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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In Europe, Israel needs a bottom-up approach to diplomacy

For years, I considered Europe a lost cause from Israel’s perspective and decried the Israeli Foreign Ministry’s Euro-centric focus, arguing that it should instead devote more effort to places like Africa, Asia and South America, which seemed to offer better prospects for flipping countries into the pro-Israel camp. But the past few years have proven that Europe isn’t hopeless—if Israel changes its traditional modus operandi.

This has been evident, first of all, in the alliances that Prime Minister Benjamin Netanyahu has formed with several countries in eastern and southern Europe, resulting in these countries repeatedly blocking anti-Israel decisions at the European Union level. Previously, Israeli diplomacy had focused overwhelmingly on Western Europe. Netanyahu’s key insight was that conservative, nationalist governments seeking to preserve their own nation-states would have more instinctive sympathy for a Jewish state than the liberal universalists who dominate in Western Europe, and whose goal is to replace nation-states with an ever-closer European union.

But as several recent events show, even Western Europe isn’t a lost cause. The difference is that there, conventional high-level diplomacy won’t work. Rather, the key to change is the fact that most Europeans, like most people everywhere, don’t really care that much about Israel, the Palestinians or their unending conflict. Consequently, small groups of committed activists can exert a disproportionate influence on policy.

For years, this has worked against Israel because the anti-Israel crowd woke up to this fact very early and took full advantage of it. Take, for instance, the 2015 decision to boycott Israel adopted by Britain’s national student union. The union represents some 7 million students, but its executive council passed the decision by a vote of 19-12. Or consider the academic boycott of Israel approved in 2006 by Britain’s National Association of Teachers in Further and Higher Education (which no longer exists, having merged into a larger union). The association had some 67,000 members at the time, but only 198 bothered to vote, of whom 109 voted in favor.

Yet it turns out pro-Israel activists can use the same tactics, as in last week’s approval of a resolution saying anti-Zionism is anti-Semitism by the lower house of France’s parliament. The resolution passed 154-72, meaning that fewer than 40 percent of the National Assembly’s 577 deputies bothered to vote, even though 550 deputies were present earlier in the day to vote on the social security budget. In other words, most deputies simply didn’t care about this issue, which meant that passing the resolution required convincing only about a quarter of the house.

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