New study proves conclusively UN didn't intend to force Israel back to '49 armistice lines
Draftsman Eugene Rostow argued for years that UN Security Council Resolution 242 was not intended to force Israel back to the 1949 armistice lines. Now, in an upcoming article in the Chicago Journal of International Law, Northwestern University Professor Eugene Kontorovich proves by comparing 242 with five other Security Council resolutions that dealt with territorial withdrawals that Rostow was right: The Security Council never intended to try to force Israel to withdraw to the '49 armistice lines and never intended to make 'settlements' illegal.
Kontorovich cites five pre-167 UN withdrawal resolutions obligating
withdrawals of: the USSR from Iran in 1946, the parties to the
Israeli-Arab 1948 war to withdraw to positions held on October 14 in
1948, North Korea to withdraw from South Korea to the 38th parallel in
1950, Belgium to withdraw from Congo in 1960 and India-Pakistan to
withdraw to August 5 positions in 1965, as decisive in explaining the
resolution.
He writes that the USSR had to withdraw from "the
whole" of Iran, that Belgium had to withdraw from "the territory"
(whereas 242 is missing the definite article "the") of Congo and that
the other three resolutions give definitive dates or markers for
withdrawal.
In contrast, Kontorovich writes that 242 intentional
dropping of "the" and leaving out of a set date or geographic marker
shows that the UN intentionally left the issue vague – which he argues
could be a decisive proof for the pro-Israel reading of the resolution
that Israel only has to withdraw from some territories as agreed in
negotiations.
Next, the article cites 13 more territorial
withdrawal resolutions post-1967 running all the way up to a 2012
resolution ordering Sudan and South Sudan to withdraw to their set
borders where the word "the" appears five times, signifying an
obligation of a complete withdrawal, and the other resolutions also
appear to signal a full withdrawal.
Former UN Ambassador and
Jerusalem Center of Public Affairs Director Dore Gold responded to the
article saying, "Unfortunately there are voices that believe the whole
discussion of the absence of the definite article 'the' in 242 is being
picky. What they don’t understand is that the language of the
resolution was drafted at the highest levels of US government at the
time."
A senior European diplomat told Walla! on Thursday that the
resolution proposal includes the removal of the blockade on Gaza,
transferring control of the Hamas stronghold to the Palestinian
Authority (PA), and a return to peace talks based on the 1949 Armistice
lines.
The specific imposition of pre-defined conditions in peace talks
through a UN resolution, namely that they would be on the basis of the
1949 lines, is something that the US has been opposing for years.
On the other hand, the US proposed the 1949 lines as a basis in
framework proposals submitted earlier in the year, before the
nine-month long negotiations with the PA failed in April as the PA
signed a unity treaty with Hamas.
...
According to the European diplomat who spoke on Thursday, the
European proposal would have both sides stop attacking and define
detailed security arrangements for removing the blockade while
preventing an influx of weapons to Hamas.
"As far as Europe is concerned, it's impossible to separate the issue
of Gaza from the general Palestinian issue. Only a sustainable
diplomatic solution will bring a long quiet for the two peoples," said
the European source.
He added that France put pressure on the US through diplomatic
channels to publish US Secretary of State John Kerry's framework plan
after the Israel-PA negotiations collapsed, so as to turn it into a
program for the international community to pursue.
For it's part, Israel reportedly is distancing itself from the
European proposal, primarily due to the call for 1949 Armistice lines as
a basis for talks.
An Israeli diplomatic source said Thursday that Israel has not ruled
out renewed truce talks in Cairo, but expects Hamas to completely end
its rocket barrage first. Hamas has broken numerous ceasefires through
the course of Operation Protective Edge, most recently this Tuesday.
I wouldn't expect any better of the Europeans. The problem is that at the moment, we can't expect any better of the President of the United States either.
Recall Jodi Rudoren's column calling stone throwing by 'Palestinians' a 'hobby.' Recall also that as an aside in that column, Jodi asserted that the 'settlements' are currently deemed 'illegal' by the United States, a position that was only taken during the Carter administration over the 46 years since Judea and Samaria were liberated. As Adam Kredo noted:
The United States considers Israeli settlements illegal, Rudoren stated in her article.
“The United States, along with most of the world, considers these
settlements illegal, and some of them sit in the heart of the area
imagined as a future Palestinian state,” wrote Rudoren.
However, this statement is factually inaccurate, according to Middle East experts and an analysis of official U.S. policy on Israeli settlements since 1949.
“This is not the declared policy of the United States,” Steven Rosen,
a former top official at the American Israel Public Affairs Committee
(AIPAC), wrote in a 2012 analysis of U.S. policy.
“Successive U.S. administrations have deplored settlement activity as
an obstacle to peace, but no American president—except Jimmy Carter—has
taken the view that building Jewish homes in Jerusalem constitutes a
violation of the Geneva conventions,” wrote Rosen, currently director of
the Washington Project of the Middle East Forum.
While Carter stated in 1980 that he considered the settlements
illegal, every presidential administration of the last 30 years—as well
as those before Carter’s—has refused to state this as U.S. policy.
President Barack Obama has repeatedly declined to declare settlements illegal despite pressure for him to do so.
The United States in 2011 vetoed a United Nations Security Council Resolution that would have labeled Israeli settlements illegal.
“If an American president were to take the position that all Israeli
construction outside the former 1967 line is illegal, it would have the
effect of criminalizing the Jewish communities of the eastern sector of
Jerusalem, where 40 percent of the Jews in that city live,” Rosen wrote
in his policy analysis.
The cabinet decision added a number of Jewish settlements in the West
Bank territory that Israel seized in the 1967 war to a “national
priority list” of communities eligible for extra subsidies for
education, housing, infrastructure projects, cultural programs and
sports, along with better mortgage rates and loans for new homeowners.
Most of the world considers these settlements illegal, and some of them
sit in the heart of the area imagined as a future Palestinian state. The
United States has not taken a position on the settlements’ legality for
several decades, saying instead, according to the State Department, “We
do not accept the legitimacy of continued settlement activity.”
And at the bottom you will find the following correction:
This article has been revised to reflect the following correction:
Correction: August 8, 2013
An
article on Monday about a decision by the Israeli cabinet to add
several Jewish settlements in the West Bank territory seized by Israel
in the 1967 war to a list of communities eligible for extra subsidies
and better mortgage rates and loans for new homeowners misstated the
United States’ view of such settlements. While much of the rest of the
world considers them illegal, as the article noted, the United States
has taken no formal position in the last several years on whether they
are legal or illegal. (In a statement on Tuesday, the State Department
said, “We do not accept the legitimacy of continued settlement
activity.” )
As usual, the problem is that most of the people who read the original article will never see the correction.
For those who are interested in seeing a fascinating lecture on why 'settlements' are in fact both legal and legitimate, regardless of what the anti-Semites of the world say, please go here.
In theory, construction shouldn’t be necessary to stake Israel’s
claim, because the world has already recognized it: UN Security Council
Resolution 242, still officially the defining document of the peace
process, explicitly recognized
Israel’s right to obtain “secure” borders by retaining some of the
territory it captured in 1967, since, as then-U.S. Ambassador to the UN
Arthur Goldberg explained, “Israel’s prior frontiers had proved to be
notably insecure.”
But in practice, the only parts of the West Bank that successive
peace plans have envisaged Israel retaining are the ones where there are
just too many Jews to easily remove. As former President George W. Bush
put it in his 2004 letter
to then-Prime Minister Ariel Sharon, “In light of new realities on the
ground, including already existing major Israeli populations centers, it
is unrealistic to expect that the outcome of final status negotiations
will be a full and complete return to the armistice lines of 1949, and
all previous efforts to negotiate a two-state solution have reached the
same conclusion.”
In contrast, the world has generally dismissed Israeli demands to
keep sparsely settled areas, even when they are equally vital for
security. For instance, all Israeli governments have considered military control over the Jordan Valley essential for security, but even Washington hasn’t backed this demand. And the European Union is much worse: It officially views
the entire West Bank as occupied Palestinian territory to which Israel
has no claim whatsoever unless the Palestinians allow it.
For this reason, Israel should long since have built in E-1–an area every Israeli premier has deemed vital for security–rather than leaving it vacant at the urging of successive U.S. administrations.
I hope Jeff Dunetz will forgive me for lifting his great photoshop from Google images.
The original title of this article is The Lie that Broke Israel's Back(Hat Tip: Ricky G). I didn't use that title - partly because I try to make up my own titles, and partly because I don't see Israel's back as broken. In fact, I see the shift toward the Right among the Israeli electorate as a sign that the majority's collective back is not broken.
Nevertheless, author Steve Apfel does a great job of summarizing the lie called 'Palestine,' and for that alone this piece bears reading.
"Occupied
Palestinian Territory" (OPT) is a thing of smoke and mirrors.
Historically, it never happened; legally, there never was Palestinian
territory for Israel to occupy. Israel took the territories from Egypt
and Jordan in 1967, and there's no getting away from that. So today
Israel has more right than Jordan to be occupying the West Bank, and
more right than Egypt to be occupying Gaza (if Israel's blockade may be
called occupation). "Palestine" never enters the equation. Turn Middle
East wars and laws upside-down and any way you like, but if the
territories belong to any U.N. member, or quasi-member, they belong to
Israel.
Not
even the famous U.N. Resolution 242 can help. It told Israel to
withdraw from territories once held by Jordan, illegally, and Egypt, and
it envisaged those territories' return to those two countries.
"Palestine" never got a mention in Resolution 242 -- for a couple of
good reasons. Palestinians
were not among the belligerents involved in the Six-Day War. Anyway,
the people who were going to stake claim to a nation they would call
Palestine were a year away from being born.
More
than anyone, King Hussein of Jordan understood perfectly that a cart
before the horse never gets off the blocks. So he told the 1988 Arab
League summit in Amman: "The appearance of a distinct Palestinian
national personality comes as an answer to Israel's claim that Palestine
is Jewish."
The
Hashemite monarch was explaining to fellow potentates why a Palestinian
nation had to be conceived in 1968. If it were not, then the West Bank
and Gaza would be Israel's by dint of war and law. Arab armies had
been vanquished in six days, the territories lost to Israel. That made
it imperative for the PLO to revise its covenant, which it did on July
17, 1968. The PLO meddled with Article 24, erasing the old declaration
that the West Bank and Gaza were not occupied and now insisting
that they were. With that sleight-of-hand, a newborn nation came into
the world -- with a newborn bastard illegal occupier.
Here's a video of a talk by Professor Eugene Kontorovich of Northwestern University about the international law issues related to Israel's borders.
This is a little bit long (about 46 minutes), but well worth your time.
Let's go to the videotape. I'll have a final comment after the tape.
I am in touch with Professor Kontorovich (I got this video from him and not from a Google search), so if any of you have questions or would like Professor Kontorovich to come speak on your campus or at your synagogue, please drop me a note at israelmatzav@gmail.com and I will be happy to pass it on to him.
UPDATE TUESDAY 10:59 AM
I have contacted Professor Kontorovich regarding one of the comments below, and he responded as follows:
The mandate specifically says that that Palestine shall be "a Jewish
national home." That will be achieved by allowing Jewish immigration
(which the British did not do). While all residents can become
citizens, the Mandate only speaks of a "Jewish national home."
The Partition Plan has no legal effect, it is a GA resolution.
Israel had no definite "borders" when it was born, aside from the
Mandate. The armistice lines were not borders by their very
definition.
For more than 40 years, the international Left in collusion with the mainstream media (MSM) has attempted to impose a narrative on Israelis that would strip us of the fruits of a defensive war and jeopardize our continued survival at the same time. They have done so using a two-pronged argument: First, that there is a demographic time bomb that will force Israel to choose between being a Jewish state and a democratic state somewhere down the road, and second, that allowing Jews to live in areas liberated from their Jordanian, Egyptian and Syrian occupiers in 1967 is somehow 'illegal.'
In order to sustain this narrative, the international Left and the MSM have turned the United Nations resolutions that were passed in the aftermath of that defensive war on their face by adopting a narrative that was specifically rejected by the Security Council at the time. Moreover, the international Left and the MSM have accepted demographic data from a source that is even less reliable than the City of Chicago's voter rolls: The 'Palestinian Central Bureau of Statistics.'
I'm not going to discuss demography in this post - I have discussed it many, many times previously (sampling here). Instead, I am going to discuss the panic being sown on the Left with the publication of the Levy report last week (I discussed the report previously here, here and here).
In an editorial in Wednesday's editions, the New York Timesblasts the Levy report. Of course, the editorial makes it sound like Israel has construction saws revving away around the clock in Judea and Samaria. Unfortunately, nothing could be further from the truth.
The Times blasts the report as "bad law, bad policy and bad politics." I'd like to take each of those arguments and disagree. Let's start with 'bad law.'
Most of the world views the West Bank, which was taken by Israel from Jordan in the 1967 war, as occupied territory and all Israeli construction there as a violation of international law. The world court ruled this way in 2004. The Fourth Geneva Convention bars occupying powers from settling their own populations in occupied lands. And United Nations Security Council resolution 242, a core of Middle East policy, calls for the “withdrawal of Israeli armed forces from territories occupied in the recent conflict.”
The fact that 'most of the world' views Judea and Samaria, which were liberated by Israel in 1967 from an illegal occupier (only Britain and Pakistan recognized Jordan's occupation) as 'occupied territory' does not make it so. Nor does the fact that 'most of the world' views Israeli construction there as a violation of 'international law' make that construction a violation of international law.
International law has two sources: Treaties and something known as 'customary international law.' The only treaties that govern Judea and Samaria pre-date the State of Israel and grant sovereignty over Judea and Samaria to the Jewish people. Proceedings of the International Court of Justice are only binding on countries that accept its jurisdiction (Israel did not in that 2004 case), and customary international law is not binding on any country that does not adopt the custom. Thus, the statement "Israeli settlements are illegal" is not a statement of international law; it is an opinion on applying international law to a specific circumstance.
Moreover, any "international consensus" about Israeli settlements cannot possibly be a rule of customary international law. Customary international law is the result of common international practice combined with the belief that the practice is required by international law. Therefore, there cannot be a common international "practice" concerning Israeli settlements. Only Israel can have a "practice" concerning Israeli settlements. There can be a customary law about a country allowing its citizens to settle in territory it has captured, not one about another country's answer to a similar dilemma.
As to whether there is an international customary law concerning practices of this type, more generally (i.e., allowing one's citizens to settle in territory captured in international conflict), there is not. Many states have allowed citizens to settle in such territory, and even encouraged them to do so. In some cases (e.g., Morocco and Western Sahara), the practices have been considered illegal, and in others (e.g., India and Goa), the practices have been considered obviously legal. There is no principled line on which to draw the bounds of a rule. In any event, in no case has the world reacted the way it does to Israel. For instance, the EU does not discriminate against products from Western Sahara "settlements" in its free trade agreement with Morocco. The international anti-Israel consensus certainly exists, but it is just as clearly not an expression of customary international law. It is not even a principled application of a rule of law. It is very clearly a singular standard applied to the Jewish state.
In other words, the world's branding of Jewish settlement in Judea and Samaria as an 'illegal occupation' meets Natan Sharansky's 3-D's test for modern anti-Semitism. And you expected better from America's 'newspaper of record'....
The Times goes on to make its 'bad policy' argument.
The recommendations would annul a number of past Israeli Supreme Court rulings and orders, including a 1979 decision forbidding the expropriation of land for “military needs” when the real goal is settlement construction. It is alarming to see this latest attack on the court, which has tried to temper government excesses, ruling that several outposts and buildings constructed on private Palestinian land should be dismantled. Thirty families were evicted from five such buildings last month.
In other words, the Times is arguing that Israel's Supreme Court ought to reign supreme rather than being a co-equal branch of government, and that the Knesset - the closest thing we have to a democratically elected polity in in this country - ought to have no say. Were the Times to adopt that standard for the United States, there would be no income tax today. There would have been no New Deal in the 1930's (some people might argue that the US would be better off that way...). Clearly, declaring an unelected Supreme Court infallible and more equal (to use George Orwell's term) does not comport with democratic values. The Times ought to know better.
The commission, led by Edmund Levy, a former Supreme Court justice, was established in January under pressure from settlement leaders.
And therefore? Is that supposed to invalidate its conclusions? Does that mean that it can and should be ignored? The previous report on 'settlements' - the Sasson Report - was the result of pressure from the Left. Why is that more valid in the Times' view (except for the fact that the Times likes its conclusions better)?
If its conclusions are not firmly rejected by Prime Minister Benjamin Netanyahu, there is likely to be new international anger at Israel.
There's 'international anger' at Israel because we exist. It has nothing to do with whether or not there are a few hundred Jews living in Beit El or Shilo or Hebron or Kfar Tapuach. So the Arabs will seethe a little more? Let them. The only chance that they might (and admittedly this is unlikely) seriously come to the negotiating table is if they see the status quo on the ground changing to their detriment. The Times would have us continue the limbo of the last 45 years. Where has that gotten us?
That could divert attention from Iran just when the world is bearing down with sanctions and negotiations to curb Tehran’s nuclear program.
Linkage was discredited three years ago. Even President Obama (who was its chief proponent) has given up on claiming that there has to be a 'Palestinian state' in order for the West to stop Iran. It's nonsense. Iran has to be stopped for many reasons, many of which have nothing to do with Israel. Ask the Saudis and the Gulf States.
It would also draw attention to a dispiriting anomaly: that a state founded as a democratic homeland for the Jewish people is determined to continue ruling 2.5 million Palestinians under an unequal system of laws and rights.
The 2.5 million number is nonsense. For those who don't remember why, go here (among other places). And as to the 'unequal system of laws and rights,' let's leave aside the fact that the Arabs in Judea and Samaria are better off in every way than any Arabs in any other Arab country in the world with the exception of those who live within the 1949 armistice lines. What would the Times say if Israel proposed annexing Judea and Samaria outright? What excuse would the Times have then to decry Jews living in Judea and Samaria as 'bad policy'? Go ahead and do it? Well, isn't that where the Levy Report would have us heading?
Finally, there's the Times 'bad politics' argument. It essentially says, "Netanyahu has a large enough coalition that he can do whatever we want him to do, and therefore if he doesn't do it, that's bad politics."
That is unsustainable, and it is damaging to Israel’s security and regional peace. Now that Mr. Netanyahu has expanded his ruling coalition, his excuse is gone for not ending his counterproductive settlement policy and using his new political clout to advance a peace agreement with the Palestinians.
We didn't elect the Times editorial writers to be Prime Minister, did we? So why does Netanyahu have to listen to them?
The Levy report injects a fresh new element into the debate over Judea and Samaria, and gives exposure to a view that is under-represented. It should be taken seriously by all who believe in the pursuit of justice and peace in the Middle East, because for the first time an Israeli government panel has made the legal case for Israel holding onto Judea and Samaria. But it won't be taken seriously. Certainly not by the Times.
UPDATE 10:51 PM
Part of the discussion of international law came from an email that I received this morning from Professor Avi Bell. I redacted parts of that email. A large quotation from that email is contained in Soccer Dad's Middle East Media Sampler, which is a few posts up from here.
Flouting international opinion, an Israeli government-appointed commission of jurists said Monday that Israel’s presence in the West Bank was not occupation and recommended that the state grant approval for scores of unauthorized Jewish settlement outposts there. The committee’s legal arguments, while nonbinding, could provide backup for the government should it decide to grant the outposts retroactive official status. But such a move would inevitably stir international outrage and deal a significant blow to prospects for an Israeli-Palestinian peace settlement.
Why did Kershner use the term "international opinion" not "international law?" Also what did she mean by "non-binding?" This seems to be a legal opinion, not an agreement.
If the use of "opinion" was intentional that means that the international outrage is largely manufactured.
Kershner reports further:
Most of the world views the areas that Israel conquered from Jordan in the 1967 war, and where the Palestinians want to establish a future state, as occupied territory, and all Israeli construction there as a violation of international law. Israel distinguishes between its 120 or so established settlements in the West Bank and those that went up since the 1990s with some government support, but without formal government authorization. The three-member committee, led by Edmund Levy, a retired Supreme Court justice, confirmed a position long held by Israel that those territories are not occupied, since Jordan’s previous hold over them was never internationally recognized, and that their fate must be determined in negotiations.
Again, Kershner doesn't cite a specific legal reason why settlements are "a violation of international law," just that "[m]ost of the world views" it that way. When she cites the reasoning of the committee, she actually provides the legal reasoning.
I have no ideas if Kershner used the terms intentionally or not.
Of course Fatah objected:
Fatah, the mainstream Palestinian national movement led by President Mahmoud Abbas, issued a statement saying that the Levy committee’s conclusions were a “farce” that “mocked and defied the international community.” Palestinian officials noted that the report was published on the anniversary of the July 9, 2004, advisory opinion of the International Court of Justice in The Hague, which determined that Israel’s construction of its barrier across the 1967 boundary, in West Bank territory, violated international law.
But the ICJ is a highly politicized body and its ruling is based on an assumption that the territories capture by Israel in 1967 are occupied. The Levi committee shows that those territories are not occupied.
The only independent Israeli sources Kershner cites are critical of the decision.
Israeli human rights organizations opposed to settlement slammed the report. “The Levy Committee’s suggestion to view illegal statements or actions by various ministers as government consent undermines the principles of the rule of law and good governance,” Michael Sfard, the legal adviser of Yesh Din, said in a statement. The Association for Civil Rights in Israel said that the report’s conclusions were “legally unfounded and their purpose is to authorize and deepen the injustice that Israeli governments are performing in the Occupied Territories in the past 45 years.”
Of course Israeli "human rights organizations" are "opposed to settlement" by definition. But that doesn't make their opinion legally correct.
Israel entered the West Bank and Gaza Strip in the 1967 Six-Day War. Israeli legal experts traditionally resisted efforts to define the West Bank and Gaza Strip as "occupied" or falling under the main international treaties dealing with military occupation. Former Chief Justice of the Supreme Court Meir Shamgar wrote in the 1970s that there is no de jure applicability of the 1949 Fourth Geneva Convention regarding occupied territories to the case of the West Bank and Gaza Strip since the Convention "is based on the assumption that there had been a sovereign who was ousted and that he had been a legitimate sovereign." In fact, prior to 1967, Jordan had occupied the West Bank and Egypt had occupied the Gaza Strip; their presence in those territories was the result of their illegal invasion in 1948, in defiance of the UN Security Council. Jordan's 1950 annexation of the West Bank was recognized only by Great Britain (excluding the annexation of Jerusalem) and Pakistan, and rejected by the vast majority of the international community, including the Arab states.
And after Oslo:
Under Oslo, Israel transferred specific powers from its military government in the West Bank and Gaza to the newly created Palestinian Authority. Already in 1994, the legal advisor to the International Red Cross, Dr. Hans-Peter Gasser, concluded that his organization had no reason to monitor Israeli compliance with the Fourth Geneva Convention in the Gaza Strip and Jericho area, since the Convention no longer applied with the advent of Palestinian administration in those areas.13 Upon concluding the Oslo II Interim Agreement in September 1995, which extended Palestinian administration to the rest of the West Bank cities, Foreign Minister Shimon Peres declared: "once the agreement will be implemented, no longer will the Palestinians reside under our domination. They will gain self-rule and we shall return to our heritage."14 Since that time, 98 percent of the Palestinian population in the West Bank and Gaza Strip has come under Palestinian jurisdiction.15 Israel transferred 40 spheres of civilian authority, as well as responsibility for security and public order, to the Palestinian Authority, while retaining powers for Israel's external security and the security of Israeli citizens.
Early on in the essay, Gold explains why the term "occupation" has been used in this context:
Three clear purposes seem to be served by the repeated references to "occupation" or "occupied Palestinian territories." First, Palestinian spokesmen hope to create a political context to explain and even justify the Palestinians' adoption of violence and terrorism during the current intifada. Second, the Palestinian demand of Israel to "end the occupation" does not leave any room for territorial compromise in the West Bank and Gaza Strip, as suggested by the original language of UN Security Council Resolution 242 (see below). Third, the use of "occupied Palestinian territories" denies any Israeli claim to the land: had the more neutral language of "disputed territories" been used, then the Palestinians and Israel would be on an even playing field with equal rights. Additionally, by presenting Israel as a "foreign occupier," advocates of the Palestinian cause can delegitimize the Jewish historical attachment to Israel. This has become a focal point of Palestinian diplomatic efforts since the failed 2000 Camp David Summit, but particularly since the UN Durban Conference in 2001. Indeed, at Durban, the delegitimization campaign against Israel exploited the language of "occupation" in order to invoke the memories of Nazi-occupied Europe during the Second World War and link them to Israeli practices in the West Bank and Gaza Strip.4
Contrary to international opinion and the claims of Israeli human rights organizations, it is the loaded use of the term "occupation" that makes peace less likely, not the Israeli presence in Judea and Samaria.
Thus, if the charge that Israel’s hold on the territories is illegal is based on the charge of theft from its previous owners, Jordan’s own illegitimacy on matters of legal title and its subsequent withdrawal from the fray makes that legal case a losing one. Well before Jordan’s renunciation, Eugene Rostow, former dean of Yale Law School and undersecretary of state for political affairs in 1967 during the Six-Day War, argued that the West Bank should be considered “unallocated territory,” once part of the Ottoman Empire. From this perspective, Israel, rather than simply “a belligerent occupant,” had the status of a “claimant to the territory.” To Rostow, “Jews have a right to settle in it under the Mandate,” a right he declared to be “unchallengeable as a matter of law.” In accord with these views, Israel has historically characterized the West Bank as “disputed territory” (although some senior government officials have more recently begun to use the term “occupied territory”). Because neither Great Britain, as the former trustee under the League of Nations mandate, nor the since deceased Ottoman Empire—the former sovereigns prior to the Jordanians—is desirous or capable of standing up as the injured party to put Israel in the dock, we must therefore ask: On what points of law does the case against Israel stand?
Phillips also notes that after the Six Day War, Israel was eager to make peace with its neighbors who rejected such overtures out of hand. Had the Arabs been willing to make peace with Israel forty five years ago, there'd be no "occupation." (There also probably would have been no "Palestinians.") The claims of Israeli occupation seems less an exercise in good faith than an effort to get a "do over." Phillips point about Israel's willingness to make peace in the wake of the Six Day War, has been reinforced by the recent release of Israeli government deliberations after that war.
Although there were differences on the issues of the destiny of the West Bank, and on whether peace treaties should be based on international frontiers, ministers all spoke of peace with security arrangements. The positive answer to the security issue was finally approved by a majority of one, 10 to 9: it was decided that a peace agreement should ensure freedom of navigation in the Strait of Tiran, the Gulf of Aqaba, and the Suez Canal; the freedom of flight over them, and the demilitarization of the Sinai Peninsula. The formula agreed to by unanimity on June 19, 1967 was that "Israel proposes the conclusion of peace treaties with Egypt and Syria on the basis of the international frontiers and Israel's security needs." This proposal was presented to both Egypt and Syria, but no positive response came from either. Instead, the Arab Summit leaders at Khartoum announced on September 1, 1967 the three "nos." As a result of Khartoum, Prime Minister Eshkol wrote a month later, "I doubt whether the government would approve the decision of June 19 exactly as it stands." In view of the continuing Arab leaders' refusal to negotiate, the decision did indeed become invalid.
What this means, if implemented, is simple: The Israeli government would treat West Bank land as if it were land in Israel proper (pre-1967 Israel). Now, of course, if Israel were to treat the land of the West Bank as part of Israel, it would necessarily follow that it would have to treat the people who live on that land as Israeli citizens, extending them full voting rights, just as it extends citizenship to people who live in Israel proper, regardless of ethnicity. So: The natural consequence of this notion, if it is carried through to law, would be to extend voting rights to the Palestinians of the West Bank. This would spell the end of Israel as a Jewish-majority democracy, but the right-wing in Israel seems more enamored of land-ownership than it does of such antiquated notions as, you know, Zionism.
James Taranto deflected this argument: The U.S. has several unincorporated territories--insular possessions over which America exercises sovereignty but which are not part of the U.S. They are, in declining order of population (and omitting unpopulated islands), Puerto Rico, Guam, the U.S. Virgin Islands, American Samoa and the Northern Mariana Islands. Residents of these territories do not have the right to vote in presidential elections. They have no representation in the Senate and only a nonvoting delegate or (in the case of Puerto Rico) resident commissioner in the House. ... Goldberg and others who repeat this trope need to explain why Israel can't have unincorporated territories if the U.S. can.
For 'moderate' 'Palestinian' President Mahmoud AbbasAbu Mazen, it's tough suddenly not being the center of attention after all these years. One thing Prime Minister Netanyahu has finally succeeded in doing after three years in office is to put Iran on the table as the main item on the menu, and to relegate the 'Palestinians' to the back burner. And while it's possible that Obama may demand a quid pro quovis a vis the 'Palestinians' in return for doing Israel's bidding on Iran, it's hard to believe that making such a demand wouldn't discredit Obama entirely in the eyes of the American people. So these are desperate times for the attention-starved Abu Mazen. What can he do to make his 'people' the center of attention again? Abu Mazen is going to write a letter.
Palestinian Authority President Mahmoud Abbas is about to send Prime Minister Binyamin Netanyahu the "mother of all letters" regarding the future of the peace process, a PA official in Ramallah said Sunday.
The official said that the letter was not ready yet and that Abbas has so far completed the "historic introduction" in which he details the major reasons behind the failure of the Oslo Accords.
The Palestinian leadership is scheduled to hold a meeting in Ramallah on Wednesday to discuss the contents of the letter, which will also be sent to the UN secretary-general.
The letter will hold Israel fully responsible for the failure of the peace process because of its failure to stop construction in the settlements and east Jerusalem and refusal to accept the pre-1967 lines as the basis for a two-state solution, the official said.
He added that the "mother of all letters" would be brought to the attention of the current US administration and some EU countries before it is delivered to Netanyahu.
The Saudi-owned Al-Arabiya TV station said last weekend that Abbas was planning to send the letter to Israel through the Jordanian government.
Oslo failed because the 'Palestinians' have not made a single concession in more than 60 years. Oslo failed because the 'Palestinians' never fulfilled a single obligation they undertook with Oslo, from legally amending their charter to stop calling for Israel's destruction, to destroying the Hamas terrorist organization that they are coddling. Oslo never required Israel to cease construction anywhere, and it certainly never required Israel to accept the 1949 armistice lines as the basis of anything - that would contradict UN Security Council Resolution 242. In fact, Oslo never even contemplated the creation of a 'Palestinian state,' only that the sides would reach an agreed solution. Prime Minister Rabin was quite clear in his last speech to the Knesset in 2005 that he had no intention of allowing the establishment of a 'Palestinian state.'
But it doesn't matter right now. Netanyahu has bigger fish to fry.
Why Egypt might start a war with Israel and what can be done to stop it
Evelyn Gordon worries that Egypt may seek to distract its population from its economic woes by making war with Israel, thinking that it has nothing to lose because the West will demand that Israel return any territory that Egypt loses anyway.
The revolution left Egypt an economic basket case. Tourism, the country's second-largest revenue source, was down 35 percent in the first nine months of last year, while third-quarter unemployment stood at 12 percent, up from 9 percent a year earlier. Foreign exchange reserves plunged 50 percent in 2011 - a disaster for a country that imports half its food - and last month, a government bond issue flopped, with investors buying less than a third despite yields of almost 16 percent. The chances that Egypt's new government can produce the economic miracle needed to reverse this decline seem slim, and if it doesn't, demonstrators are likely to return to Tahrir Square to demand its ouster, just as they did with Hosni Mubarak.
Hence Egypt's new rulers may soon find themselves in desperate need of something to distract the public from its economic distress. And in a country where 90% of the population views Israel as an "enemy" and a "threat," they might well see war with Israel as the ideal distraction.
This makes it vital for Western leaders to make it clear that Egypt does have something irreversible to lose by starting another war - namely, that if it loses Sinai to Israel again, the West won't back Egyptian demands for its full return. But there's no way to make such a threat credible while the West is simultaneously demanding that Israel return every inch of land captured in an earlier defensive war: Egypt's leaders will know they just have to wait a few years for the furor to die down, and the West will similarly demand 100 percent restitution for them.
It's therefore high time for Western leaders to send the following message to both Syria and the Palestinians: You went to war, you lost, and you refused to make peace for 45 years; our patience is exhausted. We will no longer back your demands for restoring the status quo ante; aggression and intransigence have a price.
Of course, Evelyn is right. But we all know that there's not a chance in hell that the Obama-led US - let alone the anti-Semitic Europeans - are going to make a statement like that to the Syrians and the 'Palestinians.'
Britain's conservative government just doesn't get it
In the face of all the evidence to the contrary, British Foreign Secretary William Hague said last week that 'freedom is flowering' in the Arab spring.
Electoral success by parties rooted in Islam has led some to fear that change may be for the worse. But to say that Arab Spring has turned into cold winter is wrong. Such pessimism misses the extraordinary opportunities that popular demand for freedom and dignity bring, and could lead us to disengage at a time when we need to redouble our diplomatic and long-term support to the region.
The Arab Spring was always going to be a long process, not an instant fix. It was bound to take different forms in each country. The staging of genuine elections in countries that have been denied them for decades is significant. But it is what happens after elections that will determine success or failure.
The new governments in Egypt, Tunisia and Libya face enormous challenges as well as sky-high expectations from their people. Having paid a high price for their revolutions, they expect tangible improvements in daily life. As Eastern Europe after 1989 showed, this takes time.
It will be interesting to see what happens when these people discover that they have simply traded one stifling dictatorship for another (that may well be worse).
Acknowledging that governments always have to find some compromises between pragmatism and morality, it nevertheless seems that this government is finding it particularly difficult to locate a balance – and even harder to locate the consistency without which almost any efforts in the region are doomed.
Anyhow – doubtless this is all terribly pessimistic. Fortunately in his Times piece Mr Hague riffs on all the ‘positive’ things that those straw-man ‘pessimists’ keep ignoring. Perhaps simple ‘optimism’ is the foreign policy we’ve all been waiting for. So regarding the wider events Hague writes, ‘On the positive side, Tunisia has its first democratically elected parliament since the 1950s, with 24 per cent of the seats held by women’.
True. But then, on the negative side is the fact that the party of the Muslim Brotherhood (Ennahda) won the most seats. One might also add that on January 5th when the leader of the terrorist group Hamas arrived in Tunis (strange choice for such an early visit?) he was greeted by a couple of thousand supporters of the Ennahda party welcoming him with, among other familiar theme tunes, the chant: ‘Kill the Jews’. Anyhow – nobody wants to be a pessimist, so back to the bright side.
Mr Hague informs us of the ‘positive’ fact that ‘Turnout in the first phase of Egypt’s elections was above 60 per cent, compared with 23 per cent in the 2005 elections under the Mubarak regime’. True, that’s a wonderful upsurge in voter turnout. I’m simply not sure this ‘positive’ of increased turnout trumps the ‘negative’ fact that the parties which have been rushed into power are the Islamist parties. Nor, it seems to me, does it over-ride the fact that since March last year more than 100,000 Coptic Christian Egyptians have fled the country. Mr Hague finds an attempt to soften all this. For instance he describes the electoral success of ‘parties rooted in Islam’ and parties ‘drawing their inspiration from Islam’. Yet that is not the case. The Muslim Brotherhood parties coming to power across the region draw their inspiration from violent Islam, political Islam, and totalitarian Islam. For instance the ‘Freedom and Justice Party’ has already committed to withdraw Egypt from the major conventions protecting the rights of women. It is wrong to present them as Islamic versions of the Christian Democratic Union.
But Hague isn't the only British politician to ignore facts. Deputy Prime Minister Nick Clegg is also in the running for the dumbest statement of the week.
British Deputy Prime Minister Nick Clegg said that Israeli settlements in the West Bank are "deliberate vandalism," underlining the UK government's hardening line, British The Jewish Chronicle reported Monday.
Speaking alongside Palestinian Authority President Mahmoud Abbas during his visit to the UK, Clegg condemned continuous settlement building in the "strongest possible terms."
Vandalism? What exactly are the 'settlements' (whose construction is far from continuous and only within their existent borders) 'vadalizing'? Arutz Sheva reports that Clegg even tried to explain.
Clegg justified his rhetoric and was quoted by the London Jewish Chronicle as saying, "Once you've placed physical facts on the ground that make it impossible to deliver something that everyone has for years agreed is the ultimate destination [peace via a two-state solution] ... it is an act of deliberate vandalism to the basic premise on which negotiations have taken place for years and years and years. And that is why we have expressed our concerns as a government."
But 'everyone' does not agree, including both of the parties. And as Arutz Sheva points out, the 'negotiations' are not really negotiations.
The peace process has evolved not a long and drawn out diplomatic attempt to grant the Palestinian Authority all of its territorial and political demands under the guise of “negotiations” but which are in essence an ultimatum to Israel. The Palestinian Authority has said that if Israel does agree to its terms, it will make another attempt to win recognition on its terms by appealing directly to the United Nations.
I would suggest strongly that Clegg examine closely what George Brown - Britain's Foreign Secretary at the time that Resolution 242 passed - and Lord Caradan, a Briton who was the chief author of that resolution, had to say about it. They certainly would not take the position that 'everyone' agrees that the solution is a 'Palestinian state' along the 1949 armistice lines.
Asaf Romirowsky and Efraim Karsh argue that if the UN recognizes a 'Palestinian state' it will be betraying the 'land for peace' formula.
The public diplomacy of Arafat and his successor, Mahmoud Abbas, also ran contrary to the letter and spirit of 242. The Palestinians have consistently misrepresented the resolution as calling for Israel's complete withdrawal to the pre-June 1967 lines, while claiming that its stipulation for "a just settlement of the refugee problem" meant endorsement of the Palestinian "right of return"—the standard Arab euphemism for Israel's destruction through demographic subversion. They also sought to undermine the resolution's insistence on the need for a negotiated settlement, seeking time and again to engineer an internationally imposed dictate despite their commitment to a negotiated settlement through the Oslo process.
When Israel offered at the American-convened July 2000 peace summit in Camp David to cede virtually the entire territory of the West Bank and Gaza Strip to the nascent Palestinian state and made concessions with respect to Jerusalem, Arafat responded with a campaign of terror unmatched in the history of the Jewish state. Seven-and-a-half years later, at yet another U.S.-sponsored summit, Mr. Abbas rejected Israel's offer of a Palestinian Arab state in 97% of the West Bank and all of Gaza, and categorically dismissed the request to recognize Israel as a Jewish state alongside the would-be Palestinian state, insisting instead on full implementation of the "right of return."
Since the inauguration of the Obama administration, Mr. Abbas has dropped all remaining pretenses of seeking a negotiated settlement, striving instead to engineer international enforcement of a complete Israeli withdrawal without a peace agreement, or, indeed, any quid pro quo. Were the U.N. General Assembly to fall for the Palestinian ploy, it will not only reward decades of duplicity, intransigence, and violence and betray its own formula of "land for peace," but will be introducing a new and dangerous stage in the century-long feud between Arabs and Jews: that of "land for war."
I wonder if 242 could be passed - or repealed - today. Hmmm.
A letter drafted jointly by lawyers of the Legal Forum for Israel and by Amb. Alan Baker, Director of the Institute for Contemporary Affairs at the Jerusalem Center for Public Affairs has been signed by lawyers from around the World and sent to United Nations Secretary General Ban Ki-Moon. The letter says that it is illegal to create a 'Palestinian state' by a unilateral vote in the United Nations General Assembly.
We, the undersigned, attorneys from across the world who are involved in general matters of international law, as well as being closely concerned with the Israeli-Palestinian dispute, appeal to you to use your influence and authority among the member states of the UN, with a view to preventing the adoption of the resolution that the Palestinian delegation intends to table at the forthcoming session of the General Assembly, to recognize a Palestinian state "within the 1967 borders."
By all standards and criteria, such a resolution, if adopted, would be in stark violation of all the agreements between Israel and the Palestinians, as well as contravening UN Security Council Resolutions 242 (1967) and 338 (1973) and those other resolutions based thereon.
Our reasoning is as follows:
1. The legal basis for the establishment of the State of Israel was the resolution unanimously adopted by the League of Nations in 1922, affirming the establishment of a national home for the Jewish People in the historical area of the Land of Israel. This included the areas of Judea and Samaria and Jerusalem, and close Jewish settlement throughout. This was subsequently affirmed by both houses of the U.S. Congress.
2. Article 80 of the UN Charter determines the continued validity of the rights granted to all states or peoples, or already existing international instruments (including those adopted by the League of Nations). Accordingly, the above-noted League resolution remains valid, and the 650,000 Jews presently resident in the areas of Judea, Samaria and eastern Jerusalem reside there legitimately.
3. "The 1967 borders" do not exist, and have never existed. The 1949 Armistice Agreements entered into by Israel and its Arab neighbors, establishing the Armistice Demarcation Lines, clearly stated that these lines "are without prejudice to future territorial settlements or boundary lines or to claims of either Party relating thereto." Accordingly, they cannot be accepted or declared to be the international boundaries of a Palestinian state.
4. UN Security Council Resolutions 242 (1967) and 338 (1973) called upon the parties to achieve a just and lasting peace in the Middle East and specifically stressed the need to negotiate in order to achieve "secure and recognized boundaries."
5. The Palestinian proposal, in attempting to unilaterally change the status of the territory and determine the "1967 borders" as its recognized borders, in addition to running squarely against Resolutions 242 and 338, would be a fundamental breach of the 1995 Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip, in which the parties undertook to negotiate the issue of borders and not act to change the status of the territories pending outcome of the permanent status negotiations.
6. The Palestinians entered into the various agreements constituting what is known as the "Oslo Accords" in the full knowledge that Israel's settlements existed in the areas, and that settlements would be one of the issues to be negotiated in the permanent status negotiations. Furthermore, the Oslo Accords impose no limitation on Israel's settlement activity in those areas that the Palestinians agreed would continue to be under Israel's jurisdiction and control pending the outcome of the permanent status negotiations.
7. While the Interim Agreement was signed by Israel and the PLO, it was witnessed by the UN together with the EU, the Russian Federation, the U.S., Egypt, and Norway. It is thus inconceivable that such witnesses, including first and foremost the UN, would now give license to a measure in the UN aimed at violating this agreement and undermining major resolutions of the Security Council.
8. While the UN has maintained a persistent policy of non-recognition of Israel's sovereignty over Jerusalem pending a negotiated solution, despite Israel's historic rights to the city, it is inconceivable that the UN would now recognize a unilaterally declared Palestinian state, the borders of which would include eastern Jerusalem. This would represent the ultimate in hypocrisy, double standards, and discrimination, as well as an utter disregard of the rights of Israel and the Jewish People.
9. Such unilateral action by the Palestinians could give rise to reciprocal initiatives in the Israeli Parliament (Knesset) which could include proposed legislation to declare Israel's sovereignty over extensive parts of Judea and Samaria, if and when the Palestinians carry out their unilateral action.
Of course, the real question is, given the facts in their letter, why should there be a 'Palestinian state' at all?
Saudi Prince Alwaleed Bin Talal on Obama's handling of Israel
As you might imagine, Prince Alwaleed Bin Talal says that Israel is the 'obstacle to peace.' That's expected. But Bin Talal looks out for the interests of the Arabs - Obama is supposed to look out for the interests of the United States.
Netanyahu rejects withdrawal to '49 armistice lines
Is this where we're heading on Friday?
Prime Minister Netanyahu's reaction to President Obama's speech on Thursday night was to reject Obama's call to return to the 1949 armistice lines, to demand a reaffirmation of President Bush's 2004 letter saying that Israel would be allowed to annex the 'settlement blocs,' to demand the the 'refugees' be settled outside of Israel and to wonder whether Barack Hussein Obama gets it.
Prime Minister Binyamin Netanyahu on Thursday issued a quick response to US President Barack Obama's Middle East speech that was noticeably negative in tone.
While thanking Obama for his commitment to peace, the statement put out by the PMO said that the establishment of a Palestinian state cannot come at Israel’s expense.
Netanyahu said he expected to hear from Obama a re-affirmation of the 2004 letter from President George W. Bush to Ariel Sharon that did not call for a return to the 1967 lines, and recognized that any agreement would take into account the changed realities on the ground -- a line interpreted by Israel to mean a recognition that Israel would hold on to the large settlement blocs.
The statement also said that the Bush letter made clear that Palestinian refugees would be absorbed in a future Palestinian state, something that was not explicitly mentioned in Obama’s speech.
“Without a solution to the refugee issue by settling them outside of Israel, the statement said, no territorial concession will end the conflict.
Referring to Obama’s statement about Israel as the nation state of the Jewish people, the statement said the Palestinians, and not only the US, need to recognize that as a fact.
Netanyahu also said that he will make clear in his meeting with Obama that Israel will need to remain on the Jordan River, and that he was disappointment by Fatah’s reconciliation with Hamas.
A senior official in the PMO said following the speech he was disappointed that the president did not answer more forcefully the refugee issue.
"They don't understand the reality" the official said. There was concern in Israel that what we saw Sunday, with refugees storming border fences will occur again.
The source said that the outline Obama gave represented a situation where "the price was too high."
It's important to point out that the Obama administration has now rejected UN Security Council Resolution 242 - which calls for 'secure and recognized boundaries' for Israel and which purposely does not mention a return to the 1967 borders or equivalent exchange.
Meanwhile, the 'Palestinians' will not issue an official reaction until it consults with their cousins, the Arab countries.
I didn't think Obama would go this far to try to push Israel. I thought he would give up until after the elections. This speech shows that Obama is a bull-headed ideologue who is incapable of flexibility or change. God willing, he will go down to ignominious defeat next November. It can't happen soon enough.
Kenneth Levin weighs in on the controversy over whether organizations who support a 'limited BDS' only against Jewish towns in Judea and Samaria ought to be a part of the Jewish community. After reviewing the history of negotiations for 'peace' in the Middle East, Levin concludes that they should not.
Israel faces genocidal enemies, nations and groups openly dedicated to its annihilation. The country has a right to defend itself and to retain the capacity to do so. Yet there are Jews and Jewish organizations demanding concessions from Israel that would compromise its defense. They call for pressures to force it to accept such concessions, condemn the nation for resisting, and do so without addressing the threats faced by the nation. There are Jewish individuals and groups that ignore the threats, and the long and continuing history of assaults upon Israel by her neighbors, and cast Israel's insistence upon defensible borders as land grabs, as rejection of peace, as colonial expansionism. Such people are defaming the Jewish state and making common cause with those who would destroy her.
For organizations genuinely dedicated to Israel's well-being to welcome such individuals and groups - caricatures and travesties of pro-Israel efforts - within the tent of Israel's supporters, to lend them that legitimacy, is a betrayal of the cause of the Jewish state's survival and security.
When you're trying to find the correct interpretation of a document that was written more than 40 years ago and whose contents are now in dispute, you're not going to do much better than a written explanation from one of the document's authors. Ted Belman reproduces a 1991 article written in The New Republic by Eugene Rostow, the draftsman of UN Security Council resolution 242.
Resolution 242, adopted after the Six-Day War in 1967, sets out criteria for peace-making by the parties; Resolution 338, passed after the Yom Kippur War in 1973, makes resolution 242 legally binding and orders the parties to carry out its terms forthwith. Unfortunately, confusion reigns, even in high places, about what those resolutions require.
For twenty-four years Arab states have pretended that the two resolutions are “ambiguous” and can be interpreted to suit their desires. And some European, Soviet and even American officials have cynically allowed Arab spokesman to delude themselves and their people–to say nothing of Western public opinion–about what the resolutions mean. It is common even for American journalists to write that Resolution 242 is “deliberately ambiguous,” as though the parties are equally free to rely on their own reading of its key provisions.
Nothing could be further from the truth. Resolution 242, which as undersecretary of state for political affairs between 1966 and 1969 I helped produce, calls on the parties to make peace and allows Israel to administer the territories it occupied in 1967 until “a just and lasting peace in the Middle East” is achieved. When such a peace is made, Israel is required to withdraw its armed forces “from territories” it occupied during the Six-Day War– not from “the” territories nor from “all” the territories, but from some of the territories, which included the Sinai Desert, the West Bank, the Golan Heights, East Jerusalem, and the Gaza Strip.
Five-and-a-half months of vehement public diplomacy in 1967 made it perfectly clear what the missing definite article in Resolution 242 means. Ingeniously drafted resolutions calling for withdrawals from “all” the territories were defeated in the Security Council and the General Assembly. Speaker after speaker made it explicit that Israel was not to be forced back to the “fragile” and “vulnerable” Armistice Demarcation Lines, but should retire once peace was made to what Resolution 242 called “secure and recognized” boundaries, agreed to by the parties. In negotiating such agreements, the parties should take into account, among other factors, security considerations, access to the international waterways of the region, and, of course, their respective legal claims.
...
The heated question of Israel’s settlements in the West Bank during the occupation period should be viewed in this perspective.
The British Mandate recognized the right of the Jewish people to “close settlement” in the whole of the Mandated territory. It was provided that local conditions might require Great Britain to “postpone” or “withhold” Jewish settlement in what is now Jordan. This was done in 1922. But the Jewish right of settlement in Palestine west of the Jordan river, that is, in Israel, the West Bank, Jerusalem, and the Gaza Strip, was made unassailable. That right has never been terminated and cannot be terminated except by a recognized peace between Israel and its neighbors. And perhaps not even then, in view of Article 80 of the U.N. Charter, “the Palestine article,” which provides that “nothing in the Charter shall be construed … to alter in any manner the rights whatsoever of any states or any peoples or the terms of existing international instruments….” Some governments have taken the view that under the Geneva Convention of 1949, which deals with the rights of civilians under military occupation, Jewish settlements in the West Bank are illegal, on the ground that the Convention prohibits an occupying power from flooding the occupied territory with its own citizens. President Carter supported this view, but President Reagan reversed him, specifically saying that the settlements are legal but that further settlements should be deferred since they pose a psychological obstacle to the peace process.
In any case, the issue of the legality of the settlements should not come up in the proposed conference, the purpose of which is to end the military occupation by making peace. When the occupation ends, the Geneva Convention becomes irrelevant. If there is to be any division of the West Bank between Israel and Jordan, the Jewish right of settlement recognized by the Mandate will have to be taken into account in the process of making peace.
This reading of Resolution 242 has always been the keystone of American policy. In launching a major peace initiative on September 1, 1982, President Reagan said, “I have personally followed and supported Israel’s heroic struggle for survival since the founding of the state of Israel thirty-four years ago: in the pre-1967 borders, Israel was barely ten miles wide at its narrowest point. The bulk of Israel’s population lived within artillery range of hostile Arab armies. I am not about to ask Israel to live that way again.”
Stephen Walt has once again falsified the American position on Israel.
And yet, in a Feb. 2 blog piece published on the Foreign Policy website, Walt writes:
Last Friday the United States vetoed a U.N. Security Council Resolution condemning Israel's continued expansion of settlements in the occupied territory of the West Bank. The resolution didn't question Israel's legitimacy, didn't declare that "Zionism is racism," and didn't call for a boycott or sanctions. It just said that the settlements were illegal and that Israel should stop building them, and called for a peaceful, two-state solution with "secure and recognized borders. The measure was backed by over 120 countries, and 14 members of the security council voted in favor. True to form, only the United States voted no.
There was no strategic justification for this foolish step, because the resolution was in fact consistent with the official policy of every president since Lyndon Johnson. All of those presidents has understood that the settlements were illegal and an obstacle to peace, and each has tried (albeit with widely varying degrees of enthusiasm) to get Israel to stop building them.
It is rather clear that the "official policy" of the current administration is opposed to labelling settlements illegal. Susan Rice, the American ambassador to the United Nations, indicated that one of the reasons the U.S. vetoed the resolution was because its disagreement with use of this word.
Walt lies again. No one has asked Americans to die for Israel. And with the exception of the Carter administration, no American administration has called 'settlements' 'illegal.'
Bolton and the OU on the Security Council resolution
Jennifer Rubin has John Bolton's reaction to President Obama's attempt to muddy the waters at the UN Security Council, as well as some solid pushback from the OU (Union of Orthodox Jewish Congregations of America). Here's Bolton:
This is a classic case of negotiating for the sake of negotiating. The Obama Administration may well produce a slightly less-outrageous draft resolution than the sponsors' original draft, but this is simply putting lipstick on a porcine being. If the United States votes for or abstains on such a resolution, it will reflect a dramatic shift in policy against Israel. If the United States vetoes such a resolution, it will be voting against a "more reasonable" text. The right approach is to say at the outset that the sponsors' approach is fundamentally misguided, and that the only sensible US policy will be to veto. So doing may actually dissuade the sponsors from proceeding, now or in the future, or will at least shorten the period of agitation and agony. American weakness in this type of context only invites further provocation.
The OU's reaction includes this:
Assertions that Israeli "settlement activity" is illegal under international law are incorrect as such a position is at variance with United Nations Resolution 242.
Passed in 1967, Resolution 242 calls for Israel to return "territories" captured during its defensive war of 1967. The words "all" and "the" were proposed by those who advocated a complete return, but the U.S. and Great Britain, which opposed that view, prevailed. Even partial return of captured territories is conditioned on "termination of all claims of belligerency" and "acknowledgment of the sovereignty . . . of every state in the area and their right to live in peace within secure and recognized boundaries free from threats or acts of force." Resolution 242 does not mention the rights of non-states, such as the Palestinian Authority, Hamas or Hezbollah, the latter two of which do not accept the conditions of the resolution. (Nor do Iran and several other states in the region.) . . . .
A Security Council resolution declaring "settlement activity" as "illegitimate" is no better, and no less counterproductive, than a resolution asserting it's illegality. Such phrasing by an authoritative body such as the Security Council is nothing more than semantics. Given the record of animosity toward Israel in the UN and its bodies and the actions and stated intentions of the resolution's proponents, it is clear that a slightly amended text would be used for the same purposes against Israel; to further isolate the Jewish State diplomatically, utilize the UN and other international entities to pressure Israel economically, and ultimately undermine Israel's security.
Indeed.
I cannot tell you how many times a day I see articles and blog posts that take for granted that Israeli towns in Judea and Samaria are 'illegal.' I know all the arguments and I have cited them many times (and have written about them many times on this blog - see here for example). But those first two paragraphs that I quoted from the OU are just about the best succinct summary of the arguments that I've seen. Clip and save them.
I am an Orthodox Jew - some would even call me 'ultra-Orthodox.' Born in Boston, I was a corporate and securities attorney in New York City for seven years before making aliya to Israel in 1991 (I don't look it but I really am that old :-). I have been happily married to the same woman for thirty-five years, and we have eight children (bli ayin hara) ranging in age from 13 to 33 years and nine grandchildren. Four of our children are married! Before I started blogging I was a heavy contributor on a number of email lists and ran an email list called the Matzav from 2000-2004. You can contact me at: IsraelMatzav at gmail dot com
