Monthly Archives: September 2019

Giving Gantz a Chance: what would change?

With Israel going to an election for the second time in five months, what would change for the Israeli citizen by replacing Netanyahu?

While the average Israeli citizen currently appears to care about economic change, the Israeli voter seems to want to examine the Netanyahu government’s reliance on the ultra-orthodox parties where the current suggested lead held by Gantz’s Blue and White may be signalling a backlash against a sector of the Israeli economy with traditionally low participation rates—ultra-Orthodox men.

While, in terms of Knesset seats, Gantz may get over the line, the fact remains that his party has not offered anything substantial in terms of a party platform on the economy.

The reason for this, of course, is that the continuing Arab-Israeli conflict overshadows all else.

Giving Gantz a chance will not change this because, on the day after the election, Hezballah, Hamas and Iran will still be there. The “peace-process” and the 2SS will remain dead in the water, and the PA will continue to hate on Hamas to the satisfaction of the Israelis.

It is difficult to see how Gantz would change the current Israeli strategy of keeping Hamas on a low flame in Gaza while focusing on the more serious threat on the northern border. That then, would count as a “no change” as well despite the name change.

The question of annexation of “west bank” settlements and securing the Jordan Valley may be shelved for the time being, but it is not an issue which will disappear. Quite the opposite, with increasing Israeli frustration at overcrowding, annexation of the settlements in Judea and Samaria would provide living space for millions more Israelis while also putting non-hostile population on the ground in a sensitive border area.

The Arab Joint List is currently crowing about a possible 13 parliamentary seats making it potentially the 3rd largest party in the Knesset. The Arab MKs are allegedly happy to have “anyone but Bibi” but that may be a premature elation if the next PM is the man who was chief of army command in the 2014 Gaza war and who may, in the future, face trial (in absentia??) for alleged war crimes against Arabs in that war. The Arab voter may feel a measure of success in playing her/his part in trying to replace the “right-wing government” of Prime Minister Benjamin Netanyahu, but the Arab street remains deeply dissatisfied with the performance and representation of several of its Arab members of parliament and may revert to (traditional clannish) type by shooting itself in the foot in the days and weeks ahead.

Giving Gantz his chance will also have implications for Israeli reception of trumps peace plan once the numbers after the results have firmed up.

So far, Gantz has remained largely silent on the latest US-sponsored peace plan during his campaign and avoided questions about his favoured solution to the conflict. It is worth remembering that in February 2019, his election campaigns ads talked about “returning” parts of Gaza to the stone ages and that his party’s slogan “Israel before everything” may give Arab Knesset members and his co-rotational PM-elect Yair Lapid, food for thought, not least because Lapid’s Yesh Atid party platform has criticized Israeli settlements in the “west bank” and has advocated a two-state solution to solve the Palestinian issue, issues I believe will cause considerable intraparty discord going forward.

Add to this the challenge Blue and White laid down to Netanyahu’s national security credentials, criticizing him for seeking temporary agreements with Hamas rather than destroying the group in the Gaza Strip, and you have an unlikely coalition of Lapid and Gantz at professedly polar ends of a workable strategy in the continuing Arab-Israeli conflict.

It would not be reasonable to suggest at this stage that Gantz will nix the American peace initiative which has so far been rejected out of hand by the PA, and this will put him immediately on a combative path with the Arab “anyone but Bibi” bloc as well as the more left-wing elements in his newly-formed party.

Between Gantz and Lapid, Yair Lapid would be the weak link of the two. Gantz has avoided meaningful scrutiny of any kind by opting to be a small target by shutting his mouth. Lapid on the other hand seems to find it more challenging to control himself. As evidence, I offer Yair Rosenberg’s Tablet quote from  Lapid’s desire to teach Israelis to understand American Jews: “Anytime I have something to think about, I always do the same thing,” Lapid says. “I fly somewhere…”

For me, this does not augur well. Real politics will not allow you to accrue frequent flyer points at will.

But, these are early “days” yet – hours actually; and there are significant question marks about what a new government will do about the recently (narrowly) passed nation-state law, not to mention that there is a better than average chance that a national unity government (Lieberman’s baby) could well lose focus and direction given the “robust” nature of Israeli politics……..

With Gantz and Lapid scheduled to dance in and out of the PMship, the latest 2019 election results might well become a case of Gantzing the right away.

All the same, no matter the eventual outcome, the ancient Chinese curse “May you live in interesting times” is currently front and centre in the State of Israel.

 

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Israel annexing the Jordan Valley: is that even legal?

Jordan Valley

A country’s borders are determined in accordance with the borders of the previous legal political entity in that area. In Judea and Samaria, that entity was the British Mandate whose borders of the stretched from the Mediterranean Sea to the Jordan River (Kontorovich, 2018).

Less than 24 hours after Israel declared its independence on May 15 1948 after the British absconded in confusion, the regular armies of Egypt, Jordan, Syria, Lebanon, and Iraq invaded the country.

Here are the borders of the Jewish state, nicknamed the “Auschwitz borders”, per the 1947 Partition Plan which the Jews accepted:

UN-Partition-Plan

The fighting lasted some 15 months and claimed over 6,000 Israeli lives (nearly one percent of the country’s Jewish population at the time; 60,000 Jewish lives in 2019 numbers….).

By early 1949, an armistice was agreed upon and Israel’s borders looked like this:

map-armistice

It should not be forgotten that the defeated Arabs demanded that this armistice line (the “Green Line”) be recognised as a military line ( could the Arabs possibly have been contemplating further military violence back in 1949????) and should not prejudice ultimate political settlement between the the Jews and and the Arabs (shades of Oslo accord 50 years later….).

Needless to say, “Palestinian” Arabs played no part in this scenario, and there was, of course, no mention of a “Palestinian” “state” in the agreement…..

Nevertheless, the map above shows that Egypt illegally occupied land slated for the (undeclared) second Arab state, and Jordan occupied Judea and Samaria, land also slated for the (undeclared) Arab state in addition to Transjordan.

Between 1949-1967, the ICRC’s Hague Regulations/ 4th Geneva Convention seemed to have no problem with either Egypt or Jordan’s disregard of Article 42 of the said 1907 Hague Regulations where Article 42 of the Regulations, falling under a category titled, “Military Authority Over the Territory of the Hostile State” stated that land taken in war was illegally occupied.

In other words, the ICRC, which was quick to brand Israel’s acquisition of the territory in 1967 as an “occupation,” made no such appellation during the 19 years of illegal Jordanian rule.

That land only became “occupied” when Israel reclaimed the territory in the 1967 Six Day War!

D17208_1

To clarify, the 1949 armistice – and the armistice line it established – was breached by Jordan in 1967 when it attacked Israel. In legal terms, it then no longer existed.

In the course of fighting a defensive war, Israel freed Judea and Samaria and eastern Jerusalem from an illegal Jordanian occupation .

Israel could not be an “occupier” in that Land, as 1) it was part of the original Mandate land, 2) the doctrine of customary international law in Uti Possidetis Juris states that emerging states presumptively inherit their pre-independence administrative boundaries, and 3) there was no legitimate sovereign in the land before Israel moved in ( Jordan was illegitimate and nobody had heard of the ancient “Palestinians”….).

With regard to uti possidetis doctrine, it is interesting that with the exception of the Jewish State of Israel, such a concept of international law regarding new states was applied absolutely without ANY issues to other countries.

As a rule of customary international law, it is applied to all cases of state formation, from decolonization in Africa to the collapse of the Soviet Union to the separation of Czechoslovakia. Moreover, the doctrine trumps claims of self-determination, and any other kind of equitable objection to the former administrative boundaries.Thus, for example, the borders of Lebanon are the borders of the French Mandate over Lebanon, whether that state is largely Christian, as originally intended, or Shiite or Sunni. The borders of Jordan are the mandatory borders whether the state is Hashemite, Palestinian or otherwise (Kontorovich, 2016).

So, with regard to Israel’s currently proposed annexation of the settlements in the Jordan Valley, there should be no issue with any possible “criminality” re the ICC as Bob (Jerusalem Post, 11 September, 2019) has stated, because the ex iniuria principle [unjust acts cannot create law] means that Jordan has never had any legal title in the West Bank, nor does any other state even claim such title. This because, as explained above, where the prior holder of territory had seized that territory unlawfully, the state which subsequently takes that territory in the lawful exercise of self-defense has, against that prior holder, better title. And because there was never any mention of a “Palestinian state” or “people”, Israel remained committed to the principle ensconced in UN res 242 (and reaffirmed in UN Security Council Resolution 338 of 1973), that it was the right of every state in the area to “live in peace within secure and recognized boundaries free from threats or acts of force”.

As Prof. Eugene Rostow, former US undersecretary of state for political affairs, wrote in 1991: “The Jewish right of settlement in the area is equivalent in every way to the right of the local population to live there.”

Currently, Israel is engaged in an armed conflict short of war in Judea and Samaria.

This is not a civilian disturbance or a demonstration or a riot.  This includes live-fire attacks on a significant scale, both quantitatively and geographically—around 2,700 such attacks over the entire area of the West Bank. The attacks are carried out by a well-armed and organised militia, under the command and encouragement of the Palestinian political establishment, operating from areas outside Israeli control.

In repulsing those attacks, Israel has acted within the parameters of Article 51 of the UN Charter. Article 51 of the UN Charter clearly recognizes “the inherent right of individual or collective self-defence” by anyone. That is, the language of Article 51 does not identify or stipulate the kind of aggressor or aggressors against whom this right of self-defence can be exercised … and certainly does not limit the right to self-defence to attacks by States!

Organisations like the ICJ/UN ignore repeated acts of terrorism from ‘Palestine’ because they conveniently posit that they emanate from “non-State” entities (ie because Israel does not claim that the attacks by Palestinian terrorists against it are attributable to a foreign “State,” it loses its right to act in self-defence.…). However, Article 51 of the UN Charter is quite clear: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations…”

The ICJ/UN also biases its deliberations against Israel in Judea by ignoring the fact that Palestinian warfare is “Strictly regulated by the customs and provisions of the law of armed conflict, referred to here as international humanitarian law (IHL)” as well as by ignoring the Palestinian Authority (PA) violations of their assumed responsibility, such as the Oslo Accords, that required the Palestinians to abide by internationally recognized human rights standards.

Israel’s right to self-defence under Article 51 cannot be more apparent according to both international humanitarian law and the ‘Oslo Accord.’

I would like here to add that Article 5, paragraph 3, of UN GA Resolution 3314 support the case to annex the Jordan Valley to minimise aggression and violence from Palestinian terrorists. It states that “No territorial acquisition or special advantage resulting from aggression is or shall be recognized as lawful (italics mine).”

Clearly, Israel in Judea and Samaria today is not the consequence of Israeli aggression against the Palestinians or the Arab League. Arab countries acted aggressively against Israel in 1948 and 1967. Israel was not the aggressor in either the 1948 War of Independence or in the 1967 Six-Day War.

Israel is engaged in an armed conflict short of war in Judea and Samaria, though it is not one of Israel’s making or choosing.

It should be remembered that in Oslo (1993), the stated goal of the Accord was a “permanent status” agreement to be achieved via bilateral negotiations. It said nothing about a Palestinian state.

It was understood that the issue of Israel “settlements” in Judea and Samaria would be resolved in the final negotiations, that is, there was no prohibition on Israeli building. This was ratified in 1995 when Oslo II was signed.

Oslo II established Areas A (under full PA administration), B (PA civil administration and Israeli military administration), and C (under full Israeli administration) in Judea and Samaria. Thus, as a result of these divisions, Israeli building was restricted to Area C, but that is where all the “settlements” are located in any event and is the bulk of the territory that Benyamin Netanyahu speaks of applying Israeli sovereignty to.

Israel should annex/ apply sovereignty/apply Israeli law (take your pick, the outcome is mostly the same despite semantic differences…) to Israeli settlements in the Jordan Valley because, in line with UNGA Resolution 2625, Israel’s presence in Judea is lawful per the interpretation of Article 51 of the UN’s own Charter because illegal Arab aggression against the territorial integrity, political independence civilian security of Israel cannot be rewarded.

Palestinian terrorism is an act of aggression. Self defense should be used against all such perpetrators whoever they are.

There is absolutely no need for Israel to continue to face Arab terror and continual violence over 71 years and lack the right to appropriate self-defense.

Article 3(a) of UN Resolution 3314 clearly covers aggression emanating from the Palestinian Authority, an internationally recognized autonomous, national political entity established by international treaty – the Oslo Accords. Moreover, Article 3(g) cites specifically that this includes:

“The sending by or on behalf of a State of armed hands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein.”

Palestinian terrorist cells, with command centres and support in places such as Ramallah, Jenin, and Jordan using areas under the civil and security responsibility of the Palestinian Authority as organizational and staging areas to commit terrorist acts, clearly fall within the confines of this Resolution.

Applying Israeli sovereignty to settlements in the Jordan Valley will increase unfettered (by biased lawfare…) Israeli presence to more effectively counter this terror and right a political wrong 71 years in the making.

Let us not forget that contrary to popular opinion, there was no legal decision made in 1947 to ‘partition’ the land called Palestine into a Jewish and an Arab state. There was merely a recommendation by the UN General Assembly (Resolution 181). The Arabs refused to accept this and Judea and Samaria then remained, without change, part of the territory that the original Mandate for Palestine had established for a Jewish homeland.

In line with the understandings contained in Article 51 of the UN Charter and Articles 3 and 5 of Resolution 3314, Israel is within its rights to legally annex territory it has taken in a defensive war for the reasons of protection of its sovereign land and inhabitants I have outlined above.

Shabbat Shalom.