Analysis from Israel

The first relevant document is the 1922 League of Nations Mandate for Palestine. It explicitly allocated all of what is today Israel, the West Bank and Gaza as a “Jewish national home,” stressed that none of this territory could “be ceded or leased to, or in any way placed under the control of, the Government of any foreign Power,” and authorized “close settlement by Jews on the land.” It also allocated what is now Jordan to the Jewish national home, but with an explicit proviso that Britain, the Mandatory power, could “postpone or withhold application” of the Mandate’s terms to that territory if it so chose. No such proviso attached to the rest of the territory; it was awarded to the “Jewish national home” permanently and unconditionally.

After the League of Nations dissolved, the various international guarantees it had conferred were explicitly preserved in Article 80 of the UN Charter. That provision states 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 to which Members of the United Nations may respectively be parties.” Nor did the 1947 Partition Plan revoke this guarantee: It was adopted by the General Assembly, which under the UN’s own rules means it was nonbinding. It could have become a binding international treaty had both Jews and Arabs accepted it, but in fact, the Arabs rejected it.The next major development was UN Security Council 242. As I’ve noted before, this document was explicitly worded to allow Israel to keep parts of the territory it captured in the 1967 Six-Day War:

This resolution purposefully required an Israeli withdrawal only from “territories” captured in 1967, not “the territories” or “all the territories.” As Lord Caradon, the British UN ambassador who drafted 242, explained, “It would have been wrong to demand that Israel return to its positions of June 4, 1967, because those positions were undesirable and artificial.” America’s then UN ambassador, Arthur Goldberg, similarly said the two omitted words “were not accidental …. the resolution speaks of withdrawal from occupied territories without defining the extent of withdrawal.” This was equally clear to the Soviet Union and Arab states, which is why they unsuccessfully pushed to include those extra words.

This wording is also fully consistent with the 1922 Mandate and the Article 80 guarantee. The Security Council undoubtedly expected Israel to cede parts of the West Bank under some future peace deal; land for peace, after all, was the explicit policy of the Israeli government of that time. But by not defining the extent of the withdrawal, the resolution left open the possibility that Israel could satisfy its terms even without ceding an inch of the West Bank, by withdrawing instead from other captured territories. And in fact, Israel gave up over 90 percent of the territory it captured in 1967 just by withdrawing from Sinai in 1982.

Successive international agreements similarly preserve Israel’s claim to territory beyond the 1949 armistice line, aka “the Green Line” or “the pre-1967 border.” For instance, the 1949 armistice agreement with Jordan, which illegally occupied the West Bank and east Jerusalem from 1948-67, states explicitly that “no provision of this Agreement shall in any way prejudice the rights, claims, and positions of either Party hereto in the ultimate peaceful settlement of the Palestine question, the provisions of this Agreement being dictated exclusively by military considerations.” In other words, it fully preserves Israel’s claim to the West Bank. Moreover, it was witnessed by two senior UN officials, with copies sent to three different UN agencies, including the Security Council–the same Security Council that so cavalierly abrogated this UN guarantee last week.

Fast forward to the 1993 Oslo Accord, under which Israel voluntarily gave parts of the West Bank and Gaza to the Palestinians, and you still won’t find any sanctification of the 1949 armistice line. The accord explicitly lists “Jerusalem” and “settlements” as “issues that will be negotiated in the permanent status negotiations,” meaning Israel did not concede its claim to either east Jerusalem or any of the territory on which the settlements sit. This document was formally witnessed by the United States and Russia–two of the countries that blithely voted to abrogate its terms last week.

The 1995 Interim Agreement transferred additional territory to the Palestinians, but once again designated Jerusalem and the settlements as issues to be negotiated in final-status talks, thereby preserving Israel’s claims to them. This agreement also added several other witnesses, including Egypt and the European Union. Egypt is currently a Security Council member, as are three EU countries: France, Spain and Britain (which voted to leave the EU but hasn’t yet done so). So we’re now up to six Security Council members that voted last week to abrogate agreements they witnessed.

Not coincidentally, Resolution 2334 also treats Israel in a way no other UN member has ever been treated. As Eugene Kontorovich and Penny Grunseid wrote three months ago, the UN has never deemed any other state an “occupying power”–not Turkey in northern Cyprus, not Russia in Georgia or Crimea, not Armenia in Azerbaijan, etc. Yet those countries actually are occupying other countries’ territory. Israel, in contrast, is “occupying” territory that never belonged to any other country (no state of “Palestine” ever existed at any point in human history) and to which it has the strongest claim under international law.

In short, Resolution 2334 violates previous League of Nations and Security Council decisions; it violates signed agreements witnessed by the very states that voted for it; it violates a fundamental principle of all law by setting one standard for Israel and another for the rest of the world. As such, there’s only one possible way for anyone who actually cares about “international law” to treat it–as having “no legal validity” whatsoever.

Originally published in Commentary on December 29, 2016

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How a Changing American Liberalism Is Pulling American Jews away From Israel

In his essay “Why Many American Jews are Becoming Indifferent or Even Hostile to Israel,” Daniel Gordis lists, as key sources of tension, four major differences between the American and the Israeli political projects. His analysis strikes me as largely accurate, yet I think he misses something important by treating the differences as longstanding and perhaps even inherent. In fact, most are of recent vintage, and there is nothing inevitable or intractable about them. They are the product, first, of dramatic changes in the tenets of political liberalism, and second, of a collective decision by many American Jews to follow the new liberalism wherever it leads—even when it contradicts longstanding axioms of both American politics and traditional Judaism.

Take, for instance, the issue of universalism versus particularism. It’s true, as Gordis notes, that unlike Israel, America was not founded to serve a particular ethnic group. Nevertheless, throughout most of its history, America has viewed itself and functioned as a nation-state. Thus, despite promoting supranational projects like the European Union, which entail forfeitures of sovereignty, America has shunned any such project for itself, preferring jealously to preserve its own sovereignty. This preference traces straight back to the founders’ distrust of “entangling alliances.” Even today, there is bipartisan agreement that America’s first responsibility is to itself, whether or not the “international community” agrees; that’s why even a thoroughly liberal president like Barack Obama didn’t hesitate to launch strikes against anti-American terrorists worldwide without waiting for UN approval—something few European countries would deem thinkable.

Of course, the agreement isn’t wall-to-wall. In recent decades a vocal subset of American liberals, mostly housed in the left wing of the Democratic party, has come to believe that—in the words of Walter Hallstein, first president of the European Commission—”the system of sovereign nation-states has failed.” As perhaps inevitable corollaries of this belief, they argue that national decisions require “global legitimacy,” and that one’s fellow citizens have no more claim on one’s allegiance than do citizens of other countries.

Princeton University, my alma mater, exemplifies this evolution. When I graduated in 1987, the university’s motto was “Princeton in the nation’s service,” which nobody considered problematic. A decade later, the idea that a university should dedicate itself to serving its own country in particular had become unacceptable in advanced liberal circles. And so, in 1996, the motto was changed to “Princeton in the nation’s service and in the service of all nations.” Two decades later, even this was deemed too particularistic; last year, the university’s trustees recommended a new version: “Princeton in the nation’s service and the service of humanity.”

The change is hardly trivial. Americans who view their country as a nation-state, even if not the state of a particular ethnic group, have no trouble understanding why, when Israeli and Palestinian interests clash, Israel puts its own interests first: why it is reluctant to cede more territory to Palestinians when every previous such cession has massively increased terror, or ready to fight wars to stop rocket fire on its civilian population. Only for liberals who believe that countries have no right to prioritize their own citizens over other human beings are such decisions unacceptable.

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