Wednesday, March 16, 2011
Israel Unwilling to Apply the Same Law to Itself That It Demands Be Applied to Others
Washington Report on Middle East Affairs
March 2011, Pages, 28-29, 32
Israel Unwilling to Apply the Same Law to Itself That It Demands Be Applied to Others
By Ian Williams
"O wad some Power the giftie gie us/To see oursels as ithers see us!" wrote Robert Burns, Scotland's national poet. For those who need a translation, he prays for the gift of seeing ourselves as others see us after seeing a louse crawl out of a young lady's hair in church.
Observers of the Middle East have long noticed Israeli insouciance to the lice swarming in that country's head.
According to the commentary from pro-Israel government sources, it is unthinkable, provocative and anti-Semitic for states like almost the whole of Latin America to recognize Palestine—until they do, of course, in which case it immediately becomes a futile and wasted gesture. Israeli hasbara (propaganda) is indeed capable of believing three impossible, and contradictory, things before breakfast. Fortunately, Israel is not trying to agitate an American attack on Latin America, so countries there have some leeway.
In particular, the polemics from some Israeli think tanks against the idea of the U.N. recognizing a Palestinian State would surely benefit from Jehovah's largesse in this matter.
Alan Baker of the Jerusalem Center for Public Affairs, for example, solemnly intoned for the benefit of foreign diplomats and press that the recognition of a Palestinian state was illegal "as set out in the 1933 Montevideo Convention on the Rights and Duties of States, relating to a capability of governance, permanent population, defined territory, and capacity to enter into relations with other states." From 1985-89, before becoming Israel's ambassador to Canada, Baker was seconded by the Israeli government to the U.N.'s Department of Legal Affairs, where he seems to have survived despite his interpretation of international law being so notably at variance with that of everyone but Israel and its supporters.
Nothwithstanding his insistence on "permanent population, defined territory, and capacity to enter into relations with other states" for Palestinian recognition, Baker's time at the U.N. clearly was not spent in the archives. When Israel was admitted to the world body in 1949, if it had any recognized frontier at all it was the boundaries of the Jewish State demarcated by the commission that recommended partition, and explicitly excluded both parts of Jerusalem. This is why, of course, not one single member state now has an embassy to Israel in that city.
Israel's admission was delayed until the conclusion of armistice agreements with its neighbors, which came at heavy cost: the assassination of U.N. representative Count Folke Bernadotte by the party led by Yitzhak Shamir, which now, of course, rules Israel.
And that state at the time had a temporarily permanent population that included a majority of Arabs, but a much less permanent population of outsiders who were deemed to be automatic citizens. It is a little too late to call for nullification of Israel's accession to the U.N., although perhaps less tardy to remind the state of the promises it made on that accession to abide by U.N. decisions.
Baker also solemnly said that any attempt to secure recognition of Palestine was a violation of Palestinian commitments under the Oslo agreements. Of course, one would have to look hard in the Oslo agreements to see where they countenanced repeated Israeli military incursions into the West Bank and Gaza, assassinations and arrests of elected PA officials, blockading Gaza, and blowing up U.N. facilities.
And with hallmark chutzpah he solemnly accused the Palestinians of violating undertakings under "Article XXXI, para. 7, not to initiate or take any step that will change the status of the West Bank and the Gaza Strip pending the outcome of the permanent status negotiations." Unlike, of course, doubling the settler population since the agreements were signed. Indeed, so damning was a recent EU report on Israeli activities that European foreign ministers vetoed its publication—fruitlessly in the age of WikiLeaks since The Independent newspaper in Britain promptly leaked it. The report accused Israel of "restrictive zoning and planning, ongoing demolitions and evictions, an inequitable education policy, difficult access to health care, the inadequate provision of resources and investment," policies which it concluded had a demographic intent.
Describing the political consequences of Israeli policy in Jerusalem, the document added: "Over the past few years the changes to the city have run counter to the peace process. Attempts to exclusively emphasize the Jewish identity of the city threaten its religious diversity and radicalize the conflict, with potential regional and global repercussions."
In the face of this accurately depicted reality, Baker's breathtaking audacity, indeed mendacity, should be beyond satire. But across the world, some politicians, headline-writers and letter-writers will repeat it—and do so sincerely. After all, if one's worldview is that Israel is never wrong, then clearly reality must be ignored or adjusted accordingly.
In fact, it has been some years since I pointed out in this column that the status of Jerusalem can indeed be negotiated between the parties—but that their agreement has no validity until and unless the U.N. rescinds that partition resolution which made Jerusalem an international city under U.N. jurisdiction. It is indeed unfair and anomalous that the world's diplomats, by refusing to base embassies in Jerusalem, respect the residual authority of that resolution over the city, but forget the only legally sanctioned boundary between the Jewish and Arab states.
Baker invoked Brazil's words in the Security Council in 1967 to decry the Latin American states' recognition of Palestine "within the 1967 boundaries." He quotes them as saying, "Its acceptance does not imply that borderlines cannot be rectified as a result of an agreement freely concluded among the interested States. We keep constantly in mind that a just and lasting peace in the Middle East has necessarily to be based on secure permanent boundaries freely agreed upon and negotiated by the neighboring States."
Indeed, the pre-1967 boundaries were armistice lines without permanent legal foundation, and the Latin Americans, like the Palestinians, often invoke international law, since it is one of their defenses against neighboring bullies, notably the U.S. Everyone agrees that the 1967 boundaries are negotiable—but international law and the U.N. Charter also outlaw the acquisition of territory by force, which is why not one single country in the world has recognized Israel's annexation of East Jerusalem, its legal title to the West Bank and Gaza, or even the Golan Heights.
But there is no rule saying Israel is entitled to keep the 1967 boundaries and then add more territory. Indeed, the Palestinians would be legally and morally justified (albeit at the risk of some questioning of their grip on reality) in demanding in negotiations a return to the original U.N. partition lines of 1947.
The Lake of Tiberias Strip
Also, to return to a theme the Palestinians seem to have forgotten, while the Golan Heights are indisputably occupied Syrian territory, the strip along the Lake of Tiberias is, under the Mandate boundaries, equally indisputably occupied Palestinian territory. The British and French had drawn up the boundaries and left a 10-meter strip—the beach, effectively—as part of Palestine to ensure what was then British control of the lake and the headwaters of the Jordan.
That strip was indeed allocated to the Jewish state in the U.N. partition plan, but one suspects that the Israelis would not be eager to cite that plan as definitive on the boundary front, since it would imply that their boundaries would shrink way behind the 1949 Armistice Line. In fact, to the south of Lake Tiberias the Syrians controlled more extensive Palestinian territory that was later designated a demilitarized zone. The IDF continually encroached on it, of course, but in 1949 Ralph Bunche sent a letter to Israel and Syria denying Israel's claims of sovereignty over the area to be included in the Armistice Agreement. In language that ironically foreshadowed current Israeli diplomacy he declared, "Questions of permanent boundaries, territorial sovereignty, customs, trade relations and the like must be dealt with in the ultimate peace agreement and not in the armistice agreement."
In 1967, the Israelis took the lot, and subsequently annexed the whole of the Golan Heights. But since Resolution 242 calls for Israeli withdrawal from territories occupied in 1967, that presumably includes the Golan, and the strip of Mandatory Palestine and the DMZ, which should fall to the Palestinian State. At the very least, if the 1967 boundaries are to be negotiated, then these territories should be Palestine's to regain—or at least to be countered with equivalent concessions from the other side.
Over on the other coast, Lebanon raised the issue of U.N. help in demarcating the maritime boundary in the Mediterranean, where Beirut considers that it has claims to some of the natural gas fields Israel is claiming as its own. Indeed, a quick glance at a map suggests that the Lebanese do indeed have a point. However, the U.N. spokesman said—correctly—that Resolution 1701 only covered the U.N. delineating the land boundary between the two countries. Now Israel has become very upset because the U.N. Special Representative for Lebanon, Michael Williams has said—equally correctly—that the U.N. could help clarify the boundary.
In fact, not only are there clear legal principles, not least under the International Treaty on the Law of the Sea, for marking maritime boundaries, but there are fora, such as the Hamburg-based International Tribunal on the Law of the Sea, and the International Court of Justice itself, where interpretations of those principles could be argued. Israel's distress at this suggests that it does indeed have some doubts about its legal claim to the full extent of the gas fields. As the American poet Robert Frost noted, "good fences make good neighbors." On land and at sea, it is in everyone's long term interest to agree upon boundaries—unless a party has designs to move the posts permanently.
Bringing together these issues, the Palestinians have been threatening to take two issues to the U.N. Firstly, to recognize Palestine as a state, as well over 100 U.N. members already have and secondly to condemn the illegal settlement building in East Jerusalem and the West Bank.
It is a sad epithet on Obama's initial enthusiasm for building relations with the Muslim world that Washington seems to have promised Netanyahu to veto both. Perhaps in gratitude for the prime minister's compliance with oft-repeated and humiliating U.S. pleas for a mere settlement freeze?
It is a great opportunity missed. Despite its bluster, the Israeli government is worried about U.N. resolutions and not vetoing them would be a painless way for the U.S. to exercise some leverage on the recalcitrant Likudniks. If Hilary Clinton can condemn settlements, then why veto the U.N. Security Council doing the same? If President Obama can look forward to a Palestinian state, then why shouldn't the U.N. follow the wishes of a clear majority of its members?
Sadly, like Israeli legal exegesis, these are mysteries beyond understanding.