RUTHFULLY YOURS

Editors Note: Jewish history in the Land of Israel is contiguous, spanning more than 3,000 years. Its capital has been in Jerusalem since King David’s rule in 1010 BCE. There were periods of occupation by Romans, Byzantines and Sasanids, Arabs, Crusaders, the Ayyubid dynasty and Mamluk Sultanate, and the Ottoman Empire – each leaving a footprint.https://www.jewishpolicycenter.org/2017/01/11/special-report-close-settlement-land/

These occupations came and went across periods of greater and lesser Jewish habitation – but never without Jewish communities from those days to these.

UN Security Council Resolution 2334, adopted on 2 January 2017, asserts that land acquired by Israel in the course of defending itself in the 1967 Six Day War is to be considered “occupied Palestinian territory.” The resolution has no legal status, but it bears heavily on the politics of our time – politics grounded neither in history nor in law, but rather in anti-Semitism or the pigeon-hearted fear that drives countries to curry favor with Arab and Islamic potentates or terrorists.

The Editors at inSIGHT are departing from our usual pattern of writing and publishing in this column to balance the scales at least a bit to put history and law in their rightful place. For this, we go back to a time before this current political crush but anticipating it in important ways.

Professor Eugene V. Rostow (1913-2002) served as dean of Yale Law School, Undersecretary of State for Political Affairs, and director of the US Arms Control Agency. He co-authored UN Security Council Resolution 242 and was prolific on the role of international law in determining how and where Jews could settle. It is not a spoiler to say his view was “everywhere.” The following – and articles that will appear in the near future – are excerpts from his authoritative 1980 Yale International Law Journal article, “Palestinian Self-Determination: Possible Futures for the Unallocated Parts of the British Mandate.”

Who, today, even knows what the “British Mandate for Palestine” was a mandate/requirement/demand to do? Read on, and you will and realize how much current anti-Israel diplomacy and international lawfare have departed from history, law and justice.

The Soviet Interest

The exploitation of Arab hostility to the Balfour Declaration, the Palestine Mandate, and the existence of Israel has been a major weapon in the Soviet campaign to dominate the Middle East. The Soviet Union’s use of this tactic is in itself a considerable psychological feat, since the Russians provided Israel with decisive help during the wars of Israeli independence in 1948 and 1949. The anti-Israel card is not the only asset in the Soviet Union’s Middle East hand, but among the Middle Eastern masses it has been trumps.

The goal of the Soviet campaign in the Middle East is to control the oil, the seas, and the air space of the region, and to substitute Communist or Communist-oriented governments for royal and other traditional regimes. Once such control is achieved, the Soviet Union believes, it will be possible for it to outflank Europe and force the United States to dismantle NATO, withdraw its forces, and leave Europe to Soviet domination…

The Editors at inSIGHT are departing from our usual pattern of writing and publishing in this – the second in a series of three columns – to balance the scales at least a bit and put history and law regarding Israel and Jewish “close settlement on the land” in their rightful place. This is a response to UN Security Council Resolution 2334 and to the presumed outcome of the Paris “Peace” conference Sunday.

Professor Eugene V. Rostow (1913-2002) served as dean of Yale Law School, Undersecretary of State for Political Affairs, and director of the US Arms Control Agency. He co-authored UN Security Council Resolution 242 and was prolific on the role of international law in determining how and where Jews could settle. It is not a spoiler to say his view was “everywhere.” The following is excerpted from his authoritative 1980 Yale International Law Journal article, “Palestinian Self-Determination: Possible Futures for the Unallocated Parts of the British Mandate.” To read Part I click here.

Part II

While the Permanent Court of International Justice, its successor the International Court of Justice, and many other authorities have confirmed the status of mandates in general and of the Palestine Mandate in particular, the dispute over the future of German Southwest Africa, long a South African Mandate, and now generally called Namibia, has been the most prolific and important source of international law on the subject.

In its series of decisions and advisory opinions on Namibia, the International Court of Justice has ruled that a League Mandate is a binding international instrument like a Treaty, which continues as a fiduciary obligation of the international community until its terms are fulfilled. All states, the Court, and the Security Council have responsibility for seeing to it that the terms of the Mandate are respected and carried out…

In Palestine, Israel and Jordan already exist as states, and only the Gaza Strip and the West Bank remain as unallocated parts of the Mandate. The reasoning of the Namibia decisions requires that the future of these two territories be arranged by peaceful international agreement in ways that fulfill the policies of the Mandate.

Jewish rights of “close settlement” in the West Bank are derived from the Mandate. Therefore, they exist; it is impossible seriously to contend, as the United States government does [with the Carter administration’s March 1, 1980 vote for a Security Council resolution calling on Israel to dismantle all post-June 19967 West Bank Jewish communities], that Israeli settlements in the West Bank are illegal.

It is true that since the Six-Day War in 1967 the United States government has taken the nominal position that Israel held the Sinai, the Golan Heights, the West Bank, and the Gaza Strip only as the military occupant under international law. The State Department has maintained that under Article 49 of the Fourth Geneva Convention, a state administering the territory of another state as military occupant cannot in the absence of military necessity or governmental need displace the inhabitants of the territory and establish its own citizens in their place. The Department’s position is in error; the provision was drafted to deal with “individual or mass forcible transfers of population,” like those in Czechoslovakia, Poland, and Hungary before [, during] and after the Second World War. Israeli administration of the areas has involved no forced transfers of population or deportations.

The Israelis responded to the State Department in an argument of great cogency, which the State Department has never answered. The Israeli view is that while the 1907 Hague Convention and the 1949 Geneva Convention apply to the Israeli occupation of the Golan Heights and the Sinai, which are Syrian or Egyptian territory in the contemplation of international law, they do not apply to the Israeli occupation of the West Bank and the Gaza

The 70-nation conference on the Israeli-Palestinian issue in Paris on Sunday included neither Israeli nor Palestinian representatives and was a farce and a fraud—but could have been still worse.

Prime Minister Benjamin Netanyahu said the conference represented the “last twitches of yesterday’s world. Tomorrow’s world will be different—and it is very near.”

It was, of course, one of the reasons the conference was farcical: although Secretary of State John Kerry was in attendance, he was representing an administration that is in its last five days in office, and whose policy of harassing Israel was—among much else—repudiated in the U.S. elections two months ago.

France, the host and convener of the conference, was hardly in a stronger position: the Socialist government of François Hollande is on its last leg and its path, too, is expected to be jettisoned in the upcoming French elections.

Israeli columnist Prof. Eyal Zisser notes that “in the actual Middle East…no one gives France a second thought and no one is taking its peace initiative seriously.” It was, after all, France that led the misguided Western assault on the defanged Qaddafi regime in Libya and reduced that country to jihadist chaos; and it is France that has sat impotently while its former colonies, Lebanon and Syria, have fallen under Hizballah rule in one case and into Hobbesian mayhem in the other.

And as David Harris has pointed out, France’s credentials as an honest broker on the Israeli-Palestinian issue are also less than sterling:

at the World Health Organization General Assembly in May…France voted in favor of a measure that bizarrely singled out Israel by name as the only country in the world accused of undermining “mental, physical and environmental health,” and…France could do no more than abstain at UNESCO in April on a resolution that denied any Jewish (and Christian) link to the holy sites in Jerusalem.

Top diplomats from world powers gathered in Paris to affirm their stance on peace talks between the Israelis and Palestinians, days before U.S. President-elect Donald Trump takes office threatening to upend the international consensus behind addressing the long-running conflict.

Some 75 governments and international organizations used Sunday’s meeting to send a message to Mr. Trump that the only viable solution to the conflict is the creation of a Palestinian state alongside Israel.

Noting that a new administration was poised to take power in Washington, French President François Hollande said that decades of talks to create a Palestinian state can’t be “improvised or overturned.”
“This solution is the only one possible for peace and security,” Mr. Hollande said during the meeting.

The conference marks another flashpoint over Israel between the international community and Mr. Trump, who has forcefully backed the Israeli government since winning the election. Mr. Trump’s team objected to the conference in talks with French diplomats ahead of the meeting, a French official involved in the discussions said.

“They made it clear that they did not think it was a good idea,” the official said. The Trump transition team couldn’t be immediately reached for comment.

U.S. Secretary of State John Kerry attended the gathering, one of his last meetings before handing over control of U.S. diplomacy to Mr. Trump’s team.

Mr. Trump’s moves on Middle East policy have threatened to upset the delicate balance that the U.S., Israel’s most important ally, has striven to preserve between Israel and the Palestinians. He has pledged to move the U.S. Embassy in Israel to Jerusalem, a step seen by Palestinians as backing Israel’s claim on the contested city as its exclusive capital.

Jean-Marc Ayrault, the French foreign minister, on Sunday called Mr. Trump’s remarks a provocation. “A question as sensitive as Jerusalem can only be addressed in the framework of negotiations between the parties,” Mr. Ayrault told reporters after the conference.