The problem with land swaps

Sar Shalom

Among the international intelligentsia, it is taken as an article of faith that the solution to what they call the Israel-Palestine conflict must be based on the "borders" that existed before the 1967 war. One problem, that this international intelligentsia recognizes, with this approach is that establishing the 1949 Armistice line as a border would make Israel's borders indefensible. Their response is to say that the border will not have to follow the armistice line exactly but could be altered by land swaps in which the Israel could gain land from the Jordanian side of the armistice line in exchange for giving Palestine an equal amount of land from the Israeli side. Right away, this approach raises practical questions such as whether any secure borders could be drawn for Israel in which Palestine has to have at least as much territory on a dunam basis as was on the Jordanian side of the armistice line prior to 1967 and the fact that Abbas holds a veto over any exchange going forward. However, these problems are beside the point from the fundamental flaw of the underlying premise of land swaps. I would call this flaw the supermarket shelf fallacy.

Suppose you walk in to a supermarket and see some produce on the shelf. To whom does that produce belong? The obvious answer is the supermarket. However, are you allowed to walk out with that produce? Of course, just so long as you pay the supermarket for that produce. Such is the status that the land swaps paradigm accords the disputed territories. That paradigm holds that because the land was under Arab jurisdiction prior to the 1967 war, it belongs to the Palestinians. It then tries to mitigate the effects of awarding "proper ownership" to the Palestinians by saying the Israel can acquire part of that land by paying the Palestinians for it.

The fundamental premise of the entire paradigm is that it considers jurisdiction prior to the 1967 war as the first and only criterion by which to determine proper ownership for today. The impetus for that position could come from the preamble to UN Security Council Resolution 242 which states, "Emphasizing the inadmissibility of the acquisition of territory by war ...." However, even on that foundation, the notion that Arab jurisdiction confers rights for today falls flat because of how the disputed territories came under Arab jurisdiction. The international intelligentsia would claim that they rightfully came under Arab jurisdiction because of Partition. What this ignores is that Partition was an advisory resolution, in part due to the General Assembly only having authorization to issue recommendations, and thus could only come into force by both sides accepting it and giving it the force of bilateral treaty. Furthermore, even Partition did not give the Arabs jurisdiction over any part of Jerusalem, setting it aside for international jurisdiction. Yet, the international intelligentsia accords pre-1967 jurisdiction in Jerusalem as proof-positive for rights today. What all this shows is that jurisdiction prior to 1967 is the result of Jordan's conquest during the 1948-1949 war. Thus, decreeing that jurisdiction prior to 1967 confers automatic rights for today means picking and choosing what acquisitions of territory by war are acceptable.

None of this is meant to suggest that the Arabs living in the disputed territories should forever be subjects of a state in which they have no say in its governance. However, changing that situation does not require using the outcome from any previous war, whether in 1949 or 1967, as the basis on which to draw today's map. The principles underlying Partition were reasonable criteria by which to draw the map at that time. If I were to raise any objection, it would be that the Arab state was given exclaves in the Jewish state (Jaffa and Acre) while no exclaves in the Arab state were given to the Jewish state such as Gush Etzion. Even this could be justified because because removing the Arab population of Jaffa and Acre from the Jewish state had the effect of securing a Jewish majority for the Jewish state before the Jewish influx from the rest of the Middle East and the Arabs' abandonment and occasional expulsion from their villages in what became Israel. However, those principles applied today would produce a map that looks nothing like the Partition map. It is time to think of how the principles underlying Partition would affect the map if invoked under today's conditions.