In the wake of a political UNSC resolution on December 23rd 2016 which ruled the Western Wall and other Israeli sites and settlements legally invalid Israeli territory (FWIW, legally the UNSC hasn’t a leg to stand on…) and which exhorts other nations to boycott any and all commerce with Israeli products produced east of the 1949 Green Line, it is important for Israelis and their supporters to cut to the chase.
In the first instance it is important to recognize that though the U.N. Charter is considered a “law-making treaty”, the United Nations itself is not an international legislature that can make laws or pass legislations.
With that out of the way, and in relation to 2334’s ruling that Israeli settlements east of the green Line are legally invalid (they’re not…), legal scholars state: “Because of the ex iniuria principle [unjust acts cannot create law], Jordan never had nor now has any legal title in the West Bank, nor does any other state even claim such title.”
To this I add United Nations General Assembly Resolution 181 (II) Future Government of Palestine which aimed to establish two states within Mandate Palestine.
The Resolution designated the territory described as “the hill country of Samaria and Judea” (including what is now known as the “West Bank”) as part of the proposed ARAB state.
But, aware of Arabs’ past aggressions, Resolution 181, in paragraph C, calls on the Security Council to:
“Determine as a threat to the peace, breach of the peace or act of aggression, in accordance with Article 39 of the Charter, any attempt to alter by force the settlement envisaged by this resolution.”
And so, the following progressions come into play:
- Clearly, with the Jordanian invasion and occupation of “Arab” Judea and Samaria in flagrant disregard of Article 39 of the UN Charter, the ones who sought to alter the settlement envisioned in Resolution 181 by force, were the Arabs who threatened bloodshed if the United Nations was to adopt the Resolution.
- Judea and Samaria were NEVER intended to be part of Jordan which invaded it in 1948.
- Until the second military defeat of Arab armies by a numerically inferior Israel in 1967, no Arab nation or group recognized or claimed the existence of an independent Palestinian nationality or ethnicity.
- Resolution 181 itself, which partitioned what was left of the mandate into an Arab and a Jewish state, was declared dead by the UN in July 30, 1949 when it stated that:
“The Arabs rejected the United Nations Partition Plan so that any comment of theirs did not specifically concern the status of the Arab section of Palestine under partition but rather rejected the scheme in its entirety.”
By the time armistice agreements were reached in 1949 between Israel and its immediate Arab neighbors (Egypt, Lebanon, Syria and Trans-Jordan) Resolution 181 had become irrelevant, and the armistice agreements needed to address new realities created by the war.
- This meant that when, in the late 1990s, more than 50 years after Resolution 181 was rejected by the Arab world, Arab leaders suddenly recommended to the General Assembly that UN Resolution 181 be resurrected as the basis for a peace agreement, there was no foundation for such a notion because even the UN International Court of Justice (ICJ) uses the term “unbalanced” in describing the reason for Arab rejectionism of Resolution 181. This despite the fact that 77% of the area of the original Mandate for the Jews was excised in 1922 to create a fourth (Lebanon, Syria, Iraq) Arab state –Trans-Jordan (today Jordan)….
- In stating, on 23rd December 2106, and in invoking Article 49 of the Fourth Geneva Convention of 1949, that Israeli settlement east of the Green Line was “legally invalid” the UNSC was in contradiction of that same Article which stated:
“Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive. Nevertheless, the Occupying Power may undertake total or partial evacuation of a given area if the security of the population or imperative military reasons so demand.” [emphasis mine]
Article 49 is thus simply not applicable. Even if it were, it may be added that the facts of recent voluntary settlements seem not to be caught by the intent of Article 49, which was, rather, directed at the forced transfer of the belligerent’s inhabitants to the occupied territory, or the displacement of the local inhabitants for other than security reasons. This has implications for the legal challenge to UNSC if Bensouda of the ICJ decides to instigate a full investigation where Israel is charged with war crimes under the aegis of this Article.
Further, the UNSC Resolution 2334 ignores the fact that Israel and the Arabs agreed in the 1995 Interim Agreement, signed and witnessed by the U.S., the EU, Egypt, Jordan, Russia, and Norway, on a division of their respective jurisdictions in the West Bank into areas A and B (Palestinian jurisdiction) and area C (Israeli jurisdiction). They defined the respective powers and responsibilities of each side in the areas they control.
Israel’s powers and responsibilities in Area C include all aspects regarding its settlements – all this pending the outcome of the Permanent Status negotiations per 242.
This division was accepted and agreed upon by the Palestinians, who cannot now invoke the Geneva Convention regime in order to bypass their acceptance of the Interim Agreement or their and the international community’s acknowledgement of that agreement’s relevance and continued validity.
For what it’s worth, where the decision was taken (and agreed to by the “Palestinians”) to break west bank into areas A, B and C, the breakdown was effected thus:
92% of Palestinians live in PA administered Areas A and B. Less than 2% live in Israeli administered Area C. That is, Palestinians have communities on 40% of the west bank; while 60% of the west bank is virtually empty.
As the Washington Post put it at the time:
“Following the 1993 Oslo accords, Prime Minister Netanyahu’s government, like several before it, limited building almost entirely to areas that both sides expect Israel to annex through territorial swaps in an eventual settlement per Resolution 242. Almost all of the Jewish settlers live on only four percent of the West Bank, the sector that Israel has been seeking to annex as part of a peace plan that was first presented twelve years ago.”
To return, there is only one International law concerning Israeli settlement that is binding and has never been superseded. The League of Nations, on July 24th, 1922, established the Mandate for Palestine, by unanimous vote, which included two Islamic states, Persia and Albania. Ratifying the 1922 agreement which has never been legally altered or abrogated, and which thus makes made it legally binding under international law it states:
‘Under this settlement, the whole of Palestine on both sides of the Jordan was reserved exclusively for the Jewish People as the Jewish National Home, in recognition of their historical connection with that country, dating from the Patriarchal Period … The Palestine aspect of the global settlement [is] recorded in three basic documents that led to the founding of the modern State of Israel: …’
In other words, recognition was “… given to the historical connection of the Jewish people with Palestine and to the grounds for reconstituting their national home in that country….”
That the British then unilaterally detached three fourths of the Palestine Mandate and created Trans Jordan, which was only for Arabs and banned to Jews is the subject of a whole different story.
In light of this, anyone who sees Israel as an occupier of foreign land has to argue either that the League of Nations Mandate was illegal or that Jewish settlement became illegal when Jordan invaded and occupied it. No one ever argued for the former, the illegality of the Mandate, and the latter is legally absurd and morally dubious.
United Nations Security Council Resolution 2334 got it wrong historically, legally and morally.
The Land of Israel, in its entirety, is NOT, to my thinking, an eternal gift from this or that god.
The Land of Israel belongs to the Jewish Nation through historical reference to international law codified in the UN Charter and two international treaties.
Israel’s international “birth certificate” was validated through uninterrupted Jewish settlement from the time of Joshua onward in the Land of Israel in the area known as Judea (aka the West Bank of the River Jordan…).
It was validated by three ancient Biblical [historicoreligious] texts; by the Balfour Declaration of 1917; by the San Remo Resolution of 1920; by the League of Nations Mandate, which incorporated the Balfour Declaration; the United Nations partition resolution of 1947; Israel’s admission to the UN in 1949; the recognition of Israel by most other states; and, most of all, the society created by Israel’s people in decades of thriving, dynamic national existence.
UNSC Resolution 2334 is not the end-point of the deliberations of a peak peace-seeking body professing protection of human rights of a “disposessed” “people”.
Rather, it is just the beginning of a process which will now scrutinize the mandate of the United Nations and its legitimacy.
This because UNSC 2334 remains testament to an Islamic cartel, to anti-Israel NGO’s, a petulant, ill-educated American administration and a profoundly biased mainstream media.
The Green Line of 1949 was never an internationally recognised border, but rather a cease fire line.
The core principle of Resolution 242 of 1967 that state borders between the Jews and the Arabs were to be agreed upon thru negotiations, has never been abrogated.
Professor Julius Stone put it best when he stated:
“Israel’s legitimacy or the legal foundation for its birth does not reside with the United Nations’ Partition Plan, which as a consequence of Arab actions became a dead issue. The State of Israel rests (as do most other states in the world) on assertion of independence by its people and government, on the vindication of that independence by arms against assault by other states, and on the establishment of orderly government within territory under its stable control.”
History will record that President Obama’s risible abstention per UNSC Resolution 2334 will have counted, in the long run, for nothing.
After the Carter administration pulled a similar stunt against Israel at the Security Council in December 1980, the Washington Post published an editorial that does that paper honor today.
“It cannot be denied,” the editors wrote, “that there is a pack and that it hounds Israel shamelessly and that this makes it very serious when the United States joins it.”
That editorial was titled “Joining the Jackals.”