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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Your ‘Historical Detail,’ Our Real Life

A review of a comedy of manners set in England in the 1920s wouldn’t seem the obvious place to look to understand why the average Westerner really has no business trying to tell Israelis how to run their country. But two sentences in this New York Times book review encapsulate the problem perfectly: “Historical details, which abound, are often fascinating. (Who knew that beards interfere with gas masks?)”

I’m sure most New York Times readers don’t know that. But virtually every adult Israeli does, other than a few recent immigrants. That’s because almost every adult Israeli either has a gas mask or did at one time (mine still lives in my closet), and many of us have actually worn them. They were distributed nationwide before the 1991 Gulf War, out of fear that Saddam Hussein would put chemical warheads on the missiles he launched at Israel during the war. Israel, incidentally, was one of only two countries Saddam launched missiles at, even though it wasn’t one of the 39 countries actually waging war on Iraq at the time.

Since then, Israel has run several nationwide campaigns to get people to exchange their old gas masks for new ones. That gas masks have an expiration date is another fascinating “historical” detail most Westerners probably don’t know (the campaigns ended a few years ago, after the implosion of both Iraq and Syria reduced the risk of a chemical attack). Israel also passed a law requiring every new house to include a bomb shelter capable of doubling as a sealed room, since ordinary bomb shelters offer no protection against chemical attacks (yet another little-known “historical” detail). That’s one of many factors contributing to the country’s sky-high housing costs, but not one Israelis complain about. In-house bomb shelters are even more necessary today, given the thousands of rockets launched at Israel by both Hezbollah and Hamas over the last 10 to 15 years.

Even Israelis who were children in 1991 undoubtedly remember being woken by sirens in the middle of the night, rushing to makeshift sealed rooms (heavy-duty plastic wrap, tape and damp towels), putting on their masks and sitting for hours waiting for the all-clear. The adults also remember being unable to fall asleep at night while awaiting that siren. The chronic sleep deprivation experienced by people under missile bombardment is another little-known historical detail (somehow, it never seems to interest human rights organizations as much as the sleep deprivation of captured terrorists during interrogations).

As for beards, this being Israel, a public battle raged for months in 1990-91 over whether Haredi men, who normally don’t shave for religious reasons, should be given special, more expensive masks that can accommodate beards, or whether they could reasonably be expected to shave, given that in Jewish law, saving a life trumps most other religious precepts. There was even a high-profile court case by a secular bearded man charging discrimination because Haredim got the special masks while he did not (he won).

Of course, there’s no reason why reviewer Susan Coll or any other Westerner should know any of these “historical details.” Thankfully, no Western country has faced the threat of bombardment with chemical warheads, or even conventional rockets, in more than 70 years. The problem is that so many Westerners who share her ignorance feel fully qualified to tell Israel what it should do, despite not knowing the most basic facts about the security challenges it faces.

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