider Israel to be “occupied land”, which is a rejection of the 1967 borders. Every peace talk has foundered on the issue of re-settling millions of descendants of refugees currently living outside of Israel to places inside Israel, which is just a ploy to turn Israel into Palestine through a demographic tidal wave and the ensuing violence. Israel certainly does not recognize the 1967 borders as the borders of a state of “Palestine”. Lebanon and Syria similarly reject Israel’s sovereignty, and therefore those borders.

Therefore, there is no political or physical reality to any claims about defined borders for “Palestine”.

The United Nations recognizes the Palestinian Authority ( PA ) as the government of Palestine, but it is not a proper national government. The Palestinian people view the PA as a corrupt puppet propped up by Israel and foreign powers, and they largely do not support it. It largely represents a conservative Sunni faction of Palestinians opposed by various groups representing a Salafist Sunni faction, and it has not held an election in decades, knowing it would lose.

The PA does not control most of the United Nation’s hypothetical territory of “Palestine”, since Hamas has governed Gaza, Israel governs east Jerusalem, the Golan Heights and Area C of the West Bank and half-governs Area B. The PA is supposed to provide civil services to Palestinians in Areas A and B, but corruptly pockets much of the money, and relies on Israel for the collection of taxes. It is supposed to supply security to Palestinians in Area A, but in reality Israel does what it wants. If “Palestine” came into existence tomorrow, the nation would fall into factional civil war almost immediately as the Palestinians tried to overthrow and replace the Palestinian Authority. No one knows what the outcome would be, least of all the United Nations.

For the same reasons the Palestinian Authority is not a government, its power to enter into treaties and foreign arrangements on behalf of Palestine is very limited. It cannot deliver on foreign obligations in the ways a government would normally need to in foreign agreements, because it does not have the proper levels of autonomy, public support, nor power over its people or territory.

Even the question of having a “defined population” is a bit of a kooky thing for “Palestine”. Palestinians claim a little under two million “refugees” live in Palestine, whom they claim are really the population of Israel’s territory and have an inalienable right of return. That’s more than a third of all people living in “Palestine”. So, are they “Palestinians” or not, in the sense of being citizens of “Palestine”, understood as an entity with borders not infringing on Israel’s sovereignty? It seems “Palestine’s” population is not even settled.

The UN doesn’t have the power to create or destroy states. Taiwan is obviously a nation, even though the UN refuses to recognize it. Palestine is obviously not a nation, regardless of whether the UN recognizes it. The world or the UN may claim there is such a thing as “Palestine” and pretend the land is part of that state, but that state doesn’t actually exist and never has. The UN mandate is just to maintain stability of borders between existing states. It can’t actually establish legal rights of a hypothetical future entity which never existed in the past. Even the 1948 UN resolution was just a “recommendation”. It didn’t create anything.

The make believe is just so odd.

In the anti-Zionist narrative, Palestinian’s main provocation for war is supposed to be that Israel is building settlements on Israeli controlled territory, which the Palestinians lost in a previous war of aggression against Israel. Really? It doesn’t take a genius to figure out the Palestinians will fail to convince Israel to hand over land which Israel uses as its buffer against Palestinian violence by engaging in more violence.

This have-their-cake-and-eat-it-too exercise in retconning the law is not a serious exercise in any sort of international jurisprudence. What actually is happening is strategic exploitation of ambiguity, to get to a physical outcome. It is a political/social exercise engineered by the world’s massive Muslim population in partnership with Western Leftists, and polished to a gleaming brightness, to get to a Palestinian outcome at the expense of Israel, by making sure Israel is in the wrong, no matter what it does, and to create a language around it alien enough and sophisticated enough to hide the existence of the retcon, much less the failure of the retcon to achieve any sort of justice or real consistency.

The best way to understand how things have gone so badly is to read the chapters of this resource in order, from beginning to end, clicking on the Go deeper links as your time allows. It is an immersive experience and few people will get through unchanged, having learned the context of the conflict, including parts the United Nations does not want people to learn.

This essay is part of a larger resource for parents, teachers, students, concerned individuals, and anyone else who desires to contextualize the conflict and navigate the accusations against Israel and Palestinians.

All Chapters:

0. Foreword to Zionism and Anti-Zionism

1. The Gish Gallop of Anti-Zionism

2. Genocide or Just War?

3. For Hamas, The Suffering Is The Point

4. What Is Israel? Why So Much Violence?

5. The Hebrew People, Not the Jewish Religion

6. Chosen For Their Insignificance, Not Their Superiority

7. The Incoherence of, “I am not anti-Semitic. I am just against Zionism.”

8. Refugee Immigration, Not Settler Colonialism

9. Zionism, Arab Feudalism, and the Tragedy of the Serfs

10. How the Zionists Saved ( Not Conquered ) Palestine