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September 21, 2011: Imminent Now?

September 21, 2011

The various projected doings at the UN are, perhaps, almost upon us.  But here I want to provide some significant background regarding the issues surrounding a Palestinian Arab state.

Earlier this week, I attended a conference sponsored by the Jerusalem Center for Public Affairs and the World Jewish Congress on the subject of “The Rights of Israel as the Nation-State of the Jewish People in International Diplomacy.”

Participants (in no particular order) included:

[] Ambassador Dore Gold, who heads the JCPA
[] Minister for Security Affairs Moshe Ya’alon
[] Dan Diker, Secretary-General of the World Jewish Congress
[] Professor Ruth Lapidoth, Professor Emeritus of International Law, Hebrew University
[] Ambassador Alan Baker, former legal adviser to the Israel Ministry of Foreign Affairs
[] Advocate Irit Kohn, President of the International Association of Jewish lawyers and Jurists
[] Professor Nicholas Rostow, Distinguished Research Professor, US National Defense University



There was overlap in the various presentations, certainly — as well as consideration of topics I’ve touched on many times here.  I will summarize by subject matter, noting sources as relevant, and limiting myself to the more significant facts and insights.  There is considerable value to the material offered here.


Dore Gold opened by sharing the fact that in private communication with a Palestinian Arab involved in current proceedings, he was told that the PA goal is to change perceptions, more than it is to change the law:  There is an attempt to do away with ideas about Jewish rights.  The PA wants the world to see Judea and Samaria as automatically Palestinian land, rather than disputed territory to which Israel has the most solid claim.  Etc.

Thus, nothing is more important than our emphasizing both our historical and legal rights. 

To that end, the JCPA and World Jewish Congress have collaborated in producing a book that is an authoritative exposition of “The Rights of Israel,” as explored by several key experts.  You can see it here:


And you will be able to order it, hard copy.  For anyone wishing to be solidly informed in order to defend Israel, this is an invaluable resource.


Moshe Ya’alon says that  with regard to our dispute with the PA, we have the claim to moral, legal, historical, and security justice.  The problem is that so many are oblivious to this.  When he talks about how pervasive PA influence has been internationally — so that even some Jews have bought the Palestinian Arab line —  he hits upon a very important issue:

THE BEGINNING IS OUR BELIEVING IN OURSELVES.  Do not fall into the trap of thinking that right in our conflict is determined by an international poll.  And so, for example, just because a great many people — and the influential NY Times — firmly believe that we are “occupiers” in Judea and Samaria, does not make it so.  We are not. 

Among the PA lies that Ya’alon discussed are:

[] That the conflict is territorial, when in fact it is existential.

[] That Israel in intransigent, when in fact it is the PA.

[] That Israel exaggerates her security requirements — which can be resolved via a third party, when in fact we have experienced 1,000 deaths by terror in return for concessions we’ve already made, and have had only bitter experience with third party forces who don’t protect Israel.

[] That Israel should be more “flexible,” when in fact what is demanded of Israel disregards legitimate security requirements.

[] That settlements are illegal and illegitimate, when in fact Israel is not an occupier and has built legally on disputed land (more on this below).

[] That the Israeli-Palestinian Arab conflict is the reason for unrest in the ME and Arab hostility to the West, when in fact historically there are multiple conflicts in the area — Sunni/Shia, attacks against the Alawites and the Kurds, etc. 


Ya’alon pointed out that Netanyahu is the first prime minister who has specifically demanded that the PA recognize Israel as the nation-state of the Jewish people.  In light of the PA position, this is actually critically important.  As Ruth Lapidoth observed, this would run counter to a theme that is central to the Palestinian Arab narrative.


As the entire issue of claims to Judea and Samaria, legality of settlements, etc. is so critical, I want to look at that more closely:

As outlined by Nicholas Rostow:  After WWI, a new regime of law, global in its reach, was established via the mandate system established within the Covenant of the League of Nations.  Colonial empires were granted trusteeships for indigenous populations.  Where the Mandate for Palestine granted to Great Britain was concerned, the focus was on vindicating the promise of the Balfour Declaration.

The international community, via the League of Nations, acknowledged in law the historical claim of the Jewish people to what was then called Palestine, and the right of Jews to re-establish a homeland there.
In 1945, when the UN was established, article 80 of its charter provided for a continuation of the mandate system.

In 1949, Israel was admitted as a member to the UN, with the legal boundary to the east still not set.


Ruth Lapidoth on Security Council Resolution 242 of 1967:  It was adopted unanimously on the application of Egypt, is highly quoted, and considered central to the issue of Israeli presence in Judea and Samaria.  There are, however, problems with interpretation, with some clauses controversial.

The resolution says that you cannot acquire territory only by war — that after war negotiations must follow.  As is famously noted, it says the IDF will withdraw from “territories.”  There is no definite article (the) utilized. The meaning is that the IDF will withdraw to borders that have been agreed upon, not that the IDF will withdraw from all the territory of Judea and Samaria.

The Arabs prefer to rely upon a French translation of this resolution, which — because of the nature of French grammar — is equivocal as to whether the definite article is intended.  The Arabs claim it is. 

However, the resolution was formulated in English; it is the English version which is clear, and which should be utilized.  The very fact that there is talk about secure borders for Israel implies that borders will be negotiated. 


Says Lapidoth, when Resolution 242 — which is a Security Council document — mentions refugees, it speaks of “just settlement of the refugee problem.”  There is NO mention of “return,” and NO mention of resolution 194, the General Assembly document that is at the core of Palestinian Arab claims to a “right of return.”

As to Resolution 194, as I have long written here, Lapidoth confirms that it does NOT confer such a right.

Return in this document is only a recommendation — it uses the term “should,” while it is “shall” that imparts legal obligation.  And it is conditional — “if” the refugees will live in peace, “as possible.”


Alan Baker advanced yet another argument for why Israel legally has a right to a presence in Judea and Samaria.  This one is not routinely noted but seems to me not only cogent but effective in terms of making Israel’s case to persons lacking historical background on the issue:

With the 1995 Interim Agreement of the Oslo Accords, three administrative divisions of Judea and Samaria were created.  In Area C, Israel has full civil and military control.  There is to be no change in this assignment of control until such time as there is a final status agreement.

The Accords were fully supported by the EU and the UN.  How then, can they now claim that it is illegal or illegitimate for Israel to be in that area (which is where all settlements are established)?


Irit Kohn expressed the opinion that there has been far too much hysterics about a Palestinian state.  She believes the PA is far from becoming a state.

The Montevideo Convention provides a legal definition of a state.  (That is, it sets into customary international law the principle that states may be declared if they conform to certain defined criteria.)  The criteria: (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with the other states.  At a bare minimum, the PA does not control the territory it is claiming as part of its state.

After Cast Lead (the Israeli operation in Gaza in early 2009), The PA went to the International Criminal Court to press charges of ‘war crimes’ against Israel.  However, the ICC Convention requires that complainants be states.  Israel sought the legal opinion of Professor Malcolm Shaw, an expert in international law at Cambridge University.  His professional opinion — which was submitted both to the Prosecutor of the International Criminal Court and to the International Association of Jewish Lawyers and Jurists — was that Palestine was not a state under “public international law,” and, what-is-more, could not have conferred upon it  the status of state for purposes of the Court.

While the ICC has still not made a decision on this, Kohn believes that Shaw’s opinion is relevant now.


She also points out, with regard to the PA’s chances of becoming a member of the UN, that the UN Charter, chapter 2, article 4, reads:

“Membership in the United Nations is open to all other peace-loving states which accept the obligations contained in the present Charter and, in the judgment of the Organization, are able and willing to carry out these obligations.”

Lastly with regard to legal issues, I offer this:

The charge is sometimes made that Jewish settlement in Judea and Samaria is in violation of the Geneva Conventions, but a careful reading of article 49.6 makes it clear that it does not refer to the settlements, but rather to ‘forcible transfers’ as well as ‘deportations of protected persons from occupied territory to the territory of the Occupying Power.’  None of this has anything remotely to do with the Jews living in Judea and Samaria of their own volition.


Dan Diker believes that the right of Jews to sovereignty within secure and defensible borders is at stake.

Some 18 months ago, Diker traveled with Arabic-speaking Israeli journalist Pinchas Inbari to Ramallah, to learn more about the PA position on negations.  What they discovered has enormous significance:

The PA had decided to pursue the “Kosovo Strategy.”  This means they had made a strategic decision to go unilateral.

Realizing that they had already received the best offer they were going to get, PA President Abbas and PA Prime Minister Fayyad made this decision in mid-2008.  Kosovo had gone unilateral, breaking from Serbia.  Legally this was a very different case from that of the PA, but they decided to sidestep the legal framework and draw on imagery and public perception.

Fayyad the put together a very sophisticated, bottom-up economic plan.  It was a strategic move, to give the impression that the institutions of state were being seriously built, with a goal of completing this within two years.  Today, the PA is no where near ready to be a state and still lacks essential institutions.

Diker is convinced that no concession Israel could have made would have moved Fayyad and Abbas from their unilateral path.  (NOT that he says Israel should have tried further concessions.)  The decision was an internal one.


With all of this, the tone I sensed in the Conference was one of cautious optimism.  As Dore Gold said, Israel’s counter-attack has begun and is scoring some successes.  I will return to this theme.


Very briefly here (given the weight of material I’ve already provided), I want to look at what we might expect in the next two days and beyond.

The answer is that even now we don’t know.  If all goes well, and I post again tomorrow, I may be able to say more.  I have felt all along that there is a chance that the PA will either fail to make it to the UN, or fail in the UN. 

The US, which is committed to a veto in the SC but loathe to cast it, is working furiously to make it unnecessary.


One the one hand, there is an attempt to get Israel to make concessions that will bring the PA to the table. 

It seems to me — especially in light of what Diker has said about the internal PA decision on going unilateral — that nothing Netanyahu is either willing or able to concede would make the difference.  But this does not mean there is no unease. There is plenty.

And there are rumors aplenty about what the Israeli prime minister may have agreed to.  They include one story with regard to an “interim” state within current lines that Israel may have offered the PA, and another in which the US would hope for another settlement freeze.  But I’m not going to address these various possibilities now.


On the other hand, the US is working to stymie the PA inside the SC.  There are 15 members in the Security Council. If one of the five permanent members — the US, the UK, France, Russia or China — vetoes, then the motion before the Council is defeated.  But in order for a motion to pass, at least nine members of the Council must vote in favor. Thus, if seven members simply abstain — they don’t have to vote against — the motion also fails.

Right now, as I write, the PA does not have the numbers necessary to pass their bid.  The temporary members of the Council at present are Bosnia & Herzegovina, Germany, Nigeria, Lebanon, India, Gabon, Columbia, Portugal, and South Africa.

It is being said that Germany and Colombia are with the US in opposing the state, but it is not clear if they would vote against or abstain.  France, Serbia, Nigeria, Bosnia & Herzegovina, and Gabon are still undecided — as it seems is Portugal.  China, India, Lebanon, Russia, and South Africa will support the state.  Have no information on the UK.


And we still need to look at possible punitive actions by Congress in response to what’s going on, and what may be the Israeli role here.


 Some articles on this subject worth reading:

Jeff Jacoby, “A Palestinian state?  Don’t count on it.”



The Wall Street Journal Editorial, “The Palestinian Statehood Gambit.”

“Are Palestinians entitled to a state? Before certain readers erupt at the mere suggestion that Palestinians may not be so entitled, we’d note that the Kurds—one of the oldest ethnic groups in the world—don’t have a state. Neither do the Tamils of Sri Lanka, the Uighurs and Tibetans of China, the Basques of Spain, the Chechens of Russia or the Flemish of Belgium. The list of peoples with plausible claims to statehood is as long as the current number of U.N. member states, if not longer…

…The Obama Administration, which has wasted six months begging the Palestinians to change course, might instead announce that a declaration of Palestinian statehood in New York would lead to the closure of the Palestinian representative’s office in Washington. Congress could also enact Florida Republican Rep. Ileana Ros-Lehtinen’s bill to cut funding to the U.N. if it endorses a Palestinian state. This worked wonders the last time the Palestinians sought to have the U.N. declare their state during the George H.W. Bush Administration.

“Perhaps it’s also time to rethink the fundamental desirability of a Palestinian state so long as the Palestinians remain more interested in tearing down their neighbor than in building a decent political culture of their own.”



Robin Shepherd, “Reckless Palestinian bid for unilateral statehood at the UN.”

“…there is one party that most emphatically does not support a Palestinian state, if that means long-term acceptance of the State of Israel: the Palestinians themselves. Opinion polls have consistently shown that the Palestinians only support the idea of a Palestinian state sitting side-by-side with Israel as a stepping stone to a future one-state solution in which they rule over the Jews.

“In other words, the Israelis have always been in the near impossible situation of being asked to negotiate with people who plainly don’t want any long-term peace involving the acceptance of Israel as a legitimate state with a secure future, whatever their leaders say about recognizing Israel to gullible Western media.”



© Arlene Kushner. This material is produced by Arlene Kushner, functioning as an independent journalist. Permission is granted for it to be reproduced only with proper attribution.




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