Is Israel Occupying the West Bank? (with Eugene Kontorovich)

Jul 1 2024

To international law expert Eugene Kontorovich of George Mason University, all the arguments that make Israel out to be an occupying force collapse under the weight of a single, simple fact: A country cannot occupy territory to which it has a legal claim. Listen as Kontorovich speaks with EconTalk's Russ Roberts about the legal issues surrounding occupation as well as the moral issues of Israel's treatment of the Palestinians. They also discuss the crazy-quilt legal environment of jurisdiction in the West Bank in the aftermath of the Oslo Accords of 1993. Finally, they explore the likely outcomes of current proposals for a Palestinian state in the West Bank.

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0:37	Intro. [Recording date: June 6, 2024.] Russ Roberts: Today is June 6th, 2024, and my guest is Professor Eugene Kontorovich of the Scalia Law School at George Mason University. His specialties are Constitutional law and international law. Our topic for today is what is sometimes called the West Bank, sometimes called Judea and Samaria, and sometimes called the occupied territories, and sometimes called the Palestinian Territories. Eugene, welcome to EconTalk. Eugene Kontorovich: Great to be with you Russ.
1:05	Russ Roberts: The area we're talking about, which I'm going to try to call by the somewhat-neutral name, the West Bank, was taken by Israel from Jordan in the Six-Day War in 1967. It is west of the Jordan River. It consists of towns where Arabs live, where Jews live. There are about 450,000 Jews in the West Bank. Another 250,000 live in what's called East Jerusalem, which is technically a separate area. And, there are about 2.7 million Arabs in the West Bank. Now, many people describe Israel's role in the West Bank as an occupation--that Israel's towns and settlements violate international law. Let's start with that case. I know it's not your view, but for the people who consider Israel an occupying power, what is their argument? Eugene Kontorovich: So, first I think, let's start even before anybody's argument and try to understand what an occupation is. Because an occupation is a term of art. That is to say, it's a technical legal term. It doesn't just mean a bad situation. It has a very specific meaning, and it is a term within a subset of international law called the international law of war, or international humanitarian law, as it's also known. So, an occupation is a very particular situation that arises in an international armed conflict. That is to say, a conflict between two countries--that could not arise in a civil war, for example--in which one country takes over the territory of another country and then begins to actually administer it and sort of serve as the local government. That is to say, not simply holding it on the battlefield, but kind of replaces the prior government as the acting administrating power in that territory. So, you need a war; you need two countries, an international war; and you need one country to come and replace another country. One crucial point is not every time a country takes territory that is previously held by another country, in a war, would it be an occupation. That is not automatic. So, let me give you some examples. Let's say Ukraine retakes Crimea. Even though it has been held by Russia for a very long time, we wouldn't say that's an occupation; and we can explain why. nother example, in 1974, Morocco invaded and took over the West Bank--pardon--the Western Sahara. And, many, including many European countries don't refer to it as occupied. Rather they call it disputed territory or administered territory because it failed the two-country ingredient. That is to say, Western Sahara was not previously a country. It was a kind of abandoned Spanish colony. So, you don't have an international armed conflict, so it would not be occupied. So, there's some technicalities, and I think Western Sahara clearly illustrates that. The basic argument of those who say that Israel is occupying the West Bank, which was laid out in position paper--a legal opinion--by Jimmy Carter's State Department Legal Adviser--a guy named Hansell--wrote a legal opinion in 1977, which sets the basic arguments for the case of occupation. And, the argument goes like this. In 1967, Jordan held the territory, the West Bank. Israel took over the territory in 1967 and began functioning as the local government. Thus, occupation. Now, that argument fails to address I think some obvious questions like Jordan was not the sovereign of that territory. That is to say--and we're going to go into this in a second--but, everybody agrees, or certainly the United States and Western European countries agree that Jordan itself was an occupying power in the West Bank. That was not Jordan's sovereign territory. So, the argument--and I think here the argument does a bit of hand waving or skipping inconvenient wrinkles--they say, 'Well, it was Jordan's enough.' It was Jordan's enough. I don't know what that means exactly. Now, crucially, even under the Herbert Hansell opinion, which was written in 1977, Israel would not be considered an occupying power today. Why? Because occupation can only exist in wartime. So, when he wrote that opinion--there's actually a sentence in that opinion. It was written in 1977, so you could say things like this safely because you might've think they'd never happened. It said, of course, if Israel were to make peace with Jordan, then there'd be no state of war--if there was an actual peace treaty--and so there would be no occupation. Now, of course, Israel did make peace with Jordan--unconditional peace--in 1994. That would make, under Herbert Hansell's own opinion, any state of occupation that did exist in 1967--which I think did not exist--but, even in that view, it would be hard to understand how it survives the peace treaty. And, I'll give you plenty of examples of that. For example, America occupied Germany into the 1950s. Then it creates a new German government, makes peace with that new German government. And, the fact that there's hundreds of thousands and millions of American soldiers in West Germany, it doesn't make it an occupation. Or take Afghanistan, which America invaded in 2001, 2002, when it set up an Afghan government in I believe 2003, and made a peace treaty with that government. The continued presence of American soldiers who were engaged in constant hostilities for many years, often against the declared desires of the Afghan government, was not an occupation because there was no war between America and Afghanistan. So, I think they have a problem with the peace treaty and with Oslo.
7:42	Russ Roberts: So, let's go back and flesh out your argument about Jordan not being a sovereign power. It's fascinating. For people who don't know the history, I think there's still some issues to resolve, but it's an extraordinary reminder of how complicated the situation is. We have to go back another 20 years to 1947, 1948. The UN [United Nations] in 1947 has a partition plan. It's a very strange partition, but--you look at it, it's quite bizarre. About 60% goes to Israel, is the proposal; 40% is going to go to the Palestinian people. But of course, that 60% is misleading. A lot of the land that is that proposed State of Israel is desert. Nobody lives there. Most of the towns in the country and the Palestinian Mandate that had been run by Britain until then are going to fall into the Arab part. And, Jerusalem is going to be an international city. So, it's 60% Israeli, 40% this new Palestinian country that's going to be proposed. And, the city of Jerusalem will be international. Israel accepts the plan with holding its nose, doesn't like it, but it's better than nothing. The Arab countries oppose the plan. Israel declares a state and the Arab countries surrounding Israel all invade. What happens next? Eugene Kontorovich: Okay. So, first of all, the partition plan proposal by the General Assembly in 1947 is often a starting point for these discussions. And, again, I think as a lawyer, my first question is--what they teach you in law school is how to identify the legally relevant facts. There's always a lot of facts. Which facts are legally relevant? So, for that partition proposal to be legally relevant it would have to be that the United Nations General Assembly is in the business of making countries and drawing their borders. In fact, it is not. It has never made a country and it has no authority to draw its borders because the United Nations General Assembly is a treaty organization. The only power it has is over its own budget, and all it can do is make recommendations. Palestine: U.N. Partition Plan, 1947, showing the six disconnected triangles of land allocated. Source: Detail from https://maps.lib.utexas.edu/maps/historical/israel_hist_1973.jpg. Perry-Castañeda Library Map Collection, U. of Texas. And, by the way, they knew that in 1947. If you read the resolution, it is worded as a recommendation to Britain, who was the League of Nations mandatory power; and Britain thought the recommendation was very unwieldy because you mentioned it was a strange map. It actually divides Mandatory Palestine--which was what the entity was then called--into six triangles, kind of. And, the Arabs get three, the Jews get three, and none of the triangles are actually adjacent. Jerusalem and the greater Jerusalem area, including much of Bethlehem, is an international city. Jaffa is a Palestinian enclave, which is now part of Tel Aviv, part of the Arab state. Even the British, which were not excited about a Jewish state, thought that this would be an unworkable solution. The Jews accepted it because the other option that the UN was considering recommending was no Jewish state. So, the Jews celebrated because this was the less bad of two options in the diplomatic sphere. But it doesn't have any legal effect. Now, when Israel declares a State, that is a legally important moment because of international law doctrine called uti possidetis juris. Now, this doctrine may sound obscure, but it is the doctrine in international law that is used to determine borders of new countries. This is not controversial. You can look it up in an international law encyclopedia. From Africa to Asia, from the International Court of Justice to various arbitral tribunals, this is the rule that is used to determine new countries. And, I think it's actually interesting to think as an economist maybe to think why it is the rule. We can get to that in a second. The rule is: when a new country is created--now, it doesn't say 'when' a new country is created. For a country to be created, it has to satisfy various objective conditions. One can have a big dispute about when those are satisfied. For example, there's such a dispute now about a Palestinian State. There's such a dispute now about a Somali State, Somali land state, and a Kurdish State. But, generally accepted that Israel met those criteria. It had a territory; it had a government in 1948. How do you figure out the boundaries of a new country? And, the reason there's a rule for this in international law is it happens fairly often. So, just to give you an example, there was 50-some countries in the United Nations when it was created. Now there's 193, with maybe more to come. So, let's take an example that is not as ideologically controversial, that is not in the newspapers all the time because I think it's easier for people to think calmly about things that they're not emotionally attached to. So take, for example, the former republics of the former Soviet Union [USSR]. Take the former Soviet Union. You had a country that was called the Soviet Union. Now, when the Soviet Union disintegrated, various components of the Soviet Union declared independence. So, how do you figure out the borders of say, Ukraine? Azerbaijan? Armenia? All of whom had border disputes, with Russia primarily? So, the rule is: When you have a new country emerge from the breakup of a prior country, secession, federal breakup, or even, like, divorce--like in the case of Czech Republic and Slovakia--the country's borders are the borders of the largest pre-existing administrative unit. And, to put that just in very simple terms, in America, that would be a state. In Canada that would be--what are they called them? A commonwealth? Russ Roberts: Provinces. Eugene Kontorovich: Provinces. In Germany that would be a Länd[?] And, in the Soviet Union--that would be the Soviet Socialist Republic--there were about 16 of them. They were the top level administrative units. Now, what does that mean? What that means is you don't look at a bunch of other factors. History, demography, topography, fairness. Why? Because all of those factors are indetermined. Right? History: where do you go back to? Demography? Demographics never perfectly match political boundaries because groups kind of spill over into different places in different concentrations. Fairness? Who decides fairness? What recommends this rule is it's one factor and very simple to administer. You just look. Now, what this means is often it won't comport with notions of fairness or demographics because the previous top level administrative unit will often, typically have been drawn by a former colonial power, etc. Nonetheless, this is the rule. And let me give you some examples. Take Crimea for example--as Vladimir Putin did in 2014. The international community does not regard that as being rightfully Russia's. Now, is it because of this concept we hear often by the Palestinians, self-determination? That the people of Crimea don't want to be part of Russia? No, the majority of them were ethnically Russian, and they probably did want to be part of Russia. Not 95% or whatever they had in the election that Putin held. That's just the only number that comes out of Russian ballot machines. But, a majority for sure. And, who knows what the right majority is. Is it that it was colonial? That it was far away from Russia, like across the seas? No. It was in between Russia and Ukraine, kind of evenly; and Russia certainly has a superior historical claim. What was the story? Crimea was part of the Russian Soviet Socialist Republic and had been part of the Russian Empire until the 1950s when Nikita Khrushchev, the Secretary General of the Communist Party, redrew the internal maps and gave Crimea to the Ukrainian Soviet Socialist Republic. Did he ask the people there? Was it fair? Was it just? No. Nonetheless, it was very clear that Crimea was in the Ukrainian Soviet Socialist Republic. And, thus it became, when part of the country Ukraine when Ukraine got independence, rather than the country of Russia. And, when Russia objected to that, making basically what the Palestinians are making--an ethnic argument--that you should redraw this on ethnic lines, the international community rejected that argument. And, surely if God were to smile upon the Ukrainians and they were to have some amazing, miraculous military success and retake Crimea from Russia--which doesn't seem in the cards now, just as it didn't seem in the cards for Israel for a while to retake the West Bank of Judea and Samaria--I don't believe anyone in the international community would deem Ukraine an occupier. Let me restate this all very simply: You cannot occupy territory to which you have a legal claim. Now, let's apply that rule, if we may, to the case of Israel in 1948, like you said. Israel declares independence. So, what are its borders? The borders of the last top level administrative unit. What is that? What was called Mandatory Palestine. And that was an entity created by the League of Nations. The League of Nations was, unlike the UN, given power to create mandatory territories out of former Ottoman and German Empire colonies, after the collapse of those empires. And, those were supposed to turn into new independent nation-states. The boundaries--and Palestine did not mean Palestine in an Arab ethnic sense. It was a purely geographic name for this territory. And, what were the boundaries of that territory? It was what you would call between the river and the sea, or that is to say what we would now call Israel, Gaza, and Judaea and Samaria, as it was actually called by the United Nations at the time, or now what some people would call the West Bank. That was the boundaries. Every other mandatory country--because Israel was not the only one: Lebanon, Syria, Jordan, places in Africa--inherited exactly the borders of the mandate as it stood at the moment of their independence. So thus, Israel's borders at the moment of independence--which is when you apply this rule--would include Judaea and Samaria. Now, Jordan immediately invades. The invasion was already underway in many ways before Israel declares independence. So, Jordan immediately invades. They make this blitz towards Tel Aviv. Egypt makes a dash along the coast towards Tel Aviv, and the goal of these invading armies--joined by other Arab countries--was to meet in the middle, Molotov-Ribbentrop, and divide the spoils of the country between them. They partially failed: thus the creation of the state of Israel. Had they succeeded, there would be no state of Israel: No one would say, 'Oh, UN General Assembly resolution is being violated.' That would be it. All the Jews would have to be--would be ethnically cleansed. But, they also partially did succeed. That is to say, Jordan managed to get a certain distance. Egypt got a certain distance. Why is the Gaza Strip known as the Gaza Strip? There's no natural eastern boundary of the strip. The Egyptian armored columns proceeded up against along the coast. They got a certain distance, they got pushed back a little bit, and that is where they stopped. Similarly, Jordan went up to the hills of Samaria and Judaea and they were stopped there. That's why the so-called Armistice Line, which was made at the end of this war, runs through the middle of Jerusalem. That's not a natural boundary. That's simply where the Israeli army managed to stop the Jordanian army. So, the entire entity of the West Bank could be redefined. I think a simpler way to put it is the extent of success of Jordanian aggression and conquest in 1948 and 1949.
20:09	Russ Roberts: And therefore, your argument is going to be that when Israel in 1967 takes that land back, they're not occupying it. There are a large group of Palestinians that in a minute we'll talk about whether that's outside of the legal question--what does that lead to and how should we think about it? But, I just want to stop for a second and make the side point--because it's surprising, I think, for people who are not aware of the history--that between 1948 and 1967, the Gaza Strip was administered by Egypt. They considered it part of Egypt. The world considered it part of Egypt. The West Bank was, quote, "Jordanian." The world did not agree with your assessment that that land should have been part of Israel. It was considered Jordanian until 1967 when Israel took it back--or took it, depending on your prejudices, interpretations, and so on. In that time, there were a lot of Palestinians there in the West Bank and in Gaza. And, let's remind listeners where they came from. In 1948 when Israel declared itself a State right after the British gave up and said, 'We're done. We can't handle this idea of two States. No one seems to like it.' Israel said, 'Well, we like it. We're declaring a State.' And, the Arab neighbors said, 'We don't like it. We're going to conquer you.' And as you said, Eugene, they were going to divvy it up. They were not going to create a Palestinian State. And, when that war broke out, Arab residents of what we would call in 1967--the borders of Israel that many people grew up with, Arabs, some stayed and became Israeli citizens. There's two million of them. They have complete rights in the modern State of Israel. They go to college, they vote. They don't have to serve in the army if they don't want to. Some do, though. They get healthcare. They get all the benefits and blessings and curses of being an Israeli citizen. So, some stayed. Some fled for their lives, either because the Israeli army was advancing and they were afraid, or because they were told that it was only going to take a little bit of time: the Arab armies would defeat the Zionist entity, and you'll be able to go back to your homes. But, my point is, is that those who fled, whether they were pushed out by Israeli military force or they fled out of fear of what was going to happen or because they were encouraged to, many of them settled in the West Bank and in Gaza. And, in the period between 1948-1967 when those areas and those Palestinians were living under the sovereignty of Jordan on the West Bank and Gaza Strip under Egyptian sovereignty, no one said they deserved to stay. At least I don't remember that. Tell me if I'm wrong. Eugene Kontorovich: Yeah. You're mostly right. I just want to quibble with a technical part of the characterization. Certainly, when Gaza was administered by Egypt and West Bank was administered by Jordan, nobody was saying that they were, a). one entity. That was a claim nobody made, that there was any connection between these two territorial entities separated by the State of Israel in between. Or, that they should be one state or two states. I would say that there was some difference in the treatment. Egypt never annexed Gaza. Egypt did not. As is the case today, even in 1948 no one really wanted Gaza, and Egypt does not want to incorporate Gaza into Egypt. They administered it under military rule. Jordan, in 1950, did claim to annex the West Bank, and that's where the name the West Bank comes from. Jordan named it the West Bank, that is to say the part of Jordan that is west of the Jordan [the Jordan River--Econlib Ed.]; because the rest of Jordan has traditionally been known as Transjordan--i.e., on the other side of the Jordan. So, it's the West Bank in relation to Jordan. That's a Jordanian name. So, they claimed to annex it. They gave them citizenship. They incorporated. Only one or two countries in the world recognized the legitimacy of that annexation. That's an important point. So, when you say countries treated it as Jordan's, I completely agree: They didn't hassle Jordan about it. They weren't, like, 'What are you doing in the West Bank? Give it up.' They completely went along with the Jordanian annexation. But, they made a point to not legally acknowledge it. Much like Turkey is not being really hassled over Northern Cyprus or Morocco is not being hassled extensively over Western Sahara, but they didn't give it a legal status. So, yeah, the idea of Palestinian statehood is not really about the Palestinians being occupied--because they were certainly occupied--everybody agrees--from 1948 to 1967 by Jordan and Egypt, respectively. But, that was not thought to warrant a Palestinian state.
25:10	Russ Roberts: And now let's move to a much--I hope we don't have too much nuance for our listeners so far. It's going to get a little bit more complicated. So, I take your point that the legal definition of occupation is hard to apply to Israel, say, over the West Bank either because Jordan really didn't have it--you could have argued it was Israel's between 1948 and 1967--or, because Jordan and Israel are now at peace, so who is being occupied? Not Jordanian territory: Only some idea of a potential Palestinian State would have to be the claim. It's not really a legal claim. It's an emotional or moral claim. Which I don't deny: it's an interesting, important thing to consider and take seriously. So, I want to turn to that moral issue. And, I think when critics of Israel today refer to Israel as an occupying state or refer to Israel as an apartheid state, they are talking about the way the Israeli government treats the Arab, Palestinian residents of the West Bank. So, let's move to that. And, to understand that which is unbelievably complicated--we will not be able to do justice to it in detail because you need a map and then you need some, too many footnotes. Oslo Agreement: Map of West Bank showing areas A (tan) and B (pink). Area C is everything else. Red line is planned barrier wall as of 2005. Source: Wikimedia. Adaptation from public domain UN source. But, what I want to make listeners aware of is that this area called the West Bank is not a monolith. It has this crazy division that comes from the Oslo Accords of 1993. It has this crazy division between areas A, B, and C. In addition, they're not really areas. It's a bad word. Areas, to me means a geographic contiguous thing, like The West in the United States. That's an area. It's the area: You could debate where it is. Is it west of the Rockies? Is it west of the Mississippi River? But, the West is--you wouldn't want to say there's some East inside the West. That's silly. But areas A, B, and C are like that. So, areas A, B, and C, even though they are called areas, a better way, I would say, to describe it, is there are three different legal regimes under which people in the West Bank live: A, B, and C. Let's try to let listeners understand the differences between areas A, B, and C. Eugene Kontorovich: Let's explain what the Oslo Accords was about. Israel never wanted to rule over the Palestinian population. That is to say the characterization of apartheid--by the way, say technically, if you read the reports by anti-Israel groups like Amnesty International and Human Rights Watch accusing Israel of apartheid, they by no means limit their accusation to the West Bank. And, they say that Israeli policies inside the green line also constitute apartheid. Russ Roberts: The green line. The green line being the border of Israel. Eugene Kontorovich: [inaudible 00:28:09]. The 1949 Armistice. Russ Roberts: Yeah. Sorry. Eugene Kontorovich: So, the Oslo Accords was a treaty--an international agreement--entered into between Israel and the Palestinian Liberation Organization [PLO], which was acknowledged to be the representative of the Palestinian people in international affairs. And, it was designed to create maximum self-government or extensive self-government for the Palestinians. And, it did so by basically dividing the area based on where people live and certain other considerations. But, 90%, let's say, of Palestinians live in area A and B. Area A and B are under exclusive civil jurisdiction of the Palestinian Authority. That means they make the laws, they enforce the laws, etc. Area A-- Russ Roberts: Before--carry on. It's important to make clear what you mean by that. They make the laws, they enforce the laws, they run their own schools, they have their own social services. Eugene Kontorovich: Taxes, budgets. Russ Roberts: They're not taxed by Israel. They're not-- Eugene Kontorovich: Actually Palestinians know even in area C, are not taxed by Israel. So, the American motto, taxation without representation: South Africa did tax blacks. They conscripted them. They made them work at various jobs. Israel has no [?] sort of control over the lives of the Palestinians. They're governed by the Palestinian Authority in essentially all respects. And, I'm going to explain the respects in which they're not in one sec. So, in area A, the Palestinians also have security control. That is to say it's the Palestinian police and paramilitaries which run the show. In area C, that is where all of the Israeli communities, called settlements by some people, are. Russ Roberts: The Jews. Eugene Kontorovich: Yeah. The Jewish communities. And, in that area, Israel has civil control and military control. And, it also has military control in the middle and the sea in area B. But the point is, since Oslo, that's how the Palestinian Authority got countries to recognize them as a State. They say, 'Look, in many ways we function as a state. We administer this government, we have a budget, we have a pension system, we have civil servants. Israel doesn't tell us what to do.' That is to say--I think the clearest proof that Israel doesn't tell them what to do is they have this law called 'pay for slay,' where they take 7% of their total budget and give it to what they call a Martyr's Fund. That is to say, payments for people who are in Israeli prison for terrorist activities or payments to their families if they died in a terrorist attack. So, Israel did not authorize that. That's for sure. And, the kind of anti-Semitic content taught in their schools, that's not a Ministry of Education, Israeli Ministry of Education curriculum that they're teaching. However, Israel does retain security control. And, many of the things that people find objectionable such as inspections, military raids are a result of that security control. But I think the key point to emphasize is: this is not a situation that Israel desired. When Israel took over in 1967, there were no checkpoints. People could go from Ramallah and drive straight to the beach in Tel Aviv. Rather, it was an organized campaign of terror called the First Intifada, followed by a much worse organized campaign of terror called the Second Intifada, that gave rise to these security measures. But, security measures do not create an occupation. An occupation is when you're actually running the government, not when you're trying to defend yourself. The UN Charter, Article 51, says every country has an inherent right to self-defense. That is, imagine if Israel said, 'You, Palestinians, can have a state in the West Bank,' and Israel continued to be attacked from the West Bank. Israel would still be there with military forces and security, as we can see in Gaza: that Israel was attacked from Gaza, so now Israel is conducting security operations in Gaza. America, for example, for many decades was threatened by terrorists from Afghanistan and Pakistan. America routinely conducted military operations--against the will of those countries--to secure itself. So, Israel's only interest is security; and that interest is a valid interest whether or not there is a state there to defend Israel's population. And, I think it's quite clear that if there were no terror actions, there would not be these security measures because that in fact had been the case.
32:56	Russ Roberts: I want to add two things. First, of course, Israel withdrew from Gaza in 2005; and not just withdrew its army, which was in the streets of Gaza, but withdrew all of its communities--the communities, the Jewish communities that were part of Gaza. They took cemeteries and relocated them. And, for reasons that I don't really understand, it's deeply troubling. It's considered okay that of course no Jews can live in Gaza once Israel leaves--because they'll be killed. And similarly in areas A and B in the West Bank, the towns in those areas--and again, it's not so much the towns in the areas--they are Arab towns that are called therefore either Area A or Area B. There are no Jews there. It's not like, oh, they're a minority or they live--there are no Jews. There are Arabs in Area C. And of course, there are Arabs in the State of Israel narrowly defined. It's a weird double standard that for some reason it's okay for Arab nations to not want to be with Jews, but Jews are not allowed to live without Arabs. And we don't want to, by the way. It's not like a goal. But it's a de facto situation here in the Middle East that I find disturbing. Eugene Kontorovich: I think it's a very important point. And, by the way, I just want to point out how I've studied this empirically. It's an empirically unusual situation. First of all, to those who would say that Israelis are terrorizing Arabs, I think the very situation that you can find a Jewish settlement full of these supposedly scary settlers with an Arab village right next door, and the Arab village doesn't have a gate, it doesn't have a fence. They're chilling. But, you will not find, like, an Arab city with an unfenced Jewish village next to it anywhere in the West Bank because the balance of terror, I think it clearly falls one way. But, I've actually done an empirical study of this question. The point you make is very important because it's one of the obstacles to the two-state solution. The Palestinian President Abbas has repeatedly said one of his conditions for independence is not just self-determination, a country. It is a country that begins free of Jews. So, I looked and I did a study of peoples who are seeking self-determination or an end to an occupation. Do they require the expulsion--complete expulsion--of whoever they have a problem with? So, for example, East Timor was occupied by Indonesia. There were many Indonesian settlers there. The East Timorese did not demand the Indonesian settlers leave. Cambodia and Vietnam. The issue actually arose in the negotiations of a North Cyprus. The Cypriots said they want the Turkish settlers out. Turkey said that's unreasonable, and the mediators actually sided with that. So, you don't have any mediated agreement to end such a conflict that has ever demanded the removal of the minority population. Russ Roberts: It's awkward to base a new country on ethnic cleansing.
35:58	Russ Roberts: But, the point I want to challenge is that: It's true that there's a strong degree of self-determination in Areas A and B run by the Palestinian Authority. And, they don't run it particularly well, and they're corrupt, and it's depressing. I have a tremendous amount of empathy for everyday Palestinians in either the West Bank or Gaza before October 7th, because I don't think they have a very pleasant life. And, part of that unpleasantness is due to the leaders that they have either chosen in the case of Gaza, and in the case of the West Bank. But, the choices aren't great. Eugene Kontorovich: And, they don't get to make them so often. Russ Roberts: It's a one-time thing, tragically. They don't get regular elections. But having said that, there is a great deal--the critics of Israel would say there's a great deal of humiliation of the West Bank population in how Israel and its military operate there. So--they also said the same thing about Gaza, by the way: that it's an open air prison and that the blockades are what caused it to be so horrible--Israel, because it was worried about weapons coming in. Now we know actually lots of Gaza was really nice. A lot of the reason it was a very bad place to live is because all of the international aid that went to Gaza was used to build some spectacular tunnels that we've found now in this war. Unbearably sad, both for the citizens of Gaza--who are not sympathetic to Hamas--and for Israel, which is having to deal with it. But, my point is, is that: if we go back to the West Bank, checkpoints are humiliating, if you want to come into Israel to work. The ability of the Israeli army to operate in cities, in areas like Jenin or Ramallah with impunity: critics allege that soldiers brutalize the population without any recourse. That Israeli soldiers who were abusive or worse to the local population really don't get any punishment. And then, worst of all the claim is, is that: because the Palestinian Authority only has a police force, not an army, Palestinians who are arrested by Israel can be held in what's called Administrative Detention without any trial--without any charges against them. And that hundreds, maybe thousands, are in that situation. And that gives Hamas the opportunity to say, 'Yeah, we want to exchange hostages for your hostages, the people who are sitting in prison that you've imprisoned without any charges.' And then, lastly, I'll just add: it's true, there aren't a lot of fences around those Arab villages, but it's horrific to me that Jewish settlers in the West Bank do terrorize now and then Arab villagers, who, many of whom are just trying to lead their lives. So, that's I think the question that defenders of Israel have to answer in this current status quo in the West Bank. Eugene Kontorovich: So, clearly Israel should do everything consistent with its security to make life pleasant for the Palestinians. Clearly also, the Palestinians have a tactic--which we see on steroids in Gaza and to a lesser extent in the West Bank--of doing things to Israel that will require Israel to make life unpleasant for the Palestinians. So, as I mentioned, the checkpoints are not Israel's original policy. Israel didn't say, 'Great. We're going to set up checkpoints.' That was a response to terrorism. Now, as for checkpoints going into Israel--and the Palestinians are not citizens of Israel. They have their own government. It is reasonable to subject people at a crossing or not citizens to inspection because they don't have a right to work in Israel. I can tell you the checkpoint doesn't work at all the other way. That is to say, if you're an Israeli citizen and you want to come into the Palestinian territory, the checkpoint is just basically going to be a lynching. So--but it's true: the Palestinians engage in provocations to make these inspections more humiliating. For example, there was a famous case--it was a particularly a horrible case--of a woman. She had some horrible--she had some leg problem. She was in a wheelchair. She had some very bad problem, and she was being treated in an Israeli hospital. So, she would come from Gaza to Israeli hospital. She would go through checkpoints. And, they put a bomb in her wheelchair, basically--which was discovered. But, now Israel has to check everybody in a wheelchair. Which must be horrible for those people. But, on the other hand, how can you not? So, when you send women with bombs--when you send women as suicide bombers--it makes it, Israel, impossible for Israel not to check them. Operating in Palestinian towns: I don't think that's a particularly serious objection because Israel is operating to disarm terrorist groups. There's terrorist groups in Palestinian towns now who are shooting into Israel across the green line, who are engaging in constant terror attacks. And, even if they were a separate country, that would be something that Israel would do--just again, as America would do such a a thing in Afghanistan which isn't shooting daily into America or launching daily attacks into America. But certainly Israel should try to make these burdens lighter. And, of course, every time it does--right?--these burdens, they go up and down. Right? Sometimes there's almost no checkpoints, sometimes--and then Palestinians will try to launch an attack to get Israel to crack down. Now--but clearly the Army should try to respect people, and clearly the Palestinians have an interest in creating provocations. Now, settler violence has become a bit of a buzzword, and I think that is a conscious political effort. That is to say: For sure, I clearly condemn any violence, any unprovoked violence. Russ Roberts: Vigilante. Vigilante or worse terrorism. Eugene Kontorovich: That's a good word. Hooliganism. Whatever. The whole range. But, the extent to which this exists is, you know, I think highly debatable. Where do our data? So, the United States State Department speaks a lot about settler violence and is constantly speaking about settler violence has now recently implemented sanctions as a response to settler violence. Much of the information comes from the UN. The UN, of course, is biased against Israel; I think needs no elaboration. Where does the UN get it from? The UN does not have its own investigative team. They get it from a series of European-funded anti-Israel NGOs [Non-profit organizations], which uncritically report any data given by given by Palestinians. And, what they basically do is: any Palestinian that is injured under any circumstances in the West Bank is chalked up as settler violence. Whether or not it is actually-- For example, let me just give an example. I just took a look at some of this data. The UN alleges that seven Palestinians were murdered by extremist settlers in 2023 before October 7th. Among these victims of settler violence was someone who was shot by the army while trying to infiltrate Israeli settlement, armed with a knife and explosives. Another one who was shot dead by a civilian after breaking in their farm, trying to stab them. Another who was shot dead after firing and killing four Israeli civilians, including two children, outside of a hummus restaurant in the Israeli settlement of Eli. All of those show up in the Israeli settlement violence data. So, because this data does not distinguish from self-defense, clear self-defense, etc., it's, I think, worthless. Now, I'm not saying there's no issue. But certainly the reported data give you no sense of its magnitude. Indeed, the Israeli, Chief of Israeli Police, which tries to crack down on this, says that actually the amount of such violence has decreased 50% over the last year as a result of heightened police enforcement. By the way, when Israeli settlers are arrested for such things, they are also placed in Administrative Detention. That is to say: Administrative Detention is a term that sounds shocking to Americans because we don't have it, but it exists in civil law systems. They have it in France where a judge can basically authorize you to be held without a grand jury indictment. So, that goes both ways, the authorization for such Administrative Detentions. I do want to correct one thing. When Hamas is seeking to liberate its prisoners of war, its captives, it's not people in Administrative Detention. Administrative Detention is usually months or a year at most, pending a decision whether to try someone. The people who they are seeking to convict or release are principally convicted terrorists, including those who have been convicted by serious crimes in a variety of courts. So, certainly settler violence should be condemned. I think there have been 14 or 17 Israelis killed in the West Bank by Palestinians in the same time, in clear acts of terror. But, certainly such acts of hooliganism and vigilantism should be punished.
45:53	Russ Roberts: This question kind of answers itself, but I think it has to be asked. Some of my Israeli friends suggest that what we need to do in the West Bank is just separate. Some people want the West Bank to be annexed--for Israel to publicly and administratively make the claim that this is Israeli land. That would lead to a huge question of voting rights for the Arab citizens who live there. Then you really could have an apartheid state if Israel annexed the West Bank and did not give democratic rights to the Arabs there. But, you wouldn't have to annex the whole thing--could annex a small piece and then just say to the rest, it's yours. Run your own country. Not just the way we've been talking about it with the Palestinian Authority, where in these certain towns and cities, the Palestinian Authority has authority. Rather this area--really, an actual area--you take it, you're responsible for it, and the rest we're going to take, and for the settlements in towns that are Jewish within that area, we would remove them or ask those people to leave or compensate them in various ways; and we try to move forward. Give the Palestinians some self-determination of a bigger kind than they have now. Give them contiguous areas that would allow them to have a feeling they were part of a nation. What's wrong with that? Eugene Kontorovich: We've tried it already. Russ Roberts: We to try it, but it doesn't seem to work. So, why do you mean we tried already? Eugene Kontorovich: I'll mention a few things. First of all, this is exactly what we did in Gaza. In Gaza, we didn't just give them some contiguous territory. We gave them all of Gaza, which is not a place that is so small that it could not be a country or it could not be governable. It has a coast, it has a border with Egypt--a supposedly friendly Arab country. It was not particularly poor. Its economy had greatly improved under Israeli control. So, we left Gaza completely, and now even no Jews live in Gaza. They govern their own affairs. And the only Jews in Gaza now are hostages in tunnels. So, we left Gaza and they brought us back. We left Lebanon where we had a security zone. Again, the security zone in Lebanon, which ended in 2000, was created because of constant attacks across the Lebanese border. So, Israel said, 'We're going to have to create the zone where Hezbollah cannot operate, where Palestinian terrorist groups cannot operate.' Everyone said, 'Oh, now that's the reason they're attacking you is because of the zone that you created to prevent the previous attacks.' So, Israel fell for that argument, left; and now it's being attacked right from the border, and Israelis are in mortal fear because Hezbollah has a plan of invading and storming across the border and overrunning cities and taking hostages and having this entire crisis again of October 7th, but a thousand times worse because now they're right up to the border. I said on Twitter today, if only Israel would give Lebanon their own independent state, we could all live together in peace. Of course, it's a joke. Lebanon has an independent state. They've had an independent state since before Israel, but they don't seem to want to live together in peace. It's quite clear that the Palestinians wouldn't take what you're offering because it has been proposed on at least four occasions in internationally approved peace deals. The Palestinians don't want their own state. They want all of the territory that they claim, and they also want a connection between Gaza and the West Bank, which then separates Israel and makes Israel completely vulnerable. I wrote an article a few years ago in the Wall Street Journal, readers could look up: Take the Palestinian 'No' for an answer. That is: they have been offered this, and they keep saying no. At a certain point, nos have to have consequences. That is to say: if the PLO is the representative of the Palestinians, then their decision creates consequences for the Palestinians. But also, having a country is very different from having autonomy in the following ways. If the Palestinians had a country, there would be very little about daily life that would change for Palestinians: there are very little that they could do that they could not now do because of Israel. But, what they could do is buy military equipment that only countries are allowed to buy. Fighter planes, tanks, artillery. And, when we see Palestinians, how they can attack Israel with stuff that they smuggle in, in tunnels, and rockets that they smuggle in in tunnels, imagine what would happen. Everyone wants to hope--let's say it goes well. The idea of the two-state solution is: let's just hope it goes well, okay. But, it needs to confront this problem, what if it doesn't go well? What if there's an October 7th attack with Israel having narrow pre-1967 borders, eight miles across, and the Palestinians turn on their artillery in South Tel Aviv and Ben-Gurion airport. Then, for sure it's the end of Israel. And there's every reason to think that would happen because it has happened over and over again. Every area Israel has given up has been a base for attack against the rest of it-- Russ Roberts: Two other tragedies I want to mention if I can remember both-- Eugene Kontorovich: Other than that, it sounds okay. Russ Roberts: Yeah.
51:46	Russ Roberts: Well, one of the worst, most wrenching aspects--there's so many--of October 7th, is that many of the people who were kidnapped, murdered, burned alive, raped were people who wanted a coexistence with the people of Gaza. They were part of groups, idealistic, wonderfully, ideally wonderful groups that worked to create connections between Gaza and Israel that helped people in Gaza get to Israeli hospitals when there was not treatment available in Gaza. And slowly, slowly, I've only lived here three years, but I've absorbed a lot of lessons from my neighbors here that the dream of a Palestinian state or a two-state solution gets taken away, not just from the Palestinians, but from us, the Jewish Israelis--who I think most of us would just like to live side by side in peace and make a better world for our children and grandchildren. Certainly that was the goal of those people living in the what's called the Gaza envelope, the communities near Gaza on October 7th. And, the other tragedy that comes to mind is that those among us in our country of Israel here who favor conceding and trying out coexistence more radically with Palestinians in some form of authority, one of their arguments is: Well, after we separate, if we create a border and we give the Palestinians and the West Bank autonomy and we give them responsibility, and they're a country now. They're not just a set of cities ringing around each other and different complications with the Israeli presence. They have their own country. And that way--they take responsibility--in that way, if they violate--if they do what you suggested they might, that they stockpile military weapons and take advantage of the fact that Israel is going to be very narrow--and I encourage listeners to look at a map and look at where the West Bank is relative to Tel Aviv or Ben Gurion airport. Well, then we can strike back. It's hard to do it when it's a bunch of guerrilla terrorists blowing up a bus here and a cafe there, which is what the Intifada horrifically was. And so, we built a wall, which was horrible, but we had to here in Israel and we kept them out, and so if they continue to come over the wall, we'll just punish them because they'll have to take responsibility-- Eugene Kontorovich: We're going to shoot them as they come over the wall. Really? Russ Roberts: Yeah. Exactly. Eugene Kontorovich: I don't believe it. Russ Roberts: So, we live in a world now where Israel's attempt to respond to Hamas--which, as you point out, the whole idea of Gaza in 2005 was: Okay, you've got responsibility for it. Do what you will and if you are going to hurt us--which they did numerous times between 2006 when they, Hamas, won the elections, 2007 when they took authority. So, over the last 16 years, between that and October 7th, Hamas did lots of terror attacks across the border, but Israel struck back and punished him a little bit. But now when it's really horrible and Israel punishes them a lot, the world says, 'Oh, you can't do that. You're not allowed to defend yourself.' Eugene Kontorovich: It'll be much worse from the West Bank because the West Bank is such a sword at Israel's neck that if in the hills--you can see the West Bank hills from Ben Gurion Airport. When you get out, you look, you see hills; you can hit the airport with a mortar. Israel's margin of error is so small that if it were attacked from those places, it would have basically moments to respond with such absolute ferocity that the [? condemnation of?] international community would immediately require Israel to stop and accept an existence as some kind of Kurdistan--some kind of autonomous area within a Palestinian entity where the Jews will be able to live, have some autonomy, and not be ethnically cleansed too much or too often. Kind of like the Kurds in Kurdistan, just occasionally. That would be the outcome[?]. We can see, by the way, Lebanon. Because the threat from Hezbollah is so massive, much bigger than Hamas, because they have so many missiles because they're directly supplied by Iran, because they can reach all the way to central Israeli cities: the only military operation that could be had against Lebanon is going to have to be fast and intense. And, we know the international community is going to say stop before Hezbollah is defeated. How do we know? Because it already happened in 2016. That is to say we were not allowed to remove the threat to Israel just because it came from a sovereign country. So, that has been tested and disproven. But, you say that the dream of a Palestinian state has been taken away from Palestinians also--of a two-state solution. At a certain point, one has to take their actions as meaning something. I'm not sure that is in fact their dream. I know it's the dream of many in Israel. It's the dream of Israeli center-left and left. I don't know that it's a dream of so many Palestinians. I'm not sure. The massive polling support for Hamas suggests that it is not. That is to say, apparently polls of people in Gaza say--if you could, like, redo October 7th, should you redo it? They mostly support a redo. That is not a way to step towards a two-state solution. So, I think one of the bigger--and maybe we could say this in closing. People often like to ask, 'Well, what's the solution? What's the solution?' There's this idea that if you have a longstanding intractable problem between different ethnic religious groups, we're just one Middle East studies Ph.D. away from a--just one think tank report away from a solution. It's a problem. The problem has persisted because the solutions that outsiders think are so good--all the think tanks of Washington, D.C.--have been rejected by one or both of the parties. And, just to get back to the title of our podcast, EconTalk, there's an idea of revealed preferences. When you have the consumers--Israel and the Palestinians--choosing the status quo over actually attainable alternatives over and over, you might learn that the status quo is the best thing we can afford within the actual budget constraint. Rather than all these other exotic products being offered up by European and American leaders.
58:50	Russ Roberts: I'm going to give you one more challenge. I appreciate that perspective. That perspective sometimes is described--the security piece of that is 'mowing the lawn.' The grass gets too high; every once in a while you got to mow the lawn. So, the status quo: every once in a while, Hamas, Fatah, somebody does something horrible and you got to strike them down. You make them pay a price, and you just keep going. I think October 7th made that strategy a little bit untenable, but some could say, 'Well, it doesn't threaten our existence today.' But, I look at it as--partly, again, as a newcomer--I look at it and I say: Well, let's see. We've got Hamas; the world doing everything it can to keep Hamas in power at the end of this war. Right? Israel has two goals. Get the hostages back; get Hamas out of Gaza. The world is desperately pressuring Israel to give up--actually, both of them. The world doesn't seem to care--by 'the world,' I want to be careful. The leaders of the influential countries of the world, there are many individuals living around the world on the side of Israel. Eugene Kontorovich: Once they endorse a plan that does not distinguish between living and dead hostages, they have sealed the death warrants of all but a symbolic number of the hostages. Russ Roberts: Yeah. And so--but, that's the situation in Gaza. Then up north, like you say--listeners again should know that you devoted a phrase to it. Hezbollah, the militia operating in the southern part of Lebanon and the northern part of Israel since October 7th, has rained many, many rockets down in Israel requiring the evacuation of tens of thousands of citizens from the north. Those people's lives have been disrupted for eight months and counting. Basically, Israel has, as my colleague, Danny Gordis in his interview here said that territory is already lost to Hezbollah right now. We have to regain it, the opportunity for people to live there. But, the key point is that they have much bigger rockets and many, many more of them, and the ability to deliver those rockets more precisely. Hamas is an amateur operation relative to Hezbollah. We have the paymasters of Hamas and Hezbollah--Iran--who shot 350 missiles at us on a Saturday night a few--a month or so ago. Nobody died, and so the world said yeah, good job. Israel-- Eugene Kontorovich: I believe one girl died-- Russ Roberts: No, she didn't. She was injured. Unless she died since. It was a young Bedouin girl was injured and-- Eugene Kontorovich: Oh, yeah. She didn't die, right. Russ Roberts: Yeah. She went to the hospital. I think she's okay. So, the world looked at it and said, 'Well, nobody died. Almost no one's died from the rockets coming from Gaza. Very few have died'--as if that's somehow a scorecard of moral relevance from the Hezbollah rockets. So: 'Israel, just suck it up and take it.' And, I see our situation right now here--I've left out Egypt. Egypt, it looks like, has been cooperating with Hamas either through officially or through bribes to help convey weapons of destruction into Gaza through tunnels for Hamas to use. The horror of the Biden Administration that Israel might go into Rafah, I think was a fear that we would discover this relationship. And that would be very destabilizing, and I think it very well could be still for the world order. In many ways, we're on the verge of very serious international conflict that will go way beyond the borders of Israel and Gaza. So, we're under attack here in Israel from, you could say Egypt indirectly, certainly Gaza, certainly Lebanon and Hezbollah, certainly Iran a few miles farther. Eugene Kontorovich: Syria. Russ Roberts: Syria. There's the Houthis. We laugh at the Houthis because we can, but I don't know. It's not really a good thing. So, what's the long-term optimism for this very remarkable country called Israel? You don't like the two-state solution because it's not realistic. We've learned a lot about it. We should take that into account. Are we just going to be mowing the line here for the next few generations? Eugene Kontorovich: When I said status quo, I referred to the status quo in Judea and Samaria. 'Mowing the lawn' is a phrase that Israeli generals came up with after the withdrawal from Gaza in 2005, as soon as Israel withdrew from Gaza; and everyone said, 'If there's one more rocket, we're going to come, we're going to take--' No. It turns out you can't do that. Hamas immediately took power and began shooting rockets. And, Israel was not allowed by the international community to retaliate every time there's rockets, or even every time there's someone killed by rockets or Hamas terrorists. The idea is at a certain point every few years, you can come in and do a bigger operation and knock them back a little. And it turns out we were not knocking them back as much as it----so, that mowing the lawn is about Gaza, where Hamas had full control. So, Israel didn't have to mow the lawn in the West Bank and engage in such heists. Again, this thing, what people don't get when you when you compare the West Bank and Gaza, the level of hostilities is higher in the places that Israel leaves. Right? That is to say Israel is attacked more viciously when it gives up territory because the enemy forces can mount bigger attacks; and then Israel has to retaliate more strongly. Whereas, in the West Bank, Israel basically engaging in policing, counter-terror, internal security operations: much lower scale. You don't have to bomb anyone. So, the West Bank kind of model in which the IDF [Israel Defense Forces] has freedom of movement, but there's a Palestinian civil administration, that looks like actually it needs to be exported to Gaza. And we can go on a walk: that Gaza would be much safer both for Gazans and for Israelis if it worked more like the model that exists in the West Bank. As for the long term, I think the long term requires Israel to defeat its enemies. A lot of forces internationally want to hold it back and it's going to be up to Israel's leaders to decide whether they're going to listen or not. Russ Roberts: My guest today has been Eugene Kontorovich. Eugene, thanks for being part of EconTalk. Eugene Kontorovich: Hey, my pleasure, Russ.

Time

Podcast Episode Highlights

0:37

Intro. [Recording date: June 6, 2024.]

Russ Roberts: Today is June 6th, 2024, and my guest is Professor Eugene Kontorovich of the Scalia Law School at George Mason University. His specialties are Constitutional law and international law. Our topic for today is what is sometimes called the West Bank, sometimes called Judea and Samaria, and sometimes called the occupied territories, and sometimes called the Palestinian Territories. Eugene, welcome to EconTalk.

Eugene Kontorovich: Great to be with you Russ.

1:05

Russ Roberts: The area we're talking about, which I'm going to try to call by the somewhat-neutral name, the West Bank, was taken by Israel from Jordan in the Six-Day War in 1967. It is west of the Jordan River. It consists of towns where Arabs live, where Jews live. There are about 450,000 Jews in the West Bank. Another 250,000 live in what's called East Jerusalem, which is technically a separate area. And, there are about 2.7 million Arabs in the West Bank.

Now, many people describe Israel's role in the West Bank as an occupation--that Israel's towns and settlements violate international law. Let's start with that case. I know it's not your view, but for the people who consider Israel an occupying power, what is their argument?

Eugene Kontorovich: So, first I think, let's start even before anybody's argument and try to understand what an occupation is. Because an occupation is a term of art. That is to say, it's a technical legal term. It doesn't just mean a bad situation. It has a very specific meaning, and it is a term within a subset of international law called the international law of war, or international humanitarian law, as it's also known.

So, an occupation is a very particular situation that arises in an international armed conflict. That is to say, a conflict between two countries--that could not arise in a civil war, for example--in which one country takes over the territory of another country and then begins to actually administer it and sort of serve as the local government. That is to say, not simply holding it on the battlefield, but kind of replaces the prior government as the acting administrating power in that territory.

So, you need a war; you need two countries, an international war; and you need one country to come and replace another country.

One crucial point is not every time a country takes territory that is previously held by another country, in a war, would it be an occupation. That is not automatic.

So, let me give you some examples. Let's say Ukraine retakes Crimea. Even though it has been held by Russia for a very long time, we wouldn't say that's an occupation; and we can explain why.

nother example, in 1974, Morocco invaded and took over the West Bank--pardon--the Western Sahara. And, many, including many European countries don't refer to it as occupied. Rather they call it disputed territory or administered territory because it failed the two-country ingredient. That is to say, Western Sahara was not previously a country. It was a kind of abandoned Spanish colony. So, you don't have an international armed conflict, so it would not be occupied. So, there's some technicalities, and I think Western Sahara clearly illustrates that.

The basic argument of those who say that Israel is occupying the West Bank, which was laid out in position paper--a legal opinion--by Jimmy Carter's State Department Legal Adviser--a guy named Hansell--wrote a legal opinion in 1977, which sets the basic arguments for the case of occupation.

And, the argument goes like this. In 1967, Jordan held the territory, the West Bank. Israel took over the territory in 1967 and began functioning as the local government. Thus, occupation.

Now, that argument fails to address I think some obvious questions like Jordan was not the sovereign of that territory. That is to say--and we're going to go into this in a second--but, everybody agrees, or certainly the United States and Western European countries agree that Jordan itself was an occupying power in the West Bank. That was not Jordan's sovereign territory.

So, the argument--and I think here the argument does a bit of hand waving or skipping inconvenient wrinkles--they say, 'Well, it was Jordan's enough.' It was Jordan's enough. I don't know what that means exactly.

Now, crucially, even under the Herbert Hansell opinion, which was written in 1977, Israel would not be considered an occupying power today. Why? Because occupation can only exist in wartime.

So, when he wrote that opinion--there's actually a sentence in that opinion. It was written in 1977, so you could say things like this safely because you might've think they'd never happened. It said, of course, if Israel were to make peace with Jordan, then there'd be no state of war--if there was an actual peace treaty--and so there would be no occupation.

Now, of course, Israel did make peace with Jordan--unconditional peace--in 1994. That would make, under Herbert Hansell's own opinion, any state of occupation that did exist in 1967--which I think did not exist--but, even in that view, it would be hard to understand how it survives the peace treaty.

And, I'll give you plenty of examples of that. For example, America occupied Germany into the 1950s. Then it creates a new German government, makes peace with that new German government. And, the fact that there's hundreds of thousands and millions of American soldiers in West Germany, it doesn't make it an occupation.

Or take Afghanistan, which America invaded in 2001, 2002, when it set up an Afghan government in I believe 2003, and made a peace treaty with that government. The continued presence of American soldiers who were engaged in constant hostilities for many years, often against the declared desires of the Afghan government, was not an occupation because there was no war between America and Afghanistan.

So, I think they have a problem with the peace treaty and with Oslo.

7:42

Russ Roberts: So, let's go back and flesh out your argument about Jordan not being a sovereign power. It's fascinating. For people who don't know the history, I think there's still some issues to resolve, but it's an extraordinary reminder of how complicated the situation is.

We have to go back another 20 years to 1947, 1948. The UN [United Nations] in 1947 has a partition plan. It's a very strange partition, but--you look at it, it's quite bizarre. About 60% goes to Israel, is the proposal; 40% is going to go to the Palestinian people.

But of course, that 60% is misleading. A lot of the land that is that proposed State of Israel is desert. Nobody lives there. Most of the towns in the country and the Palestinian Mandate that had been run by Britain until then are going to fall into the Arab part. And, Jerusalem is going to be an international city. So, it's 60% Israeli, 40% this new Palestinian country that's going to be proposed. And, the city of Jerusalem will be international.

Israel accepts the plan with holding its nose, doesn't like it, but it's better than nothing. The Arab countries oppose the plan. Israel declares a state and the Arab countries surrounding Israel all invade. What happens next?

Eugene Kontorovich: Okay. So, first of all, the partition plan proposal by the General Assembly in 1947 is often a starting point for these discussions. And, again, I think as a lawyer, my first question is--what they teach you in law school is how to identify the legally relevant facts. There's always a lot of facts. Which facts are legally relevant?

So, for that partition proposal to be legally relevant it would have to be that the United Nations General Assembly is in the business of making countries and drawing their borders. In fact, it is not. It has never made a country and it has no authority to draw its borders because the United Nations General Assembly is a treaty organization. The only power it has is over its own budget, and all it can do is make recommendations.

Palestine: U.N. Partition Plan, 1947, showing the six disconnected triangles of land allocated. Source: Detail from https://maps.lib.utexas.edu/maps/historical/israel_hist_1973.jpg. Perry-Castañeda Library Map Collection, U. of Texas.

And, by the way, they knew that in 1947. If you read the resolution, it is worded as a recommendation to Britain, who was the League of Nations mandatory power; and Britain thought the recommendation was very unwieldy because you mentioned it was a strange map. It actually divides Mandatory Palestine--which was what the entity was then called--into six triangles, kind of. And, the Arabs get three, the Jews get three, and none of the triangles are actually adjacent. Jerusalem and the greater Jerusalem area, including much of Bethlehem, is an international city. Jaffa is a Palestinian enclave, which is now part of Tel Aviv, part of the Arab state. Even the British, which were not excited about a Jewish state, thought that this would be an unworkable solution.

The Jews accepted it because the other option that the UN was considering recommending was no Jewish state. So, the Jews celebrated because this was the less bad of two options in the diplomatic sphere. But it doesn't have any legal effect.

Now, when Israel declares a State, that is a legally important moment because of international law doctrine called uti possidetis juris. Now, this doctrine may sound obscure, but it is the doctrine in international law that is used to determine borders of new countries.

This is not controversial. You can look it up in an international law encyclopedia. From Africa to Asia, from the International Court of Justice to various arbitral tribunals, this is the rule that is used to determine new countries. And, I think it's actually interesting to think as an economist maybe to think why it is the rule. We can get to that in a second.

The rule is: when a new country is created--now, it doesn't say 'when' a new country is created. For a country to be created, it has to satisfy various objective conditions. One can have a big dispute about when those are satisfied. For example, there's such a dispute now about a Palestinian State. There's such a dispute now about a Somali State, Somali land state, and a Kurdish State. But, generally accepted that Israel met those criteria. It had a territory; it had a government in 1948.

How do you figure out the boundaries of a new country? And, the reason there's a rule for this in international law is it happens fairly often. So, just to give you an example, there was 50-some countries in the United Nations when it was created. Now there's 193, with maybe more to come.

So, let's take an example that is not as ideologically controversial, that is not in the newspapers all the time because I think it's easier for people to think calmly about things that they're not emotionally attached to. So take, for example, the former republics of the former Soviet Union [USSR]. Take the former Soviet Union. You had a country that was called the Soviet Union.

Now, when the Soviet Union disintegrated, various components of the Soviet Union declared independence. So, how do you figure out the borders of say, Ukraine? Azerbaijan? Armenia? All of whom had border disputes, with Russia primarily?

So, the rule is: When you have a new country emerge from the breakup of a prior country, secession, federal breakup, or even, like, divorce--like in the case of Czech Republic and Slovakia--the country's borders are the borders of the largest pre-existing administrative unit.

And, to put that just in very simple terms, in America, that would be a state. In Canada that would be--what are they called them? A commonwealth?

Russ Roberts: Provinces.

Eugene Kontorovich: Provinces. In Germany that would be a Länd[?]

And, in the Soviet Union--that would be the Soviet Socialist Republic--there were about 16 of them. They were the top level administrative units.

Now, what does that mean? What that means is you don't look at a bunch of other factors. History, demography, topography, fairness. Why? Because all of those factors are indetermined. Right? History: where do you go back to? Demography? Demographics never perfectly match political boundaries because groups kind of spill over into different places in different concentrations. Fairness? Who decides fairness?

What recommends this rule is it's one factor and very simple to administer. You just look.

Now, what this means is often it won't comport with notions of fairness or demographics because the previous top level administrative unit will often, typically have been drawn by a former colonial power, etc.

Nonetheless, this is the rule.

And let me give you some examples. Take Crimea for example--as Vladimir Putin did in 2014. The international community does not regard that as being rightfully Russia's.

Now, is it because of this concept we hear often by the Palestinians, self-determination? That the people of Crimea don't want to be part of Russia? No, the majority of them were ethnically Russian, and they probably did want to be part of Russia. Not 95% or whatever they had in the election that Putin held. That's just the only number that comes out of Russian ballot machines. But, a majority for sure. And, who knows what the right majority is.

Is it that it was colonial? That it was far away from Russia, like across the seas? No. It was in between Russia and Ukraine, kind of evenly; and Russia certainly has a superior historical claim.

What was the story? Crimea was part of the Russian Soviet Socialist Republic and had been part of the Russian Empire until the 1950s when Nikita Khrushchev, the Secretary General of the Communist Party, redrew the internal maps and gave Crimea to the Ukrainian Soviet Socialist Republic. Did he ask the people there? Was it fair? Was it just? No. Nonetheless, it was very clear that Crimea was in the Ukrainian Soviet Socialist Republic. And, thus it became, when part of the country Ukraine when Ukraine got independence, rather than the country of Russia.

And, when Russia objected to that, making basically what the Palestinians are making--an ethnic argument--that you should redraw this on ethnic lines, the international community rejected that argument.

And, surely if God were to smile upon the Ukrainians and they were to have some amazing, miraculous military success and retake Crimea from Russia--which doesn't seem in the cards now, just as it didn't seem in the cards for Israel for a while to retake the West Bank of Judea and Samaria--I don't believe anyone in the international community would deem Ukraine an occupier.

Let me restate this all very simply: You cannot occupy territory to which you have a legal claim.

Now, let's apply that rule, if we may, to the case of Israel in 1948, like you said. Israel declares independence. So, what are its borders? The borders of the last top level administrative unit. What is that? What was called Mandatory Palestine. And that was an entity created by the League of Nations. The League of Nations was, unlike the UN, given power to create mandatory territories out of former Ottoman and German Empire colonies, after the collapse of those empires. And, those were supposed to turn into new independent nation-states.

The boundaries--and Palestine did not mean Palestine in an Arab ethnic sense. It was a purely geographic name for this territory. And, what were the boundaries of that territory? It was what you would call between the river and the sea, or that is to say what we would now call Israel, Gaza, and Judaea and Samaria, as it was actually called by the United Nations at the time, or now what some people would call the West Bank. That was the boundaries.

Every other mandatory country--because Israel was not the only one: Lebanon, Syria, Jordan, places in Africa--inherited exactly the borders of the mandate as it stood at the moment of their independence.

So thus, Israel's borders at the moment of independence--which is when you apply this rule--would include Judaea and Samaria.

Now, Jordan immediately invades. The invasion was already underway in many ways before Israel declares independence. So, Jordan immediately invades. They make this blitz towards Tel Aviv. Egypt makes a dash along the coast towards Tel Aviv, and the goal of these invading armies--joined by other Arab countries--was to meet in the middle, Molotov-Ribbentrop, and divide the spoils of the country between them.

They partially failed: thus the creation of the state of Israel. Had they succeeded, there would be no state of Israel: No one would say, 'Oh, UN General Assembly resolution is being violated.' That would be it. All the Jews would have to be--would be ethnically cleansed.

But, they also partially did succeed. That is to say, Jordan managed to get a certain distance. Egypt got a certain distance. Why is the Gaza Strip known as the Gaza Strip? There's no natural eastern boundary of the strip. The Egyptian armored columns proceeded up against along the coast. They got a certain distance, they got pushed back a little bit, and that is where they stopped.

Similarly, Jordan went up to the hills of Samaria and Judaea and they were stopped there. That's why the so-called Armistice Line, which was made at the end of this war, runs through the middle of Jerusalem. That's not a natural boundary. That's simply where the Israeli army managed to stop the Jordanian army. So, the entire entity of the West Bank could be redefined. I think a simpler way to put it is the extent of success of Jordanian aggression and conquest in 1948 and 1949.

20:09

Russ Roberts: And therefore, your argument is going to be that when Israel in 1967 takes that land back, they're not occupying it. There are a large group of Palestinians that in a minute we'll talk about whether that's outside of the legal question--what does that lead to and how should we think about it?

But, I just want to stop for a second and make the side point--because it's surprising, I think, for people who are not aware of the history--that between 1948 and 1967, the Gaza Strip was administered by Egypt. They considered it part of Egypt. The world considered it part of Egypt. The West Bank was, quote, "Jordanian." The world did not agree with your assessment that that land should have been part of Israel. It was considered Jordanian until 1967 when Israel took it back--or took it, depending on your prejudices, interpretations, and so on.

In that time, there were a lot of Palestinians there in the West Bank and in Gaza. And, let's remind listeners where they came from. In 1948 when Israel declared itself a State right after the British gave up and said, 'We're done. We can't handle this idea of two States. No one seems to like it.' Israel said, 'Well, we like it. We're declaring a State.'

And, the Arab neighbors said, 'We don't like it. We're going to conquer you.' And as you said, Eugene, they were going to divvy it up. They were not going to create a Palestinian State.

And, when that war broke out, Arab residents of what we would call in 1967--the borders of Israel that many people grew up with, Arabs, some stayed and became Israeli citizens. There's two million of them. They have complete rights in the modern State of Israel. They go to college, they vote. They don't have to serve in the army if they don't want to. Some do, though. They get healthcare. They get all the benefits and blessings and curses of being an Israeli citizen.

So, some stayed. Some fled for their lives, either because the Israeli army was advancing and they were afraid, or because they were told that it was only going to take a little bit of time: the Arab armies would defeat the Zionist entity, and you'll be able to go back to your homes.

But, my point is, is that those who fled, whether they were pushed out by Israeli military force or they fled out of fear of what was going to happen or because they were encouraged to, many of them settled in the West Bank and in Gaza. And, in the period between 1948-1967 when those areas and those Palestinians were living under the sovereignty of Jordan on the West Bank and Gaza Strip under Egyptian sovereignty, no one said they deserved to stay. At least I don't remember that. Tell me if I'm wrong.

Eugene Kontorovich: Yeah. You're mostly right. I just want to quibble with a technical part of the characterization.

Certainly, when Gaza was administered by Egypt and West Bank was administered by Jordan, nobody was saying that they were, a). one entity. That was a claim nobody made, that there was any connection between these two territorial entities separated by the State of Israel in between. Or, that they should be one state or two states.

I would say that there was some difference in the treatment. Egypt never annexed Gaza. Egypt did not. As is the case today, even in 1948 no one really wanted Gaza, and Egypt does not want to incorporate Gaza into Egypt. They administered it under military rule.

Jordan, in 1950, did claim to annex the West Bank, and that's where the name the West Bank comes from. Jordan named it the West Bank, that is to say the part of Jordan that is west of the Jordan [the Jordan River--Econlib Ed.]; because the rest of Jordan has traditionally been known as Transjordan--i.e., on the other side of the Jordan. So, it's the West Bank in relation to Jordan. That's a Jordanian name. So, they claimed to annex it. They gave them citizenship. They incorporated.

Only one or two countries in the world recognized the legitimacy of that annexation. That's an important point.

So, when you say countries treated it as Jordan's, I completely agree: They didn't hassle Jordan about it. They weren't, like, 'What are you doing in the West Bank? Give it up.' They completely went along with the Jordanian annexation. But, they made a point to not legally acknowledge it. Much like Turkey is not being really hassled over Northern Cyprus or Morocco is not being hassled extensively over Western Sahara, but they didn't give it a legal status.

So, yeah, the idea of Palestinian statehood is not really about the Palestinians being occupied--because they were certainly occupied--everybody agrees--from 1948 to 1967 by Jordan and Egypt, respectively. But, that was not thought to warrant a Palestinian state.

25:10

Russ Roberts: And now let's move to a much--I hope we don't have too much nuance for our listeners so far. It's going to get a little bit more complicated.

So, I take your point that the legal definition of occupation is hard to apply to Israel, say, over the West Bank either because Jordan really didn't have it--you could have argued it was Israel's between 1948 and 1967--or, because Jordan and Israel are now at peace, so who is being occupied? Not Jordanian territory: Only some idea of a potential Palestinian State would have to be the claim.

It's not really a legal claim. It's an emotional or moral claim. Which I don't deny: it's an interesting, important thing to consider and take seriously.

So, I want to turn to that moral issue. And, I think when critics of Israel today refer to Israel as an occupying state or refer to Israel as an apartheid state, they are talking about the way the Israeli government treats the Arab, Palestinian residents of the West Bank.

So, let's move to that. And, to understand that which is unbelievably complicated--we will not be able to do justice to it in detail because you need a map and then you need some, too many footnotes.

*Oslo Agreement: Map of West Bank showing areas A (tan) and B (pink). Area C is everything else. Red line is planned barrier wall as of 2005. Source: Wikimedia. Adaptation from public domain UN source.*

But, what I want to make listeners aware of is that this area called the West Bank is not a monolith. It has this crazy division that comes from the Oslo Accords of 1993. It has this crazy division between areas A, B, and C.

In addition, they're not really areas. It's a bad word. Areas, to me means a geographic contiguous thing, like The West in the United States. That's an area. It's the area: You could debate where it is. Is it west of the Rockies? Is it west of the Mississippi River? But, the West is--you wouldn't want to say there's some East inside the West. That's silly.

But areas A, B, and C are like that. So, areas A, B, and C, even though they are called areas, a better way, I would say, to describe it, is there are three different legal regimes under which people in the West Bank live: A, B, and C. Let's try to let listeners understand the differences between areas A, B, and C.

Eugene Kontorovich: Let's explain what the Oslo Accords was about. Israel never wanted to rule over the Palestinian population. That is to say the characterization of apartheid--by the way, say technically, if you read the reports by anti-Israel groups like Amnesty International and Human Rights Watch accusing Israel of apartheid, they by no means limit their accusation to the West Bank. And, they say that Israeli policies inside the green line also constitute apartheid.

Russ Roberts: The green line. The green line being the border of Israel.

Eugene Kontorovich: [inaudible 00:28:09]. The 1949 Armistice.

Russ Roberts: Yeah. Sorry.

Eugene Kontorovich: So, the Oslo Accords was a treaty--an international agreement--entered into between Israel and the Palestinian Liberation Organization [PLO], which was acknowledged to be the representative of the Palestinian people in international affairs. And, it was designed to create maximum self-government or extensive self-government for the Palestinians.

And, it did so by basically dividing the area based on where people live and certain other considerations. But, 90%, let's say, of Palestinians live in area A and B. Area A and B are under exclusive civil jurisdiction of the Palestinian Authority. That means they make the laws, they enforce the laws, etc. Area A--

Russ Roberts: Before--carry on. It's important to make clear what you mean by that. They make the laws, they enforce the laws, they run their own schools, they have their own social services.

Eugene Kontorovich: Taxes, budgets.

Russ Roberts: They're not taxed by Israel. They're not--

Eugene Kontorovich: Actually Palestinians know even in area C, are not taxed by Israel. So, the American motto, taxation without representation: South Africa did tax blacks. They conscripted them. They made them work at various jobs. Israel has no [?] sort of control over the lives of the Palestinians. They're governed by the Palestinian Authority in essentially all respects.

And, I'm going to explain the respects in which they're not in one sec.

So, in area A, the Palestinians also have security control. That is to say it's the Palestinian police and paramilitaries which run the show. In area C, that is where all of the Israeli communities, called settlements by some people, are.

Russ Roberts: The Jews.

Eugene Kontorovich: Yeah. The Jewish communities. And, in that area, Israel has civil control and military control. And, it also has military control in the middle and the sea in area B.

But the point is, since Oslo, that's how the Palestinian Authority got countries to recognize them as a State. They say, 'Look, in many ways we function as a state. We administer this government, we have a budget, we have a pension system, we have civil servants. Israel doesn't tell us what to do.'

That is to say--I think the clearest proof that Israel doesn't tell them what to do is they have this law called 'pay for slay,' where they take 7% of their total budget and give it to what they call a Martyr's Fund. That is to say, payments for people who are in Israeli prison for terrorist activities or payments to their families if they died in a terrorist attack. So, Israel did not authorize that. That's for sure. And, the kind of anti-Semitic content taught in their schools, that's not a Ministry of Education, Israeli Ministry of Education curriculum that they're teaching.

However, Israel does retain security control. And, many of the things that people find objectionable such as inspections, military raids are a result of that security control.

But I think the key point to emphasize is: this is not a situation that Israel desired. When Israel took over in 1967, there were no checkpoints. People could go from Ramallah and drive straight to the beach in Tel Aviv. Rather, it was an organized campaign of terror called the First Intifada, followed by a much worse organized campaign of terror called the Second Intifada, that gave rise to these security measures.

But, security measures do not create an occupation. An occupation is when you're actually running the government, not when you're trying to defend yourself.

The UN Charter, Article 51, says every country has an inherent right to self-defense. That is, imagine if Israel said, 'You, Palestinians, can have a state in the West Bank,' and Israel continued to be attacked from the West Bank. Israel would still be there with military forces and security, as we can see in Gaza: that Israel was attacked from Gaza, so now Israel is conducting security operations in Gaza.

America, for example, for many decades was threatened by terrorists from Afghanistan and Pakistan. America routinely conducted military operations--against the will of those countries--to secure itself. So, Israel's only interest is security; and that interest is a valid interest whether or not there is a state there to defend Israel's population.

And, I think it's quite clear that if there were no terror actions, there would not be these security measures because that in fact had been the case.

32:56

Russ Roberts: I want to add two things.

First, of course, Israel withdrew from Gaza in 2005; and not just withdrew its army, which was in the streets of Gaza, but withdrew all of its communities--the communities, the Jewish communities that were part of Gaza. They took cemeteries and relocated them. And, for reasons that I don't really understand, it's deeply troubling. It's considered okay that of course no Jews can live in Gaza once Israel leaves--because they'll be killed.

And similarly in areas A and B in the West Bank, the towns in those areas--and again, it's not so much the towns in the areas--they are Arab towns that are called therefore either Area A or Area B. There are no Jews there. It's not like, oh, they're a minority or they live--there are no Jews. There are Arabs in Area C. And of course, there are Arabs in the State of Israel narrowly defined.

It's a weird double standard that for some reason it's okay for Arab nations to not want to be with Jews, but Jews are not allowed to live without Arabs. And we don't want to, by the way. It's not like a goal. But it's a de facto situation here in the Middle East that I find disturbing.

Eugene Kontorovich: I think it's a very important point. And, by the way, I just want to point out how I've studied this empirically. It's an empirically unusual situation.

First of all, to those who would say that Israelis are terrorizing Arabs, I think the very situation that you can find a Jewish settlement full of these supposedly scary settlers with an Arab village right next door, and the Arab village doesn't have a gate, it doesn't have a fence. They're chilling. But, you will not find, like, an Arab city with an unfenced Jewish village next to it anywhere in the West Bank because the balance of terror, I think it clearly falls one way.

But, I've actually done an empirical study of this question.

The point you make is very important because it's one of the obstacles to the two-state solution. The Palestinian President Abbas has repeatedly said one of his conditions for independence is not just self-determination, a country. It is a country that begins free of Jews.

So, I looked and I did a study of peoples who are seeking self-determination or an end to an occupation. Do they require the expulsion--complete expulsion--of whoever they have a problem with?

So, for example, East Timor was occupied by Indonesia. There were many Indonesian settlers there. The East Timorese did not demand the Indonesian settlers leave. Cambodia and Vietnam.

The issue actually arose in the negotiations of a North Cyprus. The Cypriots said they want the Turkish settlers out. Turkey said that's unreasonable, and the mediators actually sided with that. So, you don't have any mediated agreement to end such a conflict that has ever demanded the removal of the minority population.

Russ Roberts: It's awkward to base a new country on ethnic cleansing.

35:58

Russ Roberts: But, the point I want to challenge is that: It's true that there's a strong degree of self-determination in Areas A and B run by the Palestinian Authority. And, they don't run it particularly well, and they're corrupt, and it's depressing. I have a tremendous amount of empathy for everyday Palestinians in either the West Bank or Gaza before October 7th, because I don't think they have a very pleasant life. And, part of that unpleasantness is due to the leaders that they have either chosen in the case of Gaza, and in the case of the West Bank. But, the choices aren't great.

Eugene Kontorovich: And, they don't get to make them so often.

Russ Roberts: It's a one-time thing, tragically. They don't get regular elections.

But having said that, there is a great deal--the critics of Israel would say there's a great deal of humiliation of the West Bank population in how Israel and its military operate there. So--they also said the same thing about Gaza, by the way: that it's an open air prison and that the blockades are what caused it to be so horrible--Israel, because it was worried about weapons coming in.

Now we know actually lots of Gaza was really nice. A lot of the reason it was a very bad place to live is because all of the international aid that went to Gaza was used to build some spectacular tunnels that we've found now in this war. Unbearably sad, both for the citizens of Gaza--who are not sympathetic to Hamas--and for Israel, which is having to deal with it.

But, my point is, is that: if we go back to the West Bank, checkpoints are humiliating, if you want to come into Israel to work. The ability of the Israeli army to operate in cities, in areas like Jenin or Ramallah with impunity: critics allege that soldiers brutalize the population without any recourse. That Israeli soldiers who were abusive or worse to the local population really don't get any punishment.

And then, worst of all the claim is, is that: because the Palestinian Authority only has a police force, not an army, Palestinians who are arrested by Israel can be held in what's called Administrative Detention without any trial--without any charges against them. And that hundreds, maybe thousands, are in that situation. And that gives Hamas the opportunity to say, 'Yeah, we want to exchange hostages for your hostages, the people who are sitting in prison that you've imprisoned without any charges.'

And then, lastly, I'll just add: it's true, there aren't a lot of fences around those Arab villages, but it's horrific to me that Jewish settlers in the West Bank do terrorize now and then Arab villagers, who, many of whom are just trying to lead their lives.

So, that's I think the question that defenders of Israel have to answer in this current status quo in the West Bank.

Eugene Kontorovich: So, clearly Israel should do everything consistent with its security to make life pleasant for the Palestinians. Clearly also, the Palestinians have a tactic--which we see on steroids in Gaza and to a lesser extent in the West Bank--of doing things to Israel that will require Israel to make life unpleasant for the Palestinians.

So, as I mentioned, the checkpoints are not Israel's original policy. Israel didn't say, 'Great. We're going to set up checkpoints.' That was a response to terrorism.

Now, as for checkpoints going into Israel--and the Palestinians are not citizens of Israel. They have their own government. It is reasonable to subject people at a crossing or not citizens to inspection because they don't have a right to work in Israel.

I can tell you the checkpoint doesn't work at all the other way. That is to say, if you're an Israeli citizen and you want to come into the Palestinian territory, the checkpoint is just basically going to be a lynching.

So--but it's true: the Palestinians engage in provocations to make these inspections more humiliating.

For example, there was a famous case--it was a particularly a horrible case--of a woman. She had some horrible--she had some leg problem. She was in a wheelchair. She had some very bad problem, and she was being treated in an Israeli hospital. So, she would come from Gaza to Israeli hospital. She would go through checkpoints. And, they put a bomb in her wheelchair, basically--which was discovered. But, now Israel has to check everybody in a wheelchair. Which must be horrible for those people. But, on the other hand, how can you not?

So, when you send women with bombs--when you send women as suicide bombers--it makes it, Israel, impossible for Israel not to check them.

Operating in Palestinian towns: I don't think that's a particularly serious objection because Israel is operating to disarm terrorist groups. There's terrorist groups in Palestinian towns now who are shooting into Israel across the green line, who are engaging in constant terror attacks. And, even if they were a separate country, that would be something that Israel would do--just again, as America would do such a a thing in Afghanistan which isn't shooting daily into America or launching daily attacks into America.

But certainly Israel should try to make these burdens lighter. And, of course, every time it does--right?--these burdens, they go up and down. Right? Sometimes there's almost no checkpoints, sometimes--and then Palestinians will try to launch an attack to get Israel to crack down. Now--but clearly the Army should try to respect people, and clearly the Palestinians have an interest in creating provocations.

Now, settler violence has become a bit of a buzzword, and I think that is a conscious political effort. That is to say: For sure, I clearly condemn any violence, any unprovoked violence.

Russ Roberts: Vigilante. Vigilante or worse terrorism.

Eugene Kontorovich: That's a good word. Hooliganism. Whatever. The whole range.

But, the extent to which this exists is, you know, I think highly debatable. Where do our data? So, the United States State Department speaks a lot about settler violence and is constantly speaking about settler violence has now recently implemented sanctions as a response to settler violence.

Much of the information comes from the UN. The UN, of course, is biased against Israel; I think needs no elaboration. Where does the UN get it from? The UN does not have its own investigative team. They get it from a series of European-funded anti-Israel NGOs [Non-profit organizations], which uncritically report any data given by given by Palestinians. And, what they basically do is: any Palestinian that is injured under any circumstances in the West Bank is chalked up as settler violence. Whether or not it is actually--

For example, let me just give an example. I just took a look at some of this data.

The UN alleges that seven Palestinians were murdered by extremist settlers in 2023 before October 7th. Among these victims of settler violence was someone who was shot by the army while trying to infiltrate Israeli settlement, armed with a knife and explosives. Another one who was shot dead by a civilian after breaking in their farm, trying to stab them. Another who was shot dead after firing and killing four Israeli civilians, including two children, outside of a hummus restaurant in the Israeli settlement of Eli.

All of those show up in the Israeli settlement violence data. So, because this data does not distinguish from self-defense, clear self-defense, etc., it's, I think, worthless.

Now, I'm not saying there's no issue. But certainly the reported data give you no sense of its magnitude. Indeed, the Israeli, Chief of Israeli Police, which tries to crack down on this, says that actually the amount of such violence has decreased 50% over the last year as a result of heightened police enforcement.

By the way, when Israeli settlers are arrested for such things, they are also placed in Administrative Detention. That is to say: Administrative Detention is a term that sounds shocking to Americans because we don't have it, but it exists in civil law systems. They have it in France where a judge can basically authorize you to be held without a grand jury indictment. So, that goes both ways, the authorization for such Administrative Detentions.

I do want to correct one thing. When Hamas is seeking to liberate its prisoners of war, its captives, it's not people in Administrative Detention. Administrative Detention is usually months or a year at most, pending a decision whether to try someone. The people who they are seeking to convict or release are principally convicted terrorists, including those who have been convicted by serious crimes in a variety of courts. So, certainly settler violence should be condemned. I think there have been 14 or 17 Israelis killed in the West Bank by Palestinians in the same time, in clear acts of terror. But, certainly such acts of hooliganism and vigilantism should be punished.

45:53

Russ Roberts: This question kind of answers itself, but I think it has to be asked. Some of my Israeli friends suggest that what we need to do in the West Bank is just separate.

Some people want the West Bank to be annexed--for Israel to publicly and administratively make the claim that this is Israeli land. That would lead to a huge question of voting rights for the Arab citizens who live there. Then you really could have an apartheid state if Israel annexed the West Bank and did not give democratic rights to the Arabs there.

But, you wouldn't have to annex the whole thing--could annex a small piece and then just say to the rest, it's yours. Run your own country. Not just the way we've been talking about it with the Palestinian Authority, where in these certain towns and cities, the Palestinian Authority has authority. Rather this area--really, an actual area--you take it, you're responsible for it, and the rest we're going to take, and for the settlements in towns that are Jewish within that area, we would remove them or ask those people to leave or compensate them in various ways; and we try to move forward. Give the Palestinians some self-determination of a bigger kind than they have now. Give them contiguous areas that would allow them to have a feeling they were part of a nation. What's wrong with that?

Eugene Kontorovich: We've tried it already.

Russ Roberts: We to try it, but it doesn't seem to work. So, why do you mean we tried already?

Eugene Kontorovich: I'll mention a few things. First of all, this is exactly what we did in Gaza. In Gaza, we didn't just give them some contiguous territory. We gave them all of Gaza, which is not a place that is so small that it could not be a country or it could not be governable. It has a coast, it has a border with Egypt--a supposedly friendly Arab country. It was not particularly poor. Its economy had greatly improved under Israeli control. So, we left Gaza completely, and now even no Jews live in Gaza. They govern their own affairs. And the only Jews in Gaza now are hostages in tunnels. So, we left Gaza and they brought us back.

We left Lebanon where we had a security zone. Again, the security zone in Lebanon, which ended in 2000, was created because of constant attacks across the Lebanese border. So, Israel said, 'We're going to have to create the zone where Hezbollah cannot operate, where Palestinian terrorist groups cannot operate.'

Everyone said, 'Oh, now that's the reason they're attacking you is because of the zone that you created to prevent the previous attacks.' So, Israel fell for that argument, left; and now it's being attacked right from the border, and Israelis are in mortal fear because Hezbollah has a plan of invading and storming across the border and overrunning cities and taking hostages and having this entire crisis again of October 7th, but a thousand times worse because now they're right up to the border.

I said on Twitter today, if only Israel would give Lebanon their own independent state, we could all live together in peace. Of course, it's a joke. Lebanon has an independent state. They've had an independent state since before Israel, but they don't seem to want to live together in peace.

It's quite clear that the Palestinians wouldn't take what you're offering because it has been proposed on at least four occasions in internationally approved peace deals. The Palestinians don't want their own state. They want all of the territory that they claim, and they also want a connection between Gaza and the West Bank, which then separates Israel and makes Israel completely vulnerable.

I wrote an article a few years ago in the Wall Street Journal, readers could look up: Take the Palestinian 'No' for an answer. That is: they have been offered this, and they keep saying no. At a certain point, nos have to have consequences. That is to say: if the PLO is the representative of the Palestinians, then their decision creates consequences for the Palestinians.

But also, having a country is very different from having autonomy in the following ways. If the Palestinians had a country, there would be very little about daily life that would change for Palestinians: there are very little that they could do that they could not now do because of Israel.

But, what they could do is buy military equipment that only countries are allowed to buy. Fighter planes, tanks, artillery. And, when we see Palestinians, how they can attack Israel with stuff that they smuggle in, in tunnels, and rockets that they smuggle in in tunnels, imagine what would happen.

Everyone wants to hope--let's say it goes well. The idea of the two-state solution is: let's just hope it goes well, okay. But, it needs to confront this problem, what if it doesn't go well? What if there's an October 7th attack with Israel having narrow pre-1967 borders, eight miles across, and the Palestinians turn on their artillery in South Tel Aviv and Ben-Gurion airport. Then, for sure it's the end of Israel. And there's every reason to think that would happen because it has happened over and over again. Every area Israel has given up has been a base for attack against the rest of it--

Russ Roberts: Two other tragedies I want to mention if I can remember both--

Eugene Kontorovich: Other than that, it sounds okay.

Russ Roberts: Yeah.

51:46

Russ Roberts: Well, one of the worst, most wrenching aspects--there's so many--of October 7th, is that many of the people who were kidnapped, murdered, burned alive, raped were people who wanted a coexistence with the people of Gaza. They were part of groups, idealistic, wonderfully, ideally wonderful groups that worked to create connections between Gaza and Israel that helped people in Gaza get to Israeli hospitals when there was not treatment available in Gaza.

And slowly, slowly, I've only lived here three years, but I've absorbed a lot of lessons from my neighbors here that the dream of a Palestinian state or a two-state solution gets taken away, not just from the Palestinians, but from us, the Jewish Israelis--who I think most of us would just like to live side by side in peace and make a better world for our children and grandchildren. Certainly that was the goal of those people living in the what's called the Gaza envelope, the communities near Gaza on October 7th.

And, the other tragedy that comes to mind is that those among us in our country of Israel here who favor conceding and trying out coexistence more radically with Palestinians in some form of authority, one of their arguments is: Well, after we separate, if we create a border and we give the Palestinians and the West Bank autonomy and we give them responsibility, and they're a country now. They're not just a set of cities ringing around each other and different complications with the Israeli presence. They have their own country. And that way--they take responsibility--in that way, if they violate--if they do what you suggested they might, that they stockpile military weapons and take advantage of the fact that Israel is going to be very narrow--and I encourage listeners to look at a map and look at where the West Bank is relative to Tel Aviv or Ben Gurion airport. Well, then we can strike back. It's hard to do it when it's a bunch of guerrilla terrorists blowing up a bus here and a cafe there, which is what the Intifada horrifically was. And so, we built a wall, which was horrible, but we had to here in Israel and we kept them out, and so if they continue to come over the wall, we'll just punish them because they'll have to take responsibility--

Eugene Kontorovich: We're going to shoot them as they come over the wall. Really?

Russ Roberts: Yeah. Exactly.

Eugene Kontorovich: I don't believe it.

Russ Roberts: So, we live in a world now where Israel's attempt to respond to Hamas--which, as you point out, the whole idea of Gaza in 2005 was: Okay, you've got responsibility for it. Do what you will and if you are going to hurt us--which they did numerous times between 2006 when they, Hamas, won the elections, 2007 when they took authority. So, over the last 16 years, between that and October 7th, Hamas did lots of terror attacks across the border, but Israel struck back and punished him a little bit. But now when it's really horrible and Israel punishes them a lot, the world says, 'Oh, you can't do that. You're not allowed to defend yourself.'

Eugene Kontorovich: It'll be much worse from the West Bank because the West Bank is such a sword at Israel's neck that if in the hills--you can see the West Bank hills from Ben Gurion Airport. When you get out, you look, you see hills; you can hit the airport with a mortar. Israel's margin of error is so small that if it were attacked from those places, it would have basically moments to respond with such absolute ferocity that the [? condemnation of?] international community would immediately require Israel to stop and accept an existence as some kind of Kurdistan--some kind of autonomous area within a Palestinian entity where the Jews will be able to live, have some autonomy, and not be ethnically cleansed too much or too often. Kind of like the Kurds in Kurdistan, just occasionally. That would be the outcome[?].

We can see, by the way, Lebanon. Because the threat from Hezbollah is so massive, much bigger than Hamas, because they have so many missiles because they're directly supplied by Iran, because they can reach all the way to central Israeli cities: the only military operation that could be had against Lebanon is going to have to be fast and intense. And, we know the international community is going to say stop before Hezbollah is defeated. How do we know? Because it already happened in 2016.

That is to say we were not allowed to remove the threat to Israel just because it came from a sovereign country. So, that has been tested and disproven.

But, you say that the dream of a Palestinian state has been taken away from Palestinians also--of a two-state solution. At a certain point, one has to take their actions as meaning something. I'm not sure that is in fact their dream. I know it's the dream of many in Israel. It's the dream of Israeli center-left and left. I don't know that it's a dream of so many Palestinians. I'm not sure.

The massive polling support for Hamas suggests that it is not. That is to say, apparently polls of people in Gaza say--if you could, like, redo October 7th, should you redo it? They mostly support a redo. That is not a way to step towards a two-state solution.

So, I think one of the bigger--and maybe we could say this in closing. People often like to ask, 'Well, what's the solution? What's the solution?' There's this idea that if you have a longstanding intractable problem between different ethnic religious groups, we're just one Middle East studies Ph.D. away from a--just one think tank report away from a solution.

It's a problem. The problem has persisted because the solutions that outsiders think are so good--all the think tanks of Washington, D.C.--have been rejected by one or both of the parties. And, just to get back to the title of our podcast, EconTalk, there's an idea of revealed preferences. When you have the consumers--Israel and the Palestinians--choosing the status quo over actually attainable alternatives over and over, you might learn that the status quo is the best thing we can afford within the actual budget constraint. Rather than all these other exotic products being offered up by European and American leaders.

58:50

Russ Roberts: I'm going to give you one more challenge.

I appreciate that perspective. That perspective sometimes is described--the security piece of that is 'mowing the lawn.' The grass gets too high; every once in a while you got to mow the lawn. So, the status quo: every once in a while, Hamas, Fatah, somebody does something horrible and you got to strike them down. You make them pay a price, and you just keep going.

I think October 7th made that strategy a little bit untenable, but some could say, 'Well, it doesn't threaten our existence today.' But, I look at it as--partly, again, as a newcomer--I look at it and I say: Well, let's see. We've got Hamas; the world doing everything it can to keep Hamas in power at the end of this war. Right? Israel has two goals. Get the hostages back; get Hamas out of Gaza. The world is desperately pressuring Israel to give up--actually, both of them. The world doesn't seem to care--by 'the world,' I want to be careful. The leaders of the influential countries of the world, there are many individuals living around the world on the side of Israel.

Eugene Kontorovich: Once they endorse a plan that does not distinguish between living and dead hostages, they have sealed the death warrants of all but a symbolic number of the hostages.

Russ Roberts: Yeah. And so--but, that's the situation in Gaza.

Then up north, like you say--listeners again should know that you devoted a phrase to it. Hezbollah, the militia operating in the southern part of Lebanon and the northern part of Israel since October 7th, has rained many, many rockets down in Israel requiring the evacuation of tens of thousands of citizens from the north. Those people's lives have been disrupted for eight months and counting. Basically, Israel has, as my colleague, Danny Gordis in his interview here said that territory is already lost to Hezbollah right now. We have to regain it, the opportunity for people to live there.

But, the key point is that they have much bigger rockets and many, many more of them, and the ability to deliver those rockets more precisely. Hamas is an amateur operation relative to Hezbollah. We have the paymasters of Hamas and Hezbollah--Iran--who shot 350 missiles at us on a Saturday night a few--a month or so ago. Nobody died, and so the world said yeah, good job. Israel--

Eugene Kontorovich: I believe one girl died--

Russ Roberts: No, she didn't. She was injured. Unless she died since. It was a young Bedouin girl was injured and--

Eugene Kontorovich: Oh, yeah. She didn't die, right.

Russ Roberts: Yeah. She went to the hospital. I think she's okay.

So, the world looked at it and said, 'Well, nobody died. Almost no one's died from the rockets coming from Gaza. Very few have died'--as if that's somehow a scorecard of moral relevance from the Hezbollah rockets. So: 'Israel, just suck it up and take it.'

And, I see our situation right now here--I've left out Egypt. Egypt, it looks like, has been cooperating with Hamas either through officially or through bribes to help convey weapons of destruction into Gaza through tunnels for Hamas to use.

The horror of the Biden Administration that Israel might go into Rafah, I think was a fear that we would discover this relationship. And that would be very destabilizing, and I think it very well could be still for the world order.

In many ways, we're on the verge of very serious international conflict that will go way beyond the borders of Israel and Gaza.

So, we're under attack here in Israel from, you could say Egypt indirectly, certainly Gaza, certainly Lebanon and Hezbollah, certainly Iran a few miles farther.

Eugene Kontorovich: Syria.

Russ Roberts: Syria. There's the Houthis. We laugh at the Houthis because we can, but I don't know. It's not really a good thing.

So, what's the long-term optimism for this very remarkable country called Israel? You don't like the two-state solution because it's not realistic. We've learned a lot about it. We should take that into account. Are we just going to be mowing the line here for the next few generations?

Eugene Kontorovich: When I said status quo, I referred to the status quo in Judea and Samaria. 'Mowing the lawn' is a phrase that Israeli generals came up with after the withdrawal from Gaza in 2005, as soon as Israel withdrew from Gaza; and everyone said, 'If there's one more rocket, we're going to come, we're going to take--' No. It turns out you can't do that. Hamas immediately took power and began shooting rockets. And, Israel was not allowed by the international community to retaliate every time there's rockets, or even every time there's someone killed by rockets or Hamas terrorists. The idea is at a certain point every few years, you can come in and do a bigger operation and knock them back a little.

And it turns out we were not knocking them back as much as it----so, that mowing the lawn is about Gaza, where Hamas had full control. So, Israel didn't have to mow the lawn in the West Bank and engage in such heists.

Again, this thing, what people don't get when you when you compare the West Bank and Gaza, the level of hostilities is higher in the places that Israel leaves. Right? That is to say Israel is attacked more viciously when it gives up territory because the enemy forces can mount bigger attacks; and then Israel has to retaliate more strongly.

Whereas, in the West Bank, Israel basically engaging in policing, counter-terror, internal security operations: much lower scale. You don't have to bomb anyone.

So, the West Bank kind of model in which the IDF [Israel Defense Forces] has freedom of movement, but there's a Palestinian civil administration, that looks like actually it needs to be exported to Gaza. And we can go on a walk: that Gaza would be much safer both for Gazans and for Israelis if it worked more like the model that exists in the West Bank.

As for the long term, I think the long term requires Israel to defeat its enemies. A lot of forces internationally want to hold it back and it's going to be up to Israel's leaders to decide whether they're going to listen or not.

Russ Roberts: My guest today has been Eugene Kontorovich. Eugene, thanks for being part of EconTalk.

Eugene Kontorovich: Hey, my pleasure, Russ.

Is Israel Occupying the West Bank? (with Eugene Kontorovich)

Daniel Gordis on Israel and Impossible Takes Longer

An Extraordinary Introduction to the Birth of Israel and the Arab-Israeli Conflict (with Haviv Rettig Gur)

READER COMMENTS

Thomas L. Knapp

Jul 1 2024 at 8:11am

Michael Berkowitz

Jul 2 2024 at 3:02am

TK

Jul 2 2024 at 2:15pm

Shalom Freedman

Jul 1 2024 at 10:49am

Daniel Hill

Jul 2 2024 at 1:35am

Michael Berkowtiz

Jul 2 2024 at 3:01am

Duncan

Jul 1 2024 at 2:54pm

Roger McKinney

Jul 1 2024 at 5:04pm

Daniel Hill

Jul 2 2024 at 1:33am

Ondřej Kubů

Jul 2 2024 at 12:32am

Ron Spinner

Jul 2 2024 at 2:52am

Alan

Jul 2 2024 at 5:45am

Ari

Jul 2 2024 at 12:28pm

LEAVE A COMMENT

Is Israel Occupying the West Bank? (with Eugene Kontorovich)

Daniel Gordis on Israel and Impossible Takes Longer

An Extraordinary Introduction to the Birth of Israel and the Arab-Israeli Conflict (with Haviv Rettig Gur)

READER COMMENTS

Thomas L. Knapp

Jul 1 2024 at 8:11am

Michael Berkowitz

Jul 2 2024 at 3:02am

TK

Jul 2 2024 at 2:15pm

Shalom Freedman

Jul 1 2024 at 10:49am

Daniel Hill

Jul 2 2024 at 1:35am

Michael Berkowtiz

Jul 2 2024 at 3:01am

Duncan

Jul 1 2024 at 2:54pm

Roger McKinney

Jul 1 2024 at 5:04pm

Daniel Hill

Jul 2 2024 at 1:33am

Ondřej Kubů

Jul 2 2024 at 12:32am

Ron Spinner

Jul 2 2024 at 2:52am

Alan

Jul 2 2024 at 5:45am

Ari

Jul 2 2024 at 12:28pm

LEAVE A COMMENT

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