Monthly Archives: February 2020

Trump’s Deal of the Century: Deal or No Deal?

Definitely a Deal!

Mahmoud Abbas rejected Trump’s peace plan the moment after it was declared. The Guardian newspaper commented that the plan flagrantly disregarded “…Palestinian aspirations of freedom and sovereignty.” Other commentators bemoaned the fact the Palestinians were not even at the White House unveiling ceremony.

U.N. Secretary-General Antonio Guterres warned Tuesday that “a wind of madness is sweeping the globe,” where legally binding U.N. Security Council resolutions “are being disrespected before the ink is even dry.”

The more harsh critics of peace in the Levant even stated that the peace deal was an attempt to completely undermine international law, a theme highlighted by the High Rep of the EU, Josep Borrell, who threatened that aspects of the Trump plan, “if implemented, could not pass unchallenged.” It should be noted that Borrell’s position does not represent all echelons of the EU as a body and is unlikely to be adopted wholesale by that body.

The Arab League as Hostage to Ramallah

Writing in an op-ed generally supportive of Abbas and Palestine in the 29 January edition of the BBC News, Jeremy Bowen states that “Palestinian negotiators say they made huge concessions, not least accepting Israel’s existence in around 78% of their historic homeland.”

While, today, Abbas is working on extracting a condemnation of the peace deal from the UN, an unlikely scenario, Saudi Arabia, Egypt, Oman, Qatar and the UAE have welcomed the peace plan in typical style by both supporting the deal in Washington and then promising their home media they would never abandon the Palestinian right to a sovereign state between the river and the sea.

For in actual fact, because Saudi Arabia, Egypt, Oman, Qatar and the UAE can’t have it both ways, and because the Hamas and PLO charters have never been changed, Palestinian sovereignty and nationhood will, for them, only be achieved by the removal of Israel as a Jewish state.

Of course, Saudi Arabia, Egypt, Qatar and the UAE as well as other Muslim majority states now realise that after decades of creating a fiction of a new Arab nation which just happened to be wherever Israel controlled territory, Israel could actually be useful to them economically, medically and in national security terms.

The only problem was that Abbas, due to the fiction created for the PLO and Arafat by the Arab League and its Russian “advisors’ in 1964, Mahmoud Abbas holds a veto over their foreign policy. As Abramson nicely puts it: “[They] can’t pursue a strategic relationship that would help strengthen [their] regime, secure [their] country, improve the lives of [their] citizens, and promote regional stability because Mahmoud Abbas and the PLO are against it.”

And so, the Palestinian rejection of a plan they haven’t seen, nor been willing to be a part of, allows former Al Jazeera presenter and current Deputy Director of the Arab American Institute, Omar Baddar to state that he interprets that Resolution 242 insists that “…Israel is obligated to withdraw fully from the (emphasis mine) occupied Palestinian territory; that is, all the West Bank, the Gaza Strip and East Jerusalem.” Further, he admonished that the deal infantilises Palestinians and underscores as “journalistic negligence”, increased media trashing of the Trump plan to give Palestinians land for a state comparable in size to the territory of the West Bank and Gaza pre-1967, including 30% of Area C which is under legal Israeli administration.

And that brings us back to Baddar’s claim citing Resolution 242 that Israel undertook to withdraw fully from the occupied Palestinian territory.

What UNSC Resolution 242 does not say

As somebody who follows closely Israel’s legal position vis a vis the Arab Israeli conflict, it is important to note here the elements that are not mentioned in Resolution 242.

  • The resolution does not speak of a Palestinian people or a Palestinian state.
  • It does not mention Jerusalem.
  • The resolution does not refer to a so-called right of return for the Palestinians. It speaks of a “just settlement of the refugee problem,” without even characterizing it as a specifically Palestinian refugee problem.
  • It does not refer to direct negotiations; that subject was taboo for the Arabs in 1967 following the ongoing Khartoum refusal and the 3 Nos….

For pro-Palestinians like Baddar, the central argument has been that Resolution 242 calls for “land for peace” — for Israel’s total withdrawal from the territories captured by it in June 1967, in return for peace.

If Baddar was a responsible or nuanced commentator, he would acknowledge the following:

  1. nowhere in the resolution does the phrase “land for peace” occur.
  2. The Resolution never once calls for full Israeli withdrawal from the territories in return for a full peace.
  3. Resolution 242 demands the right of every state in the region to live in peace within secure and recognized boundaries
  4. withdrawal of Israel armed forces from territories captured in the 1967 war [Note the purposeful omission of the definite article “the” in the resolution)
  5. the inadmissibility of acquisition of territory by war

Legal implications of Resolution 242

Recognised borders

Logically and legally, Resolution 242 can only be correctly interpreted if the three components in points 3-5 are read together with a view to reconciling them with one another.

What proponents of UNSCR 242 conveniently ignore are that Israel’s pre-1967 armistice demarcation lines met neither of the specifications set out in point 3 above; they were neither “secure,” and “recognized,” nor were they “boundaries. They were merely armistice demarcation as reinforced by a statement made by Jordanian Ambassador El-Farra in the UN Security Council only a few days before the outbreak of the Six-Day War when Jordan lost what they had acquired illegally in 1948:

“There is an Armistice Agreement. The agreement did not fix boundaries; […] Thus I know of no boundary; I know of a situation frozen by an Armistice Agreement.”

Complete withdrawal

For non-legal commentators like Baddar, perpetuating the falsehood that Resolution 242 requires the total withdrawal of Israel from all the territories captured in June 1967 is understandable if, as is often the case in the mass/popular media, inaccurate.

In actual fact, article 1(i) of the resolution calls for the “withdrawal of Israeli armed forces from territories occupied in the recent conflict.” The article was carefully drafted in English by its British sponsors, in consultation with the U.S. delegation. It deliberately omitted the definite article (the term used is “withdrawal from territories” rather than “withdrawal from the territories”)

Despite the vehement opposition by the Arabs and their Soviet advisors regarding the omission of the definite article “the”, less than twenty-four hours before the resolution was adopted, then Soviet Premier Alexei Kosygin sent a letter to U.S. President Lyndon Johnson demanding that the resolution explicitly state that Israel be called upon to withdraw to its pre-war positions. Johnson replied that the text was balanced and no changes could be introduced at that stage.

No changes were ever made since.

And, to make assurance double sure, two years later, British Foreign Secretary Michael Stewart was asked if the resolution called upon Israel to withdraw from all the territories. He replied to the questioner: “No Sir, this is not the phrase used in the resolution. The resolution speaks of secure and recognized boundaries. Those words must be read concurrently with the statement on withdrawal.”

Acquisition of territory by war

The former president of the International Court of Justice (ICJ), Dame Rosalyn Higgins stated (1970) that “…there is nothing either in the UN Charter or general international law which leads one to suppose that military occupation, pending a peace treaty, (emphasis added) is illegal….The law of military occupation…remains entirely relevant, and until such time as the Arab nations agree to negotiate a peace treaty, Israel is in legal terms entitled to remain in the territories that she now holds.” (Rosalyn Higgins, “The Place of International Law in the Settlement of Disputes by the Security Council,” Am. J. Int’l L. (1964), 1, 7–8.)

Moreover, with specific regard to Judea and Samaria, Israel’s rights there exceed those of a mere military occupant.

In 1948 five Arab armies invaded Palestine with the declared purpose of crushing by military force, the new State of Israel in violation of Article 2(4) of the UN Charter.

As former judge and ICJ president Schwebel stated (1970): “…Egypt’s seizure of the Gaza Strip, and Jordan’s seizure and subsequent annexation of the West Bank and the Old City of Jerusalem, were unlawful… [and that] the Egyptian occupation of Gaza, and the Jordanian annexation of the West Bank and [the Old City of] Jerusalem, could not vest in Egypt and Jordan lawful control, whether as Occupying Power or sovereign” (Stephen M. Shwebel, “What Weight to Conquest?” Am. J. Int’l.L. 64 (1970).

If only for this considered legal opinion in international law, the myth of “sovereign” “Palestinian” land is a nonsense rivalling that of the myth of the “indigenous Palestinians”.

In other words, the legal standing of Israel in these territories is therefore that of a state, which, as a result of measures of self-defense taken against forces that had unlawfully entered Palestinian territory with a view to crushing it, is lawfully in control of territories in respect of which no other state can show better title. Israel has a priority claim of right, and since they were not taken from any other sovereign state, the Hague Regulations 1899 and 1907 and the Fourth Geneva Convention do not apply to them.

In order to explain this clearly, it is important to state that Israel’s position regarding the non-applicability of the Hague Regulations is legally founded. Since Jordan’s annexation of Jerusalem and the West Bank in 1950 did not gain international recognition and Jordan’s occupation was achieved by illegal use of force (not in self-defense, i.e., in contravention of international law), Jordan was not a legitimate sovereign power in that territory. The Regulations concerning occupied territories (Regulations 42-56) apply, according to the text of the Convention, to territories seized from a legitimate sovereign. Therefore, Israel’s position that the provisions of the Regulations do not apply to the West Bank is well-founded.

Again here, legally, the claim of the Palestinians that Israel has appropriated their “sovereign” land is both a lie and unsupported in international law.

In this context, the Trump plan has adhered to the letter of international law with regard to recognising Jerusalem as Israel’s undivided capital, to legal interpretations by ICJ judges of UNSC Resolution 242, by vindication from the actual writers of 242 as to the intended meaning of their words and to a recognition of facts on the ground that the biggest impediment to peace in the region is a (successful) Arab propaganda initiative that Israel occupies sovereign “Palestinian” land (there was never any such thing) as well as the decades of unaccountability both fiscally and politically, permitted largely migrant Arabs and their leaders in Gaza and Ramallah who wish now to be known as Palestinians.

In the past, Palestinians could generally count on the Arab countries — not just to openly fight wars for their cause, as they did in 1948 and 1967, but to stand firmly behind them, accepting what the Palestinians accept and rejecting what the Palestinians reject. This is no longer the case.

So although the Palestinians were still able to rally the Arab League — a group already a shadow of its former powerful self — to join in their rejection of Trump’s plan, their isolation in the Arab world is growing more apparent.

But What About the Refugees?

Nowhere is the myth of “Palestine’ and its “Palestinian refugees” more apparent than in passion the question of refugees engenders.

By Israeli estimates in 1948, the number of Arab refugees was held to be around 530,000. Those Arab refugees received support and assistance from the UN Relief and Works Agency for Palestine Refugees in the Near East (UNRWA), established by the UN General Assembly in 1949.

By 2000, UNRWA, the major employer in Gaza, stated that the number of “Palestinian” Arab refugees was now 3.5 million and that the UN more broadly supports 5 million Palestinian refugees….. This number included those who had been born in neighbouring states, their spouses from those states, their children and grandchildren.

UNRWA claims to be working within UN guidelines and as codified by the 1951–1967 Convention Relating to the Status of Refugees.

However, the 1951–1967 Convention Relating to the Status of Refugees does not mention in this definition, descendants or spouse of 1948 Arab refugees. That is a uniquely Palestinian UNRWA interpretation of the ruling geared, as it is, to overrunning the Jewish state demographically. Moreover, the convention ceases to apply to a person who, inter alia, “has acquired a new nationality, and enjoys the protection of the country of his new nationality.

In the context of general international law one must also observe that humanitarian law conventions (such as the 1949 Geneva Conventions for the Protection of Victims of War) have not dealt with a right of return.

The best explication we have regarding Palestinian refugees is General Assembly Resolution 194(III) of December 11, 1948, Paragraph 11 which states “…The General Assembly…resolves that the refugees wishing to return to their homes and live at peace with their neighbors (emphasis added) should be permitted to do so at the earliest practicable date…”

In 72 years of the Arab Israeli conflict, living at peace with their neighbours has never been the view of the Palestinian leadership in either Ramallah or Gaza. It still isn’t.

What the Palestinian leadership has created, since the late 60s, through the help of the Arab League and its Soviet advisors, is a lie about sovereignty and indigeneity solely as a mechanism to delegitimise the existence of a Jewish state.

That lie is presented as fact in its schools and the hatred for a “sovereign” loss that never was and an “indigeneity” history has no record of.

No Palestinian state, nation or country has ever been a High Contracting Party per the terms of reference of the 4th Geneva Convention. The Jordanian and Egyptian territorial takeovers were illegal in international law. Ramallah has very little in the bank in trying to make any such case in the international courts.

It knows this and has clouded the base issue with claims of generational refugee repatriation (not recognised anywhere else in the world, a return to 1967 borders (there is no such entity) and, when all else has failed, a call by Abbas for the blood of its “martyrs” to free Jerusalem (the ever-reliable “al-aqsa is burning” and religious crusade).

For the Palestinians, 2020 has started just like 1920 ended – marking 100 years of statelessness.

However, Fateh emphasises that “…the people to blame for the tragic plight of the Palestinians are the Arabs and Islamists who have egged them on to hang on to the “all or nothing” strategy that has failed every time it has been invoked.”

Never a truer line was written. Unable to countenance Jewish sovereignty in the region, the Arabs went to war in 1948 to erase it. They failed. As they did in 1967 and 1973, the 1982 Lebanese incursion, the intifadas and the rocket wars.

In 1979, Egypt realised that fighting, losing and regrouping was not a plan. They recognised the Jewish state of Israel and signed the peace and, today, trade with it. The remaining Arab states have not been as forward thinking and have remained locked in pointless antipathy to talk and trade with the State of Israel although that is now slowly changing.

In 1948, the Palestinians were offered far more than they could imagine today, with Jerusalem as an International City under the UN.

From 1948 to 1967, the Arabs controlled East Jerusalem and the West Bank, yet they made no effort to create a Palestinian State. Oslo came and went in an orgy of Israeli blood shed by Arafat’s PLO.

These things are the reality, but absolutely no excuse for the EU and UNRWA and the undereducated opinions of commentators like Baddar to encourage Palestinians in outmoded (failed) peace plans, dangerously inaccurate readings of international law and ossified positions which continue to promulgate the egos of the few over the many.

Donald Trump turned the paradigm for resolving the 100 year Arab Israeli conflict on its head. He offered Ramallah an ultimatum: if you don’t come to the negotiating table, the caravan of those past 100 years will now finally move on without you.

That sounds like a deal no thinking leader who really wants a state for his people could refuse!