Jewish Law and the Middle East Peace Process
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Loyola of Los Angeles International and Comparative Law Review Volume 21 Number 2 Article 7 5-1-1999 Speech: Jewish Law and the Middle East Peace Process Abraham D. Sofaer Follow this and additional works at: https://digitalcommons.lmu.edu/ilr Part of the Law Commons Recommended Citation Abraham D. Sofaer, Speech: Jewish Law and the Middle East Peace Process, 21 Loy. L.A. Int'l & Comp. L. Rev. 313 (1999). Available at: https://digitalcommons.lmu.edu/ilr/vol21/iss2/7 This Other is brought to you for free and open access by the Law Reviews at Digital Commons @ Loyola Marymount University and Loyola Law School. It has been accepted for inclusion in Loyola of Los Angeles International and Comparative Law Review by an authorized administrator of Digital Commons@Loyola Marymount University and Loyola Law School. For more information, please contact [email protected]. SPEECH Jewish Law and the Middle East Peace Process ABRAHAM D. SOFAER* Loyola Law School justifiably celebrates establishing the Sydney M. Irmas Memorial Chair in Jewish Law & Ethics. Loyola is determined, under Dean Gerald T. McLaughlin's leadership, to be a place where the law of Christianity, Islam, and Judaism is studied so that its students and the American legal system can derive and utilize the important lessons that these major religious law systems provide. This is a worthy objective, and one which friends of Loyola, and of the study of religious law, should warmly support. Dean McLaughlin asked me to speak on the Middle East peace process, in which I was privileged to play a part while serving as Legal Adviser to the Department of State. It is especially appropriate on this occasion to focus on the invocation by some Jewish fundamentalists of what they claim to be Jewish law in expressing their opposition to the surrender of territory by Israel to Palestinian control. This is a complex and sensitive topic, impossible to cover comprehensively in this brief address. It is worth exploring, however, for at least two reasons. It illustrates the continued vitality of Jewish law and, as with all things vital, its vulnerability to misuse. Jewish law is much more than a search for enlightening tidbits from biblical and rabbinic sources; it is a huge * George P. Shultz Senior Fellow, The Hoover Institution, Stanford University. This paper was delivered on December 8, 1998, at the Skirball Cultural Center in a program presented by Loyola Law School and the Sydney M. Irmas Memorial Chair in Jewish Law & Ethics at Loyola Law School, Los Angeles, California. Copyright © 1999, Abraham D. Sofaer, all rights reserved. 314 Loy. L.A. Int'l & Comp. L.J. [Vol. 21:313 and complex body of rules, traditions, and stories that provides dramatically different lessons to students and adherents. That Jewish law has been invoked to disrupt the Mideast peace process adds further, critical importance to the subject. THE MIDDLE EAST PEACE PROCESS Despite the pain and controversy that surrounds it, an active and progressively successful peace process exists in the Middle East. This has been no small achievement. Jewish immigration to the ancient land of Israel picked up steam in the late 19th century, and became a mass migration during and after the Holocaust in Europe. Arab violence against Jews and Jewish settlements in what was once the land of Israel increased with the growing migration of Jews after 1900, and included attacks in 1920, 1921, 1929, and 1936. The United Nations General Assembly voted in 1947 to partition Palestine into an Arab and a Jewish state, but the Arabs refused to accept this arrangement. When the Jewish leadership declared the existence of the state of Israel on May 14, 1948, six Arab states waged an unsuccessful war against it. Israel and each of the Arab states involved signed armistice agreements, but hostilities continued. Persistent terrorist activity led Israel to invade the Sinai in 1956, and a cease-fire was put in place under the supervision of a U.N. Emergency Force. In 1967, Egypt demanded that the U.N. force be withdrawn, reoccupied Gaza, and closed the Gulf of Aqaba to Israeli shipping. Israel, facing imminent attack, destroyed the Egyptian Air Force and occupied Gaza and Sinai up to the Suez Canal. When Jordan and Syria entered the war, Israel occupied Jerusalem, the entire West Bank, and the Golan Heights. In 1973, Egypt and Syria attacked Israel on its holiest of days, Yom Kippur. Their forces inflicted devastating casualties, but Israel counterattacked and took control of additional areas in Syria and on the Suez Canal's west bank. At each stage of this tragic story, the Jews expanded the territory under their control. On November 22, 1967, the international community settled upon a principle for the resolution of the difficulties between Israel and the Arabs in U.N. Security Council Resolution 242, supplemented in October 1973 by Resolution 338, calling for an exchange of land by Israel for guarantees of peace by the Arab states. Not until 1974, however, was any guaranty given by an Arab state, or any land returned by 1999] Jewish Law and the Middle East Peace Process 315 Israel. In that year, Secretary of State Henry Kissinger negotiated the first withdrawal of Israeli forces, from the west bank of the Suez Canal, which was followed by a second withdrawal in 1976. Egypt agreed to the return of U.N. peacekeepers, and promised no further military action against Israel. The turning point came in November 1977, when Egypt's President Anwar al-Sadat went to Jerusalem on his mission of peace. On March 26, 1979, Egypt and Israel signed a treaty of peace. Israel returned the Sinai to Egypt in 1982, except for Taba, which was returned with some other small areas in 1989. The process of negotiation and withdrawal from Egyptian territory was difficult and time consuming, but it was completed. The peace between Egypt and Israel has been cold; however, the treaty has been adhered to by both sides for almost twenty years. Discussions aimed at returning land to the Palestinians in some form of autonomous rule began in conjunction with the Egyptian/Israeli negotiations. Many issues were discussed, but no agreement was reached. The Gulf War led to the Madrid Conference in October 1991, at which all the Arab states and Palestine Liberation Organization representatives sat down for the first time to discuss peace with Israel. In 1992, an Israeli government under Prime Minister Yitzhak Rabin and Foreign Minister Shimon Peres secretly negotiated with the PLO. Israel agreed in 1993, in exchange for commitments by the PLO to forsake violence and live in peace, to recognize the PLO as the representative of the Palestinians, and, in 1994, to grant limited self-rule, beginning with withdrawals from Gaza and Jericho. On July 25, 1994, Israel and Jordan ended their 46-year state of war, and on October 26, they signed a peace treaty, establishing diplomatic relations, with Israel returning to Jordan territories seized during the 1967 War. On September 28, 1995, Israel and the Palestinians expanded self-rule further to include more areas and more authority. Neither the assassination of Prime Minister Yitzhak Rabin on November 4, 1995, nor the election of Prime Minister Benjamin Netanyahu, nor numerous horrendous acts of terror, caused this process to cease. A partial withdrawal from Hebron was agreed to on January 15, 1997, and the Wye Memorandum of October 23, 1998, expanded the territory to be placed under exclusive Palestinian control from about 2 to 12 percent, adding some 13 percent of the West Bank to some form of Loy. L.A. Int'l & Comp. L.J. [Vol. 21:313 Palestinian control. The Wye Agreement was ratified by Israel's Knesset on November 17, and the process of redeployment began on November 20, with additional withdrawals originally scheduled for December and January 1999, but suspended as of the time this Article was published. In sum, events of the last twenty years establish that, despite continued bloodshed, political turmoil, and repeated delays, a peace process does exist in the Middle East, in which Arabs are securing the return or control of territory from Israel, as the international community prescribed in 1967, in exchange for peace. A great deal remains to be done in the Israeli/Palestinian negotiations, and negotiations between Israel and Syria, which are key to an Israeli/Lebanese accord, have stalled. Israel has made clear, however, that it is prepared in principle to negotiate the return of territory for peace, and a steady pattern of progress is evident. This principle is at the heart of the attack on the peace process supposedly based on Jewish law. JEWISH LAW AND THE JEWISH STATE Israel is a Jewish state. That is not to be confused, however, with its being a state governed by Jewish law. Muslims in Iran, Pakistan, Sudan, or among the Taliban in its de facto control of most of Afghanistan, are able to influence national policy by arguing that their national law must be consistent with the Sharia, the laws of Islam. During the Taba negotiation, Egyptian lawyers told me that one of their concerns in insisting on the return of an area only seven acres in size, rather than agreeing to a territorial compromise, was that they would be attacked as having violated the sacred command that "[f]or Muslims, no piece of land once added to the realm of Islam can ever be ...renounced." 1 Some Jews have the same position with regard to all the land now controlled by Israel, based on their view of Jewish law. While Muslim governments could conclude that making a territorial concession is consistent with Islam, and therefore permissible national policy, the government of Israel faces no analogous need to justify such a decision.