DISPUTED TERRITORIES: Forgotten Facts About the West Bank and Gaza Strip February 2003

DISPUTED TERRITORIES:
Forgotten Facts About the West Bank
and Gaza Strip

February 2003

Introduction

In 1967, Israel fought a desperate war of self-defense and despite dire odds, won. As a result, the Jewish State not only survived, it also came into possession of additional lands, including territory that is of vital importance to its security.
The Six Day War and its consequences still affect the Middle East today. A clear understanding of how and why the territories came into Israels possession in 1967 and an awareness of Israel's connection to these areas are essential components of any fair and balanced discussion of their current status. This information has taken on particular importance in light of the current situation and Palestinian attempts to reduce a complex conflict to a single issue - Israel's presence in the West Bank and Gaza Strip.
The Palestinians and their supporters are attempting to promote their cause by channeling every event through the prism of the disputed territories. In doing so, they have succeeded in diverting the discussion away from the relevant facts, rewriting or ignoring history and reinventing international law to suit their aims. These facts must not be forgotten.

Facts
By focusing exclusively on "the occupation," Palestinian spokespersons are obscuring some of the basic facts of the conflict. They never mention why Israel's presence in the disputed territories began or the reasons for the continuation of the conflict, and ignore the historical and legal context of Israel's presence there. Following are four key issues that the Palestinians deliberately and consistently try to conceal:
Disputed, not "Occupied", Territory

The West Bank and Gaza Strip are disputed territories whose status can only be determined through negotiations. Occupied territories are territories captured in war from an established and recognized sovereign. As the West Bank and Gaza Strip were not under the legitimate and recognized sovereignty of any state prior to the Six Day War, they should not be considered occupied territories.

The people of Israel have ancient ties to the territories, as well as a continuous centuries-old presence there. These areas were the cradle of Jewish civilization. Israel has rights in the West Bank and Gaza Strip, rights that the Palestinians deliberately disregard.
Legality of Israel's Presence in the Territories

Despite persistent claims by the Palestinians and their supporters,occupation is not, in and of itself, illegal. It does not violate international law.Rather, international law attempts to regulate situations of occupation through the application of pertinent international conventions and agreements. Therefore, political motivations lie behind the claim that Israel's presence in the territories is illegal. Israel's presence in the territories is not illegal.

Israel's presence in the territories began in 1967 as a direct result of the aggressive actions of Israel's neighbors that forced Israel into a war of self-defense.

UN Security Council Resolution 242, which was adopted following the Six Day War, places obligations on both sides (as does Resolution 338, adopted following the 1973 Yom Kippur War). 242 does not call for unilateral withdrawal from the territories. Despite this, the Palestinians focus exclusively on the call for an Israeli withdrawal, ignoring those clauses that place responsibilities on the other parties to the conflict.

Resolution 242 does not require Israel to withdraw from all the territoriesgained as a result of the 1967 war, as the Arab regimes claim. Instead, the resolution deliberately restricts itself to calling for Israel's withdrawal "from territories" while recognizing the right to live within secure and recognized boundaries.
Terrorism Cannot be Justified

Incessant references by Palestinian spokespersons to "the occupation" are used to delegitimize not only Israel's presence in the territories, but also to justify terrorism.

Terrorism - the intentional, politically motivated use of violence against civilians and other non-combatants - is clearly beyond the pale of international law. Suicide bombings are a crime against humanity, and no political goal can ever justify the use of terrorism.

Palestinian terrorism preceded Israel's presence in the territories. Indeed, the PLO (the Palestinian Liberation Organization) was founded in 1964, three years before the 1967 Six Day War.
Israel's Pursuit of Peace

Israel's presence in the territories continued after 1967 as the Arab regimes refused to negotiate with Israel despite continuous and genuine Israeli offers of peace. For close to a quarter century, the Palestinians refused to abandon terrorism and conduct peaceful negotiations.

Even after the Palestinians decided to join the peace process in the early 1990s, no permanent resolution of the dispute could be reached due to Palestinian terrorism and their unwillingness to reach reasonable compromises.

Israel, as a democracy, has no desire to control the lives or future of the Palestinians. Israel - which has made extensive territorial concessions to the Palestinians since 1993 - has always been willing to make great sacrifices in the name of peace.
The omission of historical facts allows the Palestinians to avoid responsibility for their role both in creating and perpetuating the situation in the territories. Distortions of international law are part and parcel of Palestinian attempts to delegitimize Israel while justifying the unjustifiable - terrorism.

Territories in DisputeInternational Law and Occupation
Palestinian spokespersons and their supporters have expended great efforts to advance their claim that a state of occupation is - by definition - illegal. This ingenuous claim not only ignores international law, but also by its very repetition at every opportunity, attempts to create new international norms.
The claim that any occupation - no matter the reasons for its establishment or its continued existence - is illegal is not consistent with the principles of international law. The international legal system does not outlaw occupation. Rather it uses international conventions and agreements to regulate such situations.
Many states hold onto territory taken in a war - particularly a war of self-defense - until a peace treaty is negotiated. In fact, many situations of dispute exist today around the world in which one side continues to hold territory that another claims. A key difference in the situation regarding the West Bank and Gaza Strip is that Israel has attempted to negotiate a peaceful resolution to the status of these disputed territories ever since they came into Israel's possession.
Claims of illegality are politically motivated as neither international law nor the agreements between Israel and the Palestinian Authority support this baseless allegation.
Jewish Ties to the Territories

	Jewish communities in the Land of   Israel from ancient to modern times

Jews have lived in Judea-Samaria (the West Bank) and Gaza Strip continuously for 4000 years since Biblical times and throughout the centuries since then. Jewish sovereignty there spanned 1000 years and those areas were the cradle of Jewish civilization. Many of the most ancient and holy Jewish sites, including the Cave of the Patriarchs (the burial site of Abraham, Isaac and Jacob), are located in these areas. Jewish communities grew in Gaza during the 11th century and other areas, such as Hebron (where Jews lived until they were massacred in 1929), were inhabited by Jews throughout the four hundred years of Ottoman rule and much before. Additional Jewish communities flourished under the British Mandatory administration that replaced the Ottoman Empire in 1918.
The Palestinians often contend that the Jews are foreign colonizers in territory to which they had no previous connection. Indeed, much of the Arab world considers all of Israel - and not just the disputed territories - as a foreign entity in the region. Such claims disregard the continuous ties of the Jewish people with their age-old homeland and the deep bond of the people of Israel to its land, both in biblical and later periods.
These claims also serve to perpetuate the myth that a Palestinian state existed in the area prior to the establishment of the State of Israel. In fact, no independent Arab or Palestinian state ever existed in the area known as Palestine.
The Jordanian and Egyptian Occupations
The Jewish presence in the West Bank and Gaza Strip ended only with the 1948 War of Independence. Conquering these territories in a war of aggression aimed at destroying the nascent State of Israel, the Jordanians and Egyptians totally eliminated the Jewish presence in the West Bank and Gaza, forbidding Jews to live there and declaring the sale of land to Jews in those areas a capital offense.
It is worth noting that Jordanian and Egyptian rule came about as the result of their illegal invasion of 1948, in open contempt and rejection of UN General Assembly Resolution 181, which would have partitioned the British Mandate territory into a Jewish State and an Arab State. For this reason, the Egyptian and Jordanian seizures of the territories were never recognized by the international community.
The Status of the Territories
The status of the West Bank and Gaza Strip can only be decided by agreement between the parties. During the 1990s, Israel and the Palestinians agreed that the final status of the West Bank and Gaza Strip is not yet resolved and should be decided in peaceful negotiations.
Furthermore, the fact that there were no established sovereigns in the West Bank or Gaza Strip prior to the Six Day War means that the territories should not be viewed as "occupied" by Israel. When territory without an established sovereign comes into the possession of a state with a competing claim - particularly during a war of self-defense - that territory can be considered disputed.

A War of Self-Defense

©GPO  High school students digging air raid trenches in a Tel Aviv suburb (May 1967) in view of Arab calls to annihilate Israel on the eve of the Six Day War.

The fact that Israel fought a war of self-defense in the Six Day War in June 1967 was recognized by the world's democracies at the time. It was that defensive war against Arab aggression that resulted in Israel's taking control of the West Bank and Gaza Strip.
Calls for Annihilation
Prior to the start of the Six Day War, a continuous flow of statements by Arab leaders and official media sources left no doubt as to their intentions - not only did the Arab states intend to attack Israel, they meant to destroy it.

"We intend to open a general assault against Israel. This will be total war. Our basic aim will be to destroy Israel." (Egyptian President Gamel Abdel Nasser, 26 May 1967)

"The sole method we shall apply against Israel is total war, which will result in the extermination of Zionist existence." (Egyptian Radio, "Voice of the Arabs", 18 May 1967)

"I, as a military man, believe that the time has come to enter into a battle of annihilation." (Syrian Defense Minister Hafez al-Assad, 20 May 1967)

"The existence of Israel is an error which must be rectified... Our goal is clear - to wipe Israel off the map." (Iraqi President Abdur Rahman Aref, 31 May 1967)The Arab threats to destroy Israel in the period preceding the war were made when Israel did not control the West Bank and Gaza Strip.
The Threat to Israel's Existence
Given the strength of the opposing armies and the physical size of the country in 1967, Israel had every reason to fear these threats. It was a small state, surrounded by heavily armed and hostile neighbors. In its pre-1967 boundaries, Israel was only 15 kilometers (9 miles) wide at some places. The armies of Israel's enemies in the West Bank and Gaza were stationed a mere 18 km. (11 miles) from Tel Aviv, 35 km. (21 miles) from Haifa, 11 km. (7 miles) from Ashkelon and only meters from Israeli neighborhoods in Jerusalem.
These threats were not empty rhetoric. Hostile actions by Israel's neighbors left little doubt as to either the seriousness of their intent or their ability to carry out a massive assault on Israel.
In the weeks before the war, a coalition of Arab states - including Egypt, Syria, the Hashemite Kingdom of Jordan, Iraq, Algeria and Kuwait - united against Israel. As Egyptian President Nasser said on 30 May 1967, "The armies of Egypt, Jordan, Syria and Lebanon are poised on the borders of Israel...to face the challenge, while standing behind us are the armies of Iraq, Algeria, Kuwait, Sudan and the whole Arab nation.... the critical hour has arrived." War frenzy was sweeping through the Arab world.
Egypt Tightens the Noose
On 15 May 1967, the Egyptians began to move large numbers of troops and armored vehicles into the Sinai Peninsula, ending a ten-year period during which the Sinai was free of hostile forces. While Egyptian troops massed along Israel's border in the south, the Syrian army prepared for war on the Golan Heights in the north. Nasser demanded that the UN Secretary-General withdraw UNEF - the United Nations Emergency Force peacekeepers - from the Sinai, where they had been stationed since 1956. Secretary-General U Thant complied with considerable haste, thus breaking an international promise to Israel. UNEF ceased to function on 19 May, removing the last barrier to the Egyptian war machine. The State of Israel was alone and encircled by armies whose leaders had vowed to bring about its annihilation.
Israel's Defensive Response
In response, Israel began to call up its reserve forces. Having only a small standing army, Israel had to rely on its reservists to repulse any attack. This mobilization of Israel's doctors and teachers, farmers and shopkeepers carried a heavy economic and social burden. Israelis began digging trenches in preparation for aerial attacks and shelling. Yet Israel's leaders chose to wait three long weeks before reacting militarily, in the hope that war could be avoided and a peaceful solution to the crisis could be found.
The Blockade
The situation continued to deteriorate sharply. On 22 May, Egypt blocked the Straits of Tiran, closing off Eilat, Israel's only Red Sea port, to Israeli ships and Israel-bound foreign vessels. Israel was now cut off from trade with Asia and East Africa. Most significantly, Israel was denied access to its main supplier of oil. President Nasser was fully aware that Israel would regard the closure as an act of aggression.
This move violated the right of innocent maritime passage, in clear contradiction of international law. Traditionally, under international law, a blockade is considered an act of war. Moreover, Egypt's actions violated the 1957 declaration of 17 maritime powers at the UN, that stated that Israel had the right of transit through the Straits of Tiran, as well as the 1958 Convention on the Territorial Sea and Contiguous Zone.
The blockade of the Straits of Tiran was a clear-cut act of aggression. No country can stand by while a major port has been arbitrarily and maliciously blockaded, in violation of international law, particularly when vital shipments - including oil - are at stake. Had Israel responded by attacking Egypt immediately after the imposition of the blockade, this measure could only have been regarded as a justified reaction to Egypt's act of war.
Israel Searches for a Diplomatic Solution...
However, despite the blockade, the daily diet of threats and the hostile military activity, Israel continued to wait. Israel's leadership wanted to exhaust every prospect for a diplomatic solution before reacting. Unfortunately, while there was a great deal of international sympathy for Israel's plight, there was little tangible assistance.
...But is Forced to Respond Militarily
Israel was left with few options. It had been surrounded by approximately 465,000 enemy troops, more than 2880 tanks and 810 aircraft. Given its small geographical size and the relative strength of the opposing armies, had Israel waited for the expected invasion to begin before acting, the results could have been catastrophic for its very survival.
Invoking its inherent right of self-defense, a basic tenet of international law that is enshrined in Article 51 of the United Nations Charter, Israel launched a preemptive strike against Egypt on 5 June 1967.
Israel's Message of Peace
Israel had no desire to see the fighting spread to its eastern or northern fronts. Prime Minister Levi Eshkol sent out a message of peace to Israel's neighbors: "We shall not attack any country unless it opens war on us. Even now, when the mortars speak, we have not given up our quest for peace. We strive to repel all menace of terrorism and any danger of aggression to ensure our security and our legitimate rights."
Further Arab Aggression
The Syrians responded by bombardments with artillery fire and with long-range guns.
In the east, Jordan was convinced by Egypt that the planes appearing on the radar screens were Egyptian aircraft on their way to attack Israel, and not Israeli planes returning from a strike on the Egyptian Air Force. On 5 June, Jordan began ground movements and shelling across the armistice lines, including in Jerusalem and on Israel's main airport near Tel Aviv. Despite the attack, Israel sent another message of peace, this time through representatives of the UN. Still, the Jordanian attack persisted.
This may have been one of the most crucial decisions of the war. Had Jordan listened to Israel's messages of peace instead of Egypt's lies, the Hashemite Kingdom could have remained neutral in the conflict, and eastern Jerusalem and the West Bank would have remained in Jordan's possession. However, when the attack on western Jerusalem continued, Israel defended itself and united its capital, divided since 1949. The capture of the Old City of Jerusalem gave Jews access to their holiest sites for the first time in 19 years, while freedom of worship and access to holy sites were now guaranteed to all.

The Post-War Period and Resolution 242Defensible Borders
On 10 June 1967, at the end of six days of fierce fighting in which 776 Israeli soldiers lost their lives, a cease-fire was reached. Previous cease-fire lines were now replaced by new ones - the West Bank of the Jordan River, the Gaza Strip, the Sinai Peninsula and a large part of the Golan Heights had come under Israel's control as a result of the war. Syria could no longer use the Golan Heights to launch artillery bombardments on Israeli homes below. The passage of ships to Israel through the Straits of Tiran was ensured. Israel now had defensible borders, and the imminent threat to its very existence was no longer.
Hopes for Peace
When the Six Day War ended, Israelis believed that a new era was beginning, one that would bring peace to the region. Hoping to translate military gains into a permanent peace, Israel sent out a clear message that it would exchange almost all the territory gained in the war for peace with its neighbors.
Furthermore, Israel gave strong indications of its deep desire to negotiate a solution, including through territorial compromise, by deciding not to annex the West Bank or Gaza Strip. This is important evidence of Israel's intent given both the strategic depth these areas offered and the Jewish people's age-old ties to numerous religious and historical sites, especially in the West Bank.
Arab rejectionism
But Israel's hope for peace was quickly dashed. The Arab states began to rearm and, at the August 1967 Arab League meeting in the Sudan, adopted as their political position "the three nos," principles by which the Arab states were to abide, namely, "no peace with Israel, no recognition of Israel, no negotiations with it." The Khartoum Summit's hard-line position forestalled all chances for peace for years. As Israel's then Foreign Minister Abba Eban said, "This is the first war in history which has ended with the victors suing for peace and the vanquished calling for unconditional surrender."
242: A Misrepresented Resolution
Since 1967, United Nations Security Council Resolution 242 has played a central role in the peace process. It may well be one of the most important UN resolutions regarding the conflict - however, it is also one of the most misrepresented.
The Palestinians often depict the resolution as a simple document whose principal goal is a unilateral and complete Israeli withdrawal from the territories as a precondition for ending the conflict. In reality, the resolution is a balanced and measured instrument whose goal is "the fulfillment of Charter principles" by the "establishment of a just and lasting peace in the Middle East."
"Territories" vs. "The Territories"
As a rule, the Palestinians and their supporters misstate the resolution by claiming that 242 calls for Israel's withdrawal from "all" the territories, although this is neither the language used in the resolution nor the intent of its framers.
Resolution 242 calls upon Israel to withdraw "from territories" occupied in the recent conflict", not "from all the territories" or even "from the territories". The use of the phrase "from territories" was deliberately chosen by the members of the Security Council after extensive study and months of consultations, this despite considerable pressure from the Arab States to include the word "all". As then US Ambassador Arthur Goldberg would explain in 1973, these notable omissions "were not accidental.... the resolution speaks of withdrawal from occupied territories without defining the extent of the withdrawal."
Secure Borders According to 242
It should be noted that Resolution 242 recognizes the need, indeed the right, for "secure and recognized boundaries." By declining to call upon Israel to withdraw to the pre-war lines, the Security Council recognized that the previous borders were indefensible, and that, at the very least, Israel would be justified in retaining those parts of the territories necessary to establish secure borders. As then UK Ambassador Lord Caradon would later state, "It would have been wrong to demand that Israel return to its positions of June 4, 1967, because those positions were undesirable and artificial."
Joint Obligations
The principal UN Security Council resolutions, including 242 (and 338, adopted after the 1973 Yom Kippur War), address all sides of the conflict, and not just Israel. Despite this, Palestinian spokespersons only refer to Israel's responsibilities under the resolution, ignoring joint responsibilities as well as obligations incumbent on the Arab side, although these clauses form an integral part of the resolution. Among the clauses of 242 clearly aimed at the Arab states, or expressing joint obligations, are:

• "a just and lasting peace in which every State in the area can live in security;"
• "termination of all claims or states of belligerency;"
• "respect and acknowledgement of the sovereignty, territorial integrity and political independence of every State in the area;"
• respect and acknowledgement of "their right to live in peace within secure and recognized boundaries free from threats or acts of force;"
• "freedom of navigation through international waterways in the area;"
• "guaranteeing the territorial inviolability and political independence of every State in the area, through measures including the establishment of demilitarized zones."

Clearly Israel was not expected to withdraw without the Arab regimes fulfilling their obligations - principally to renounce the use of force and make peace with Israel - and Israel's withdrawal is certainly not a prerequisite to its fundamental right to live in peace.
Additionally, Resolution 338 - which is invariably coupled with 242 - calls upon the parties to begin negotiations aimed at "establishing a just and durable peace in the Middle East". Taken together, these two resolutions express the Security Council's determination that peace should be reached through non-violent negotiations between the parties.

Terrorism and "the Occupation" Excuse
Palestinian Manipulation of the Term "Occupation"
"Whoever thinks that the intifada broke out because of the despised Sharon's visit to the al-Aqsa Mosque, is wrong.... This intifada was planned in advance, ever since President Arafat's return from the Camp David negotiations, where he turned the table upside down on President Clinton."
   In March 2001, Imad al-Faluji PA Minister of Communications, spoke
   publicly in Lebanon about the premeditated nature of the violence.

Palestinian Terrorism - before 1967 and during the peace process in the mid-90s ©GPO  Ambushed bus from Eilat to Be'er Sheva (17 March 1954) ©GPO  The charred remains of a No. 18 Jerusalem bus after it was blown up by a suicide terrorist bomber at the intersection of Sarei Yisrael and Jaffa Streets (25 February 1996) ©GPO  Jerusalem's Mahane Yehuda Market after the bombing by two Palestinian terrorists (30 July 1997)

The Palestinians are trying to portray the current wave of violence and terrorism as the spontaneous reaction of a frustrated people to the Israeli "occupation" of the West Bank and Gaza Strip. This misrepresentation of the situation ignores the strategic decision made by the Palestinian leadership to abandon negotiations and concentrate on the armed struggle against Israel. It also omits the fact that the Palestinians began to orchestrate the violence that started in September 2000 immediately after they caused the failure of the Camp David peace summit in July of that year.
The claim that "the occupation" caused the wave of violence and terrorism that began in September 2000 soon become the central Palestinian theme. The methodology of Palestinian spokespersons was simple: Answer every question with "the occupation is responsible," say "the occupation caused it" after every act of terrorism. "Occupation" provided them with a simple buzzword that could be used to condemn Israel at every turn and to absolve the Palestinians of responsibility for their every action. But repeating a lie hundreds of times does not make it true.
Incessant Palestinian references to "the occupation" are aimed, in part, at delegitimization of Israel's presence in the territories. Palestinian calls to "end the occupation" are being used to mobilize the international community against Israel. Palestinian leaders have long believed that the application of international pressure on Israel is an important component of their strategy to defeat Israel. They believe they can force Israel, through terrorism, to leave the territories without ending the conflict and without achieving a negotiated peace.
The Palestinians Justify Terrorism
Most abhorrently, the Palestinians use "the occupation" as a justification for the unjustifiable - terrorism. No goal - including ending the so-called occupation - can ever excuse the deliberate slaughter of innocent civilians. Suicide bombings cannot become an acceptable means to induce political change. Targeting children cannot ever be justified.
Palestinian attempts to excuse terrorism by blaming it on "the occupation" are not only morally repugnant, they attempt to corrode the precept that suicide bombings are a crime against humanity. To accept the lie that "the occupation" caused the terrorism helps encourage terrorism itself, while condoning its use is not only immoral but contributes to the perpetuation of the conflict.
The Roots of Palestinian Terrorism
It is not Israel's presence in the territories that caused terrorism. Rather, the violence is fostered by the hatred of Israel, and nurtured by incessant incitement from Palestinian officials and religious leaders.
It should be remembered that Palestinian terrorism predates Israel's presence in the territories. Not only were there endless terrorist attacks on Israeli civilians during the two decades that preceded the Six Day War, they even occurred prior to the 1948 establishment of the State of Israel.
The claim that the 1967 "occupation" of the territories caused Palestinian terrorism is particularly specious coming from PLO members, as the Palestine Liberation Organization was created in 1964, three years before the Six Day War, when the West Bank and Gaza Strip were not under Israeli rule.
Terrorism vs. Efforts for Peace
History demonstrates that Palestinian terrorism is not caused by frustration or the absence of hope for a peaceful solution. Horrific waves of attacks have occurred during periods of major advances in the peace process. Terrorist strikes have often peaked during those times - such as the mid-1990s - when the process has been at its most active and thereby most likely to bring an end to the so-called "occupation."
Claims that Israel's presence in the territories causes terrorism are misleading, as they ignore the history of terrorist attacks against Israel and the countless Israeli offers of peace that were rejected by the Palestinians.
The Palestinians Reject Peace at Camp David

©GPO  Sbarro Restaurant in Jerusalem, after it was blown up by a Palestinian suicide bomber (9 August 2001) ©GPO  Bus No. 960 after it was blown up by a Palestinian suicide bomber, near Yagur junction, Haifa (10 April 2002) ©GPO  The remains of the busblown up by a Palestinian suicide bomber, at Patt junction in Jerusalem (18 June 2002)

In July 2000, the United States hosted a Middle East peace summit designed to address the remaining final-status issues of the Israeli-Palestinian peace process. Israel's willingness to make unprecedented compromises for peace was based on the conviction that only a negotiated settlement could resolve the conflict between the Israelis and the Palestinians.
Unfortunately, the Palestinian leadership was not willing to end the conflict. Not only was it unwilling to compromise on any of the difficult and complicated issues, it was not prepared to present any reasonable proposals of its own.
International Criticism of the Palestinians
The Palestinian leadership came under international criticism for the failure of the Camp David summit, particularly after the US blamed the Palestinians directly. The international community could not comprehend the Palestinians' reasons for rejecting a most sweeping peace offer, that would have given the Palestinians virtually all that they had been ostensibly demanding.
Violence as a Strategy
After "analyzing the political positions following the Camp David summit, and in accordance with what brother Abu Amar [Arafat] said, it became clear to the Fatah movement that the next stage necessitates preparation for confrontation."
    Fatah Central Committee member Sakhr Habash told the PA daily
    newspaper Al-Hayat al-Jadida on 7 December 2000."The only way to impose our conditions is inevitably through our blood...the power of the intifada is our only weapon. We should not toss this weapon away until the Arab emergency summit is convened and until we gain international protection."
    Hassan al-Kashef, Director-General of the PA Ministry of Information,
    wrote in his Al-Ayyam column of 3 October 2000

©GPO  Prime Minister Ariel Sharon touching the body of 5 month- old Yehuda Haim Shoham, who was murdered in a terrorist attack near Shilo (11 June 2001) ©GPO  Weapons, rockets and mortars seized on the ship Karine A in the Red Sea that was on its way to the Palestinian Authority for use by Palestinian terrorist organizations (6 January 2002)

The Palestinian leadership realized that it must act in order to regain international support. The Palestinians adopted a strategy whereby violence would be the primary instrument to divert the world's attention away from Palestinian intransigence at Camp David and put pressure on Israel. The Palestinians hoped that the resulting bloodshed would restore their image as victims and bolster their calls for international intervention, leading to a unilateral Israeli withdrawal while the conflict continues.
A Fundamental Breach
The Palestinian decision to use violence contradicted two core commitments that they made prior to Oslo. Yasser Arafat broke his own pledge by which "the PLO renounces the use of terrorism and other acts of violence" and the PLO commits itself "to a peaceful resolution of the conflict between the two sides and declares that all outstanding issues relating to permanent status will be resolved through negotiations."These two core commitments, stipulated in Arafat's 9 September 1993 letter to the late Prime Minister Yitzhak Rabin, were the basis of Rabin's decision to sign the Oslo Accords.

September 9, 1993

Mr. Prime Minister,

The signing of the Declaration of Principles marks a new era in the history of the Middle East. In firm conviction thereof, I would like to confirm the following PLO commitments:
The PLO recognizes the right of the State of Israel to exist in peace and security.
The PLO accepts United Nations Security Council Resolutions 242 and 338.
The PLO commits itself to the Middle East peace process, and to a peaceful resolution of the conflict between the two sides and declares that all outstanding issues relating to permanent status will be resolved through negotiations.
The PLO considers that the signing of the Declaration of Principles constitutes a historic event, inaugurating a new epoch of peaceful coexistence, free from violence and all other acts which endanger peace and stability. Accordingly, the PLO renounces the use of terrorism and other acts of violence and will assume responsibility over all PLO elements and personnel in order to assure their compliance, prevent violations and discipline violators.
In view of the promise of a new era and the signing of the Declaration of Principles and based on Palestinian acceptance of Security Council Resolutions 242 and 338, the PLO affirms that those articles of the Palestinian Covenant which deny Israel's right to exist, and the provisions of the Covenant which are inconsistent with the commitments of this letter are now inoperative and no longer valid. Consequently, the PLO undertakes to submit to the Palestinian National Council for formal approval the necessary changes in regard to the Palestinian Covenant.
Sincerely,
Yasser Arafat
Chairman
The Palestine Liberation Organization
Yitzhak Rabin
Prime Minister of Israel
The Peace ProcessThe Palestinian Path of Violence
Since before the establishment of the State of Israel in 1948 and to this day, the Palestinians have refused to take advantage of the many opportunities to reach a negotiated resolution of the conflict. Instead, the Palestinian leadership chose the path of violence, rejecting Israel's every offer of peace. The Palestinians have never missed an opportunity to miss an opportunity, as the late Foreign Minister Abba Eban said.
The Road to Peace

©GPO  President Sadat and Prime Minister Menachem Begin in conversation (19 November 1977)

The pattern of Israeli appeals for peace being met with Arab rejection and hostile actions continued unabated for more than a decade after the 1967 war. This was first broken in November 1977, when Egyptian President Anwar Sadat visited Jerusalem. The subsequent negotiations resulted in the Camp David Accords of September 1978 and the March 1979 peace treaty between Egypt and Israel. Israel pulled out of the entire Sinai Peninsula. The thirty-year-old state of war between the two countries ended and internationally recognized boundaries were established. It should be noted that every time Israel met an Arab leader, like President Sadat of Egypt and King Hussein of Jordan, who were ready to make peace and who spoke the language of peace to their own people, Israel made peace with them.
The Camp David Accords of 1978 contained a framework for establishing a comprehensive peace in the Middle East, including a detailed proposal for self-government for Fthe Palestinians in the territories as a stipulated prelude to negotiations over the final status of the territories. Sadly, the Palestinians, supported by other Arab leaders, rejected this opportunity. This Palestinian intransigence persisted for some time despite the model of peaceful resolution represented by the Israeli-Egyptian treaty and despite the numerous initiatives put forward by Israel and others.
Only after the collapse of the Soviet Union, the Gulf War and the subsequent changes in the international system and the Middle East did the Palestinians offer to abandon violence and negotiate peace with Israel. In 1991 - 43 years after the establishment of the State of Israel - the Palestinians finally agreed to join the peace process and participate in the 1991 Madrid Peace Conferenceand the 1993 Oslo Accords. Sadly, the Palestinian leadership has not lived up to its commitments to refrain from terror, destroy the terrorist infrastructure and end the incessant incitement to hatred and violence. On the contrary, the Palestinian Authority has aided, abetted and fomented terrorism. Forces directly accountable to Arafat have perpetrated countless acts of terrorism. Palestinian Authority-controlled media has incited the terrorism which has taken so many innocent lives and has greatly damaged the prospects for achieving a negotiated peace.

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Photos clockwise:

The governor of Port Said presenting the plaque of the city to Defense Minister Ariel Sharon, passing through the town on his return from an official visit to Egypt (21 January 1982)

Prime Minister Shamir and Deputy Foreign Minister Netanyahu head the Israeli delegation at the Madrid Peace Conference (October 1991)

Senior IDF and Jordanian army officers shake hands at the Israel-Jordan peace treaty signing ceremony (26 October 1994)

Prime Minister Yitzhak Rabin meeting in Cairo with Egyptian President Hosni Mubarak (2 February 1995)

Prime Minister Benjamin Netanyahu conferring with King Hussein of Jordan on the steps of the Royal Palace in Amman (5 August 1996)

Prime Minister Ehud Barak (l.)and Foreign Minister David Levy (r.), meeting Egyptian President Hosni Mubarak and Foreign Minister Amr Moussa at the presidential palace in Alexandria, Egypt (29 July 1999)
Israel's Willingness to Compromise
The disputed status of the West Bank and Gaza Strip, combined with the refusal of the Palestinians to sign peace agreements with Israel that would define the final borders, means that the precise status of the territories has yet to be determined. And in the negotiations to determine the future status of these disputed territories, Israel's legitimate claims, and not just the Palestinian positions, must be taken into account.
Despite the Jewish people's historic and religious connection to these territories, in order to achieve peace Israel has always been willing to compromise. Israel has no desire to rule over the Palestinians in the territories and Israel's yearning for peace is so strong that all Israeli governments have been willing to make major sacrifices to achieve this goal. Still, the ongoing terrorism has caused many Israelis to doubt whether the Palestinians are truly interested in peace and whether some of the concessions that Israel was prepared to make two years ago are possible.
For negotiations to succeed, a responsible and moderate Palestinian leadership must emerge, one that has abandoned for all time the goal of destroying Israel and one that actively fights terrorism. Until that happens, Palestinian terrorism will continue to destroy innocent lives and Palestinian extremism will undermine the chance of peace for both Palestinians and Israelis.

The Debate About Israeli Settlements - They are legal

The Debate About Israeli Settlements

Settlements established by Israel in territories captured in the 1967 war have become a matter of great controversy among pro- and anti-settlement advocates who debate the legality of such communities. Opponents of the settlement policy claim that it's a Jewish land grab — a form of expanding Israel’s territory by colonizing Arab land. Proponents argue that both legally and morally, Jews have every right to purchase property and live on land that was historically inhabited by Jews, on which they were granted the right to settle under the British Mandate, and which has never been legally Palestinian. Opponents believe that peace can only be achieved between Israel and her Arab neighbors by creating a neighboring Palestinian state on all the land Israel won in the 1967 war, without the presence of any Jewish communities. They believe that the presence of Jews on the land the Palestinian want for a state constitutes an obstacle to peace. Proponents of the settlements believe the real obstacle to peace is the continued rejection by Palestinian leaders of Israel’s right to exist. They—as well as many others–believe that Israel’s pre-1967 borders were indefensible. The settlements are believed to create a secure buffer zone between the Israeli state and those who want to destroy it. Although built-up Jewish settlements account for less than 2% of the land in the West Bank, settlement opponents argue that the land controlled by Israeli authorities amounts to far more than that, and as a result, Arab residents are greatly inconvenienced. Proponents maintain that inconveniencing measures— including military controls, checkpoints on roads leading to the settlements and the clearing of olive groves used for ambushes—exist solely for security reasons to protect settlers and visitors from Arab terrorist attacks (which have claimed the lives of hundreds of Israelis since the 1993 Declarations of Principles that was to serve as the blueprint for peace). Israeli settlements were constructed after 1967 for security and/or ideological reasons and were supported by both the Israeli Labor and Likud parties. In many places, historic Jewish communities were re-established after having been destroyed by Arab fighters and prohibited to Jews during the Jordanian occupation of 1948-67. For example, Kfar Etzion, one of several Jewish communities in the area destroyed in 1948, was the first Jewish settlement re-established in the territories won by Israel in the 1967 war. Since 1967, Israeli leaders have repeatedly expressed willingness to relinquish territories won during the 1967 war and dismantle settlements built there in exchange for peace. Indeed, in April of 1982, Israel dismantled or transferred settlements in the Sinai to Egypt and in the summer of 2005, Israel withdrew its entire military and civilian presence from the Gaza Strip, dismantling all the settlements constructed there, transferring thriving greenhouses to the Palestinians, and expelling Israeli residents from their homes in the hopes of establishing peace with the Palestinians. Instead, Palestinian militants—with the support of their Hamas-led government—have used the evacuated territory to launch rockets into Israel’s pre-1967 borders, shelling residents of Sderot and other neighboring communities and causing death, injuries and damage within Israel. Since Israel’s withdrawal from the Gaza Strip, the territory has also become the site of deadly internecine violence among Palestinian factions, kidnapping of journalists, vandalism, looting and general mayhem. Far from bringing peace to the Gaza Strip, the withdrawal has resulted in  less secure borders for Israel. History As a result of the 1967 war, Israel gained control of the West Bank (from Jordan), the Gaza Strip (from Egypt) and the Golan Heights (from Syria). I. West BankJudea and Samaria, home to Jewish communities over thousands of years, was renamed the "West Bank" and annexed by Jordan in 1950. (This annexation was recognized by only two countries—Great Britain and Pakistan.) Iraqis, Syrians and Jordanians, and others built settlements on the land. Israeli Jews, however, were barred from living or buying property in the territories under Jordan’s regime. In July 1967, Israeli cabinet minister Yigal Allon of the left-wing Mapai (Labor) party, a member of the inner war cabinet, drew up a peace plan with a proposal to reallocate the West Bank territories between Jordan and Israel. According to the Allon Plan, Israel would relinquish heavily Arab-populated areas in the West Bank to Jordanian political control, while fortifying its vulnerable border with Jordan by retaining military control over a Strip along the Jordan River, through the Jordan Valley to the eastern hills of the West Bank. The territory retained (comprising less than half of the West Bank) was to include a corridor from the Dead Sea to Jerusalem and west of Ramallah to protect a Greater Jerusalem. The Labor government also approved and supported construction of settlements in the Gush Etzion (Etzion Bloc) located south of Jerusalem, the site of Jewish communities destroyed by Arab armies in 1948. Adhering to the Allon proposal, the Israeli Labor government sponsored the construction of settlements in strategic locations along the Jordan Valley, and in Gush Etzion, an area purchased by Jews long before the State of Israel was established. At the same time, the government resisted construction between the towns of Nablus and Hebron. In March 1974, following the Yom Kippur War, Gush Emunim (Bloc of the Faithful), an ideological, religious-nationalist group originally associated with the National Religious Party (NRP), was formed to initiate settlement in the biblical Land of Israel, "Eretz Yisrael." Some of the members had already been active in 1968, attempting to resettle Hebron (see below) and in 1973, attempting to establish a settlement at the biblical site of Elon Moreh. The group organized protests against the government for thwarting their attempts to settle the territories, and conducted tours and hikes of the territories to educate the Israeli public about the heartland of biblical Eretz Yisrael and to convince them of the need to resettle the territories. Seven failed attempts were made by Gush Emunim to settle the Nablus (Shechem) area in Samaria. (Each time, the army evacuated them.) On the eighth try, however, the government’s resistance was broken and settlers established a temporary community at the Kadum military base, which later became known as Kedumim. Over the next few years, several military posts and settlements were built in the area.  Between 1967-77, successive Labor governments supported the construction of over 25 communities in Judea and Samaria. After Likud came into power in 1977, dozens more settlements were built.in the West Bank and in the Gaza Strip. Many settlements were built on the sites of previous Jewish communities or in places with biblical significance. Many began as military or Nahal (military combat service combined with civilian service) camps which eventually became civilian settlements. Peace Now, an Israeli organization vehemently opposed to the settlements, claimed in an October 2006 report that Israeli settlements are situated mostly on "private Palestinian land" based on Arab claims disputed by the Israeli government and by others who question the credibility of the organization’s information. For example, the organization stated that almost 90% of the settlement town of Ma’ale Adumim was built on private Palestinian land–a claim it was subsequently forced to admit was wrong. There are currently ~245,000 people living in 121 settlements in the West Bank II. HebronHebron, site of the Cave (Tomb) of the Patriarchs, is one of Judaism’s four holy cities (the others are Jerusalem, Safed, and Tiberias). With few interruptions, Hebron was inhabited by Jews since biblical times. In 1929, Arab rioters massacred their Jewish neighbors as British soldiers stood by, and put an end to the Jewish community. In 1931, 35 families resettled in Hebron until further Arab riots in 1936 led to their evacuation. After Jordan occupied Hebron in 1948, Jews were barred from living there and from praying at the Cave of the Patriarchs. In April 1968, the eve of Passover, Rabbi Moshe Levinger and a group of his followers checked into the Park Hotel in Hebron in an attempt to re-establish the Jewish community there. They were opposed by both the local Arabs and the Israeli military. The settlers persisted and were eventually moved to Israeli military headquarters overlooking Hebron. In 1970, the government agreed to establish the adjacent town of Kiryat Arba, and the first housing units were erected in 1972. In 1979, settlers established the Committee of the Jewish Community of Hebron and moved into the former Jewish areas of Beit Hadassah and the Avraham Avinu synagogue. Israeli settlers, soldiers and visitors who came to the Cave of the Patriarchs were frequently subject to Arab violence. In 1976, Arabs destroyed the synagogue at the Cave of the Patriarchs and burned Torah scrolls. In May 1980, six Yeshiva students were killed and 20 wounded by Palestinian terrorists as they returned from prayers at the Tomb of the Patriarchs and in 1983, another yeshiva student was gunned down in the center of Hebron. Each murder and act of violence prompted the settlers to expand their presence in Hebron. By 1984, the Hebron Jewish community consisted of several enclaves. Hebron was the scene of even more violence during the first intifada and after the Oslo Agreements. Jewish settlers were the victims of stabbings, firebombings and shootings. In 1994, a Jewish settler killed 29 Muslim worshippers at the Cave of the Patriarchs and wounded 150 before being beaten to death. The violence continued during the second intifada with Palestinian suicide bombings, shootings and stabbings. Twelve security personnel—including civilian guards, border policemen and soldiers—were ambushed and killed as they accompanied worshippers returning from prayers at the Cave of the Patriarch, and a Jewish infant was targeted and shot dead by a Palestinian gunman. Settlers have been accused of stone throwing, verbal harrassment, and vandalism against Palestinians in the area. A Temporary International Presence in Hebron (TIPH) was established  in 1997. In 2002, two TIPH members were shot and killed just outside Hebron by Palestinian gunmen. And in 2006, TIPH temporarily withdrew from Hebron after its headquarters were attacked and destroyed by Muslims angered about cartoons of Mohammed published in a Danish magazine. Because a Jewish presence in Hebron has long sparked a violent Arab response, there is debate both inside and outside Israel, about whether Jews should be permitted to live there. Opponents believe a Jewish presence irritates the local Arabs and requires military support that  intrudes on Arab residents' lives, while proponents believe Jews should not relinquish their right to live and pray in their holy city by giving in to violence. The Jewish community in Hebron currently numbers ~600 and Kiryat Arba’s population is ~7,000. III. Golan HeightsFrom 1967-77, successive Labor governments sponsored the building of settlements in the Golan Heights for security reasons. The Golan Heights, at an elevation of ~2000 feet and fortified by Syria with a dense network of fortifications, trenches, concrete behind mine fields, had served as a strategic fortress from which to shell Israel’s agricultural heartland. The capture of this area now provided Israel a defensible border with Syria. The first two kibbutzim to be established in the Golan were Merom Golan and Mevo Chama at either end. Between 1967 and 1977, 20 additional kibbutzim and moshavim were constructed in the Golan Heights. Additional settlements were built between 1978 and 1987 with the support of Likud governments. There are now 33 settlements in the Golan, including kibbutzim, moshavim and the town of Katzrin, with a population numbering ~18,000. In 1981, Israel ended its military rule of the Golan Heights, with the passage by Knesset of "The Golan Heights Law," applying "the law, jurisdiction, and administration of the state....to the Golan Heights." The Golan's Druze residents were offered full Israeli citizenship, but most have not accepted. IV. Sinai and the Gaza StripUnder the 1949 armistice agreements, Egypt gained control of the Gaza Strip (part of the British Mandate and partially occupied by Israel during the 1948 war). Arab refugees from Jaffa and southern Israel moved to this small strip of land, but were kept by Egypt in squalid refugee camps. During the 1950's, the Egyptians used the Gaza Strip as a staging site for terror attacks by Fedayeen inside southern Israel. In the 1956 war, prompted by Egypt’s blockade of the Straits of Tiran, the Israeli army captured Sinai and the Gaza Strip but withdrew after an agreement placed UN peacekeepers in the Sinai. As a result of the 1967 war triggered by Egypt which expelled the peacekeepers and used their position in Sinai to again close the Straits of Tiran, Israel was once again in control of the Sinai and Gaza Strip. This time, however, Israel’s leaders—including Yigal Allon—believed that settlements should be established in order to create a security buffer against Egyptian aggression. Military installations, early warning stations, and 15 settlements, including the town of Yamit, were established by the Labor government in the Sinai. In 1979, Israel’s Prime Minister Menachem Begin, signed a peace treaty with Egypt, agreeing to withdraw from the Sinai and dismantle the settlements in exchange for peace. Israel also relinquished the Alma Oil Field, valued at $100 billion, which it had discovered and developed, thereby giving up the opportunity to become self-sufficient in providing for the country’s energy needs. In April 1982, over 170 military installations and early warning stations were dismantled and the settlements were forcibly evacuated by the Israeli army, overseen by General Ariel Sharon. By that time, Sinai was home to 7,000 Israeli residents. Most of the settlements were demolished. Neot Sinai, with its cultivated gardens, was given intact to Egypt. In 1988, the resort town of Taba, developed by the Israelis, was handed over to Egypt as well. Jews had long lived in Gaza before World War I. Kfar Darom was a Jewish-owned citrus grove in the 1930's. The Jewish National Fund bought the land from its Jewish owner and established a kibbutz there in the 1940's. During the 1948 war, Kfar Darom came under Egyptian attack and siege but managed to serve as a stronghold against the Egyptian onslaught before being evacuated. In 1970, Kfar Darom was re-established on the same site, supported by Israel’s Labor government. Twenty more settlements were established in the Gaza Strip in the late 70's, 80's and 90's. Some of the families evacuated from the Sinai settlements were resettled in Gaza settlements, such as Elei Sinai. The settlers transformed the Gaza dunes into lush oases of green. The presence of such settlements near squalid Palestinian refugee camps sparked envy and resentment among the local Arab populace. In 2005, the Israeli government forcibly evacuated and dismantled the Gaza Strip settlements, together with 4 additional settlements in Northern Samaria, and withdrew its military presence from Gaza. The thriving greenhouses that the settlers had built and maintained were transferred to the Palestinians. Debate over Legality of Settlements There is debate in the international community over whether or not the Israeli settlements are legal under international law. Many of the arguments are based on various false or questionable assumptions and claims. Those who maintain that the settlements are illegal rely on Article 49 of the Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War, August 12, 1949, which states: 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…are prohibited… and in the sixth paragraph: The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies. They interpret this as applicable to Israel’s settlement of the West Bank and Gaza, understanding Israel to have become a "belligerent occupant" of this territory through entry by its armed forces. They also argue that settlement policy leads to the violation of Palestinian rights under international humanitarian law–specifically, their right to self-determination, equality, property, freedom of movement, an adequate standard of living, and freedom of movement. Those who maintain that settlements are legal interpret Article 49 (6) of the 1949 Fourth Geneva Convention as inapplicable to Israel’s settlements. For example, the late Professor Julius Stone—considered one of the premier legal theorists —maintained that the effort to designate Israeli settlements as illegal was a "subversion. . . of basic international law principles." Among the 27 books he authored was Israel and Palestine: An Assault on the Law of Nations which dealt with the legal aspects of the Arab-Israeli conflict. In it, Stone set forth the central principles of international law upon which Israel’s right to settle the West Bank is based and discussed the inapplicability of Article 49(6) of the Fourth Geneva Convention to the case of Israeli settlement. Stone drew upon the writings of Professor Stephen Schwebel, former judge on the Hague’s International Court of Justice (1981-2000), who distinguished between territory acquired in an "aggressive conquest" (such as Japanese conquests during the 1930s and Nazi conquests during World War II) and territory taken in a war of self-defense (for example, Israel’s capture of the West Bank and the Gaza Strip in 1967 war). He also distinguished between the taking of territory that is legally held by another nation (such as the Japanese occupation of Chinese territory and the Nazi Germany occupation of France, Holland, Belgium and other European lands) as opposed to the taking of territory illegally held. The latter applies to the West Bank and Gaza, which were not considered the legal territories of any High Contracting Party when Israel won control of them; their occupation after 1948 by Jordan and Egypt was illegal and neither country ever had lawful or recognized sovereignty. The last legal sovereignty over the territories was that of the League of Nations Palestine Mandate which encouraged Jewish settlement of the land. Regarding Israel’s acquisition of territories in the 1967 war, Schwebel wrote: 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. ("What Weight to Conquest," American Journal of International Law, 64 (1970)) Proponents of the view that settlements are legal further argue that Article 49 was intended to outlaw the Nazi practice of forcibly transporting populations into or out of occupied territories to death and work camps  and thus cannot be applied to Israel because Arab residents were neither forcibly transferred, nor were Israelis intended to (nor do they) displace Arab residents of the territories. Arabs continue to live in these territories and their population continues to grow. Those who believe settlements are legal also maintain that it is not the existence of settlements that have an impact on Palestinians’ standard of living, right to self-determination, equality, property, and freedom of movement. Rather, the impact upon their freedom of movement and standard of living is directly a result of the threat they pose to their Israeli neighbors and their governance by the Palestinian Authority. Most U.S. governments have held the view that the settlements are not illegal and that the extent of Israeli withdrawal from the territories is subject to negotiation. The Carter administration viewed the settlements as illegal, relying on the opinion (April 21, 1978) of the State Department's legal advisor Herbert J. Hansell.   It is noteworthy that  Hansell based his opinion, at least in part, on  an earlier, more general work by Professor Julius Stone – a 1959 analysis entitled Legal Controls of International Conflict," which he cited in his memo. But his interpretation of Stone's intent is clearly contradicted by the scholar's subsequent defense of the legality of settlements, as noted above. The Reagan administration, however, reversed Carter’s position, saying: "As to the West Bank, I believe the settlements there — I disagreed when the previous Administration referred to them as illegal, they're not illegal" (New York Times, Feb. 3, 1981). Subsequent U.S. administrations held similar views; while they may have disapproved on political grounds of building new settlements in the disputed territories before negotiations, they did not label settlements as "illegal." Former U.S. Undersecretary of State Eugene Rostow wrote several articles explaining why settlements are legal and arguing that United Nations Resolution 242 stipulates that Israel withdraw from some of the disputed territory, but not necessarily all. It should be remembered that Rostow was one of the drafters of Resolution 242, the very resolution relied upon by Palestinians and their supporters to demand Israel’s complete withdrawal from all of the West Bank and Gaza and the dismantlement of all of the Jewish settlements. Proponents of the view that settlements are illegal often cite numerous U.N. resolutions criticizing Israel’s presence in the West Bank and Gaza. Those who maintain settlements are legal indicate that  U.N. General Assembly Resolutions carry no legal weight, even if one ignores the U.N.’s history of bias against Israel, evidenced by the infamous "Zionism is Racism" resolution and the partisan, anti-Israel  indictments by special U.N. bodies set up exclusively to report on Israel's practices. The United States routinely abstains or votes against Security Council resolutions unfairly condemning Israel for building settlements. One exception–under former President Carter, the United States initially voted for U.N. Security Council Resolution 465 which was passed on March 1, 1980. This resolution stating that Israeli settlements in the territories have no "legal validity" is often quoted to bolster the "illegality of settlements" argument. However, the American vote for this resolution was subsequently retracted, with the United States claiming that it had intended to abstain and blaming a communications failure as responsible for the vote. Finally, those who maintain settlements are legal indicate that although Article 25 of the U.N. Charter says: "The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter," this cannot invalidate Article 80 which says that: nothing in the [U.N. Charter's chapter on the administration of Mandate territory] shall be construed . . . to alter in any manner the rights whatsoever of any states or peoples or the terms of existing international instruments. (This updated version of the quote corrects an earlier typographical error.) This would include the British Mandate’s granting the right to the Jewish people to settle in the whole of the Mandated territory. Article 6 of the Mandate encouraged "close settlement by Jews on the land, including State lands not required for public use."

Eugene Kontorovich's talk at NYU on Israel's borders

Eugene Kontorovich's talk at NYU on Israel's borders

Yesterday, I attended a talk by Professor Eugene Kontorovich on "Disputing Occupation: Israel's Borders and International Law" at NYU. Here is a synopsis, based on my memory.

Kontrovich started off by saying what international law is not. It is not UN General Assembly resolutions. It is not advisory opinions from the ICJ (which, he pointed out, was answering a loaded question that assumed illegality when it gave its opinion on the security fence.)

The first legally important act after the fall of the Ottoman Empire that is relevant to Israel's borders is the League of Nations Mandate for Palestine, which noted the "historical connection of the Jewish people with Palestine and to the grounds for reconstituting their national home in that country." After the British partitioned Western Palestine from Trans-Jordan, the implication is that all of the remaining Palestine would be the area of the Jewish nation.

If the Arabs had accepted the 1947 Partition Plan, then the further partition of Palestine into an Arab and Jewish state would have legal weight. But since they didn't, the Jewish claim on all of Palestine remained in force.

The 1949 Armistice Lines (mistakenly called the "1967 borders") are emphatically not national boundaries. They are explicitly stated in the armistice agreements as "not to be construed in any sense as a political or territorial boundary, and is delineated without prejudice to rights, claims and positions of either Party to the Armistice as regards ultimate settlement of the Palestine question" (from the Egyptian armistice,the Jordanian one says "without prejudice to future territorial settlements or boundary lines or to claims of either Party relating thereto.") Their position (generally) had no demographic, political or geographic significance; they were simply where the opposing armies ended up at the last truce, with some minor adjustments. From the perspective of international law, they are not borders.

Jordan's sovereign claims to the West Bank were not recognized by the international community.

The next important legal document is UN Security Resolution 242 at the end of the 1967 war. (While it is a Chapter 6 resolution, Kontotovich noted that it was referred to in some Chapter 7 resolutions, meaning it might have the strength of the stronger Chapter 7 resolutions itself with respect to international law.) He discussed the famous missing "the" from the phrase "Withdrawal of Israeli armed forces from territories occupied in the recent conflict" and noted that this was done deliberately to make the resolution purposefully ambiguous as to whether Israel must withdraw from all the territories. He noted that in the end, when Israel relinquished the Sinai and later Gaza, Israel had withdrawn from some 99% of the territories, so it cannot be accused of violating the spirit of the resolution.

He also noted that the legality of Israel's annexation of the Golan Heights is a completely different topic from a legal perspective, and he did not get into it.

Kontorovich said that there is a big question in international law about whether one can legally acquire territory via conquest in a defensive war. He looked up five sources written before 1967 on the question; 2 said yes, 2 said no and one didn't think about it. In the case of the 1967 war, as with many things about Israel, the legal issues are completely unique and anyone saying that international law says something definitively on something that never happened before is generally not to be trusted. (I asked him whether the preamble of 242 meant that the UN considered the war not to be defensive; he answered that besides the fact that preambles are not part of the law, it would not make sense to interpret it that way because in that case Jordan also couldn't lay claim on it. He concluded that it was placed there in order to encourage the parties to come up with a negotiated border, as 242 states, and not a border created by conquest.)

The next legally important event for determining Israel's borders was the 1993 Oslo Accords. This is where Israel is relinquishing part of its occupied land (he noted that from Israel's perspective the land is occupied since it was not annexed, although it is legally occupied) to give to an ultimate Palestinian Arab entity.

Here is where he said something new.

In Professor Kontorovich's opinion, at some time after Oslo, Palestine became a state under international law.

The definition of a state is given by the Montevideo Convention. I had argued, and so had others, that "Palestine" does not constitute a state under its definition:

The state as a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with the other states.

Kontorovich didn't get into the issue of Gaza, which may seem to be a problem since it has a different government, but he argues that since Area A is unquestionably part of what is claimed to be Palestine, that West Bank entity is undoubtedly a state. Having defined territory is not the same as having defined borders, and "Palestine" has st least some territory that it can call its own.

Therefore, the professor says, the entire issue nowadays between Israel and the Palestinian Arab state is not an issue of occupation or legality - it is simply a border dispute that must be resolved the way all border disputes are resolved (or not.)

One other point, not dwelled on in his slides, is that the Fourth Geneva Conventions article 49 on transferring people to occupied territory does not apply because in Israel's case the people moved there voluntarily, and Geneva implies government organized mass transfers.

It was a very interesting and thought provoking talk, and I spoke to him afterwards; he's a really nice guy. He's doing a fellowship in Princeton now but he is based out of Northwestern University.

If you want to hear him talk, here are some upcoming presentations he is making:

Cherry Hill, NJ on Feb. 12, One State, Two State, Three State, Four: The PA Bid for UN Recognition, sponsored by the RJC Southern New Jersey Chapter:

Princeton, NJ Feb. 12: International Lawfare, BDS. and the Delegitimization of Israel, sponsored by Advocates for Israel.

University of Florida Law School, Feb 15 at 12:15, Disputing Occupation: Israel's Borders in International Law

East Windsor, NJ March 28th: Say It Enough, it Still Isn't True: Illegal Occupation, Settlement, and Apartheid, sponsored (and hosted) by Beth El synagogue and Speak Up for Israel.

Thursday, December 30, 2010

Does recognition of "Palestine" have any legal meaning?

The recent recognition of "Palestine" as an independent state by Brazil, Argentina, Uruguay, Bolivia and now Ecuador brings up the question of whether these acts have any legal meaning.

In the nineteenth century, the general viewpoint in the matter was known as the "constitutive theory of statehood," meaning that a state becomes a legal entity due to the fact that it is recognized by other states. There were problems with this definition, for example when only some states recognized another. But it was considered normative.

All that changed in the twentieth century. The Montevideo Convention on the Rights and Duties of States (followed by the Badinter Committee in Europe) codified normative international law as saying that statehood is independent of recognition by other states. This is known as the "declarative theory of statehood" and in the Montevideo Convention statehood is defined this way:

The state as a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with the other states.

The main sticking point for "Palestine" is the second criterion: a defined territory.

The South American nations - who are signatories to the Montevideo Conventions - are declaring the territory of "Palestine"  to be defined by the Green Line. The problem is that their declaration is based on fiction. For example, the Ecaudor recognition says "a free and independent Palestine with its 1967 boundaries." Before 1967, however, there were no boundaries between the West Bank and Jordan; there was no state of Palestine with any borders by any definition, and the Green Line was not a national boundary between Israel and Jordanian annexed territory. Ecuador might as well have declared that Palestine is on recognized lunar boundaries.

Furthermore, the statement says "This is a recognition that has been legitimized by resolutions 242 and 338 of the Security Council of the United Nations." This is also nonsense. Resolutions 242 and 338 do not mention a word about "Palestine" and do not even imply that such a state would ever exist, let alone legitimizing it.

It appears that these countries' recognition of "Palestine" have little legal bearing on its statehood, and statehood is impossible without a defined territory. They certainly have political value but not much legal meaning.

There might also be an argument as to whether "Palestine" has a government. It has two separate internal administrations that act as governments for their people, but the PA does not have diplomatic relations with other countries. The PA reports to the Palestinian Liberation Organization which handles all diplomatic issues - but it is not a government. Hamas acts more like a government than the PA.

A possible legal ramification of these countries' recognition might be in Article 6 of the Montevideo Conventions:

The recognition of a state merely signifies that the state which recognizes it accepts the personality of the other with all the rights and duties determined by international law. Recognition is unconditional and irrevocable.

It is possible that from the perspective of the recognizing state, "Palestine" would be bound by international law that only applies to states. It is uncertain whether the Palestinian Arab leadership are willing to take on such responsibility at this time.

Again, I am not an international or any other kind of lawyer and all of these are just my interpretations of source materials, with some help from Wikipedia.

UPDATE: After I wrote this I asked an international lawyer to comment, and I was pointed to an interesting legal opinion by Professor Malcolm Shaw that touches on these very issues.

Briefly, Shaw talks about the "defined territory" requirement as much less important than I thought and the government requirement as much more important:

The requirement for a defined territory does not mean that the boundaries of such territory have to be delineated and settled, nor that there be an absence of frontier disputes," but it does necessitate that there be at the minimum a consistent band of territory which is undeniably controlled by the government of the alleged State. This is an indispensable factual necessity. The concept of government as enumerated in the Montevideo Convention may be seen as the requirement for a foundation of effective control. It would seem to necessitate that the undisputed authority of that putative State should exercise a degree of overall control over most of the territory it claims. For this reason at least, therefore, the "State of Palestine" purportedly declared in November 1988 at a conference in Algiers cannot be regarded as a valid State. The Palestinian organisations did not control any part of the territory that was claimed.

He goes on to say that the PA's lack of control over Gaza means that it can only be recognized as a government if "widespread international recognition" deems it so, which seems like Shaw admits that the constitutive theory still holds some sway.

Shaw then goes into much more detail about the PLO/PA split of responsibilities:

There is one further relevant issue in considering the criterion of effective government. There is a clear distinction or division of competences on the Palestinian side between the Palestine Liberation Organisation ("PLO") and the Palestinian Authority. The former constitutes an internationally recognised "national liberation movement" accepted as representing externally the Palestinian people and the party with Israel to the various agreements commencing with the Declaration of Principles,1993.  Under the Interim Agreement, 1995, in addition, it has authority to negotiate and enter into agreements for the benefit of the Palestinian Authority in certain limited circumstances. On the other hand, the Palestinian Authority, as will be seen in the following paragraphs, exercises within the West Bank and Gaza a number of powers and responsibilities expressly transferred from Israel. The two institutions are not identical. Thus, what might be termed governmental functions are split between the two bodies. This must impact upon any conclusion as to whether the criterion of effective government has in fact been complied with.

Shaw says that "Palestine" does not adhere to requirement (d),  capacity to enter into relations with the other states, due to existing agreements with Israel and its lack of independence within those agreements.

The essential point is that critical functions seen as indispensable to statehood in international law have by agreement between the relevant parties been recognised as matters subject to Israeli control. This includes what is termed the capacity to enter into relations with foreign States in the Montevideo Convention. This competence in the Interim Agreement is clearly reserved to Israel, apart from certain minor areas, as noted in article IX (5) a and b noted above. It also includes the exercise of effective control with regard to external threats. This is emphasised in article XII, which, while providing for the establishment of a Palestinian police force, stipulates that: "Israel shall continue to carry the responsibility for defence against external threats, including the responsibility for protecting the Egyptian and Jordanian borders, and for defence against external threats from the sea and from the air, as well as the responsibility for overall security of Israelis and  settlements, for the purpose of safeguarding their internal security and public order, and will have all the powers to take the steps necessary to meet this responsibility".

Shaw goes further, saying that any declaration of "Palestine" would be inherently illegal because of the violation of existing agreements and

it is also now part of the international consensus that the emergence of a new State must not take place upon the basis of illegality. This may be seen as reflective of the general principle of ex injuria поп oritur jus.

He goes on:

There is one further point in. the context of statehood. It may seem self-evident, but it is nevertheless a key issue, that in order for a new State to be created (and indeed recognised thereafter by the international community), the entity in question must actually assert a claim to statehood. A new State cannot arise implicitly or incidentally by way of circumstances or by way of inference. It may only be established as a concrete and explicit act of will. The US Restatement of the Foreign Relations Law notes that, "[w]hile the traditional definition does not formally require it, an entity is not a State if it does not claim to be a State".' Crawford concludes that, "[sjtatehood is a claim of right. Claims to statehood are not to be inferred from statements or actions short of explicit declaration".

 In the case of the Palestine, not only has no formal claim to statehood been made, but statements have been made continually declaring that the aim of the peace process is to establish a State of Palestine. This goes hand in hand with the explicit nature of the many instruments signed from the Declaration of Principles in 1993 onwards between the relevant parties, and witnessed by leading members of the international community, and indeed with the whole tenor of international documents.

There's lots more there.

This is not a simple issue! Unfortunately, we have seen the international community ignore customary international law in favor of "Palestine" and against Israel before, and I would not be surprised if it happens again.

• Elder
  Resolutions 242 and 338 do not mention a word about "Palestine" and do even that such a state would ever exist, let alone legitimizing it.

  shouldn't it be NOT imply?
  ------
  other than that, thank you, that's great stuff and I agree it would be a first if the IC wouldn't use a perfect mix of contradictions against Israel ...

  insofar recognition by those Latin Americans means that some have decided to heck with the law, we create conditions on the ground and then let the others try to unroot us.
  We will be the majority!

  Who might side with Israel?
  All bigger countries who have unruly minorities that need keeping in check i.e. foremost the Chinese and the Russians, but also Belgium on which I just heard a piece. There the split desired by some is complicated by the possession of Brussels.
  Are there international initiatives to "help" them save the problem? not that I am aware of.
  But then the UN is one state, one vote, isn't it? which is a perfect disadvantage for the big ones.

  As intriguing as the Belgian case is European countries may not be of much help because their egotism is diminished by their cherishing the illusion that the EU-umbrella will be capable of synchronising all those statelets.