Defective law and moral incoherence in the UN Security Council vote on the Israeli settlements

BY RICHARD l CRAVATTS, TOI

The shameful and morally incoherent December 23rd resolution vote by the UN Security Council demanding that “Israel immediately and completely cease all settlement activities in the occupied Palestinian territory, including East Jerusalem,” also includes dangerous language that proclaims that Israeli settlements, which are “dangerously imperiling the viability of the two-state solution,” have “no legal validity.”

The United States, contrary to its customary role, abstained from the vote, which passed by a vote of 14 in favor out of 15 countries, and this departure marks a new low in the U.S.’s relations with Israel, even though the State Department under President Obama has, during the last eight years, promiscuously referred to the Israeli settlements as “unhelpful,” “obstructions to peace,” and “illegitimate.”

A Security Council vote denouncing Israeli settlements is not, however, new. In fact, Friday’s resolution was, in tortured prose of Yogi Berra, “like déjà vu all over again,” since in March 1980 the Security Council adopted a similar resolution “rebuking” Israel for maintaining settlements and determining that Israel was guilty of “flagrant violation” of the Fourth Geneva Convention, the same legal offenses included in the Friday resolution.
Reflecting on the 1980 vote, and how the U.S. abstention represented a profound betrayal of morals and justice for Israel, the late Senator Daniel Patrick Moynihan stated categorically that such a resolution was diplomatically egregious. “I have represented the United States on the Security Council,” he wrote. “I have served as President of the Security Council. I state as a matter of plain and universally understood fact that for the United States to abstain on a Security Council resolution concerning Israel is the equivalent of acquiescing.”

Of course, the Obama administration has maintained the long­-held view that the presence of Jewish residents in Judea and Samaria violates international law. Then-Secretary of State Hilary Clinton’s office, for instance, announced on more than one occasion that, “We do not accept the legitimacy of continued Israeli settlement activity and we oppose any effort to legalize settlement outposts.” The problem with this defective diplomacy, as is often the case when Israel is concerned, is that operates in what commentator Melanie Phillips has called “a world turned upside down,” where the perennial victim status of the long-­suffering Palestinians trumps any sovereign rights of Israel regarding its borders, security, and even its survival in a sea of jihadist foes who yearn for its destruction. The settlement debate has also been hijacked by the Arab world and its Western apologists who, willingly blind to history, international law, and fact, continue to assign the blame for the absence of peace on the perceived offenses of occupation and Israeli truculence.

More to the point, it is erroneous to overlook the fact that not only all of the land that is current­-day Israel, but also Gaza and the West Bank, is part of the land granted to the Jews as part of the League of Nations Palestine Mandate, which recognized the right of the Jewish people to “close settlement” in a portion of those territories gained after the breakup of the Ottoman Empire after World War I. According to Eugene V. Rostow, the late legal scholar and one of the authors of UN Security Council Resolution 242 written after the 1967 war to outline peace negotiations, “the Jewish right of settlement in Palestine west of the Jordan River, that is, in Israel, the West Bank, Jerusalem, and the Gaza Strip, was made unassailable. That right has never been terminated and cannot be terminated except by a recognized peace between Israel and its neighbors,” something which Israel’s intransigent Arab neighbors have never seemed prepared to do.

Moreover, Rostow contended, “The Jewish right of settlement in the West Bank is conferred by the same provisions of the Mandate under which Jews settled in Haifa, Tel Aviv, and Jerusalem before the State of Israel was created,” and “the Jewish right of settlement in the area is equivalent in every way to the right of the existing Palestinian population to live there.” The Six Day War of 1967, in which Israel recaptured Gaza and the West Bank, including Jerusalem, resulted in Israel being cast in another perfidious role—in addition to colonial usurper of Arab land, the Jewish state became a brutal “occupier” of Arab Palestine, lands to which the Jews presumably had no right and now occupied, in the opinion of many in the international community, illegally. But that “unhelpful” view again presumes that parts of the territory that may someday comprise a Palestinian state is already Palestinian land, that the borders of the putative Palestinian state are precise and agreed to, and that Jews living anywhere on those lands are now violating international law.

When did the West Bank, Gaza, and East Jerusalem become Palestinian land? The answer is: never. In fact, when Israel acquired the West Bank and Gaza and other territory in the defensive war 1967 after being attacked by Egypt, Syria, and Jordan, the Jewish state gained legally-recognized title to those areas. In Israel’s 1948 war of independence, Egypt, it will be recalled, illegally annexed Gaza at the same time Jordan illegally annexed the West Bank—actions that were not recognized by most of the international community as legitimate in establishing their respective sovereignties. Israel’s recapture of those territories in 1967, noted Professor Stephen Schwebel, State Department legal advisor and later the President of the International Court of Justice in The Hague, made the Jewish state what is referred to as the High Contracting Party of those territories, both because they were acquired in a defensive, not aggressive, war, and because they were part of the original Mandate and not previously under the sovereignty of any other High Contracting Party. “Where the prior holder of territory had seized that territory unlawfully,” Schwebel wrote, referring to Jordan and Egypt, “the state which subsequently takes that territory in the lawful exercise of self-­defense has, against that prior holder, better title.”

It is also morally repellent, for those arguing on the Palestinian side, that the West Bank, like Gaza, eventually be made judenrein, totally absent of Jews, that, as Mahmoud Abbas has loudly announced on more than one occasion, the future Palestinian state would not have one Jew living within its borders. Putting aside the fact that it is Israel that is continually derided for being racist and exclusionary (despite having one million Arab citizens), only in a world turned upside down would diplomats uphold a principle that Jews—and only Jews—not be allowed to live in certain territories, and particularly those areas to which they have irrevocable and inalterable biblical, historic, and legal claims. In fact, Professor Emeritus Jerold Auerbach of Wellesley College has written that, protests from the State Department and many in the West aside, “Israeli settlement throughout the West Bank is explicitly protected by international agreements dating from the World War I era, subsequently reaffirmed after World War II, and never revoked since . . . The [Mandate for Palestine] recognized ‘the historical connection of the Jewish people with Palestine’ and ‘the grounds for reconstituting their national home in that country’ . . . This was not framed as a gift to the Jewish people? rather, based on recognition of historical rights reaching back into antiquity, it was their entitlement.”

While those seeking Palestinian statehood conveniently overlook the legal rights Jews still enjoy to occupy all areas of historic Palestine, they have also used another oft­-cited, but defective, argument in accusing Israel of violating international law by maintaining settlements in the West Bank: that since the Six Day War, Israel has conducted a “belligerent occupation.” But as Professor Julius Stone discussed in his book, Israel and Palestine, the fact that the West Bank and Gaza were acquired by Israel in a “sovereignty vacuum,” that is, that there was an absence of High Contracting Party with legal claim to the areas, means that, in this instance, the definition of a belligerent occupant in invalid. “There are solid grounds in international law for denying any sovereign title to Jordan in the West Bank,” Stone wrote, “and therefore any rights as reversioner state under the law of belligerent occupation.” So, significantly, the absence of any sovereignty on territories acquired in a defensive war—as was the case in the Six Day War of 1967—means the absence of what can legally be called an occupation by Israel of the West Bank, belligerent or otherwise. “Insofar as the West Bank at present held by Israel does not belong to any other State,” Stone concluded, “the Convention would not seem to apply to it at all. This is a technical, though rather decisive, legal point.”

The matter of Israel violating Article 49 of the Fourth Geneva Convention is one that has been used regularly, and disingenuously, as part of the cognitive war by those wishing to criminalize the settlement of Jews in the West Bank and demonize Israel for behavior in violation of international law, and, in fact, was the core of Friday’s resolution. It asserts that in allowing its citizens to move into occupied territories Israel is violating Article 49, which stipulates that “The occupying Power shall not deport or transfer parts of its own civilian population into territory it occupies.” The use of this particular Geneva Convention seems particularly grotesque in the case of Israel, since it was crafted after World War II specifically to prevent a repetition of the actions of the Nazis in cleansing Germany of its own Jewish citizens and deporting them to Nazi-occupied countries for slave labor or extermination. Clearly, the intent of the Convention was to prevent belligerents from forcibly moving their citizens to other territories, for malignant purposes— something completely different than the Israel government allowing its citizens to willingly relocate and settle in territories without any current sovereignty, to which Jews have long­standing legal claim, and, whether or not the area may become a future Palestinian state, should certainly be a place where a person could live, even if he or she is a Jew.

In fact, Professor Stone observed that those enemies of Israel who point to the Fourth Geneva Convention as evidence of Israel’s abuse of international law and wish to use it to end the settlements are not only legally incorrect, but morally incoherent and racist. Stone suggested that in order to recognize the validity of using the Fourth Convention against Israel, one “would have to say that the effect of Article . . . is to impose an obligation on the state of Israel to ensure (by force if necessary) that these areas, despite their millennial association with Jewish life, shall be forever judenrein. Irony would thus be pushed to the absurdity of claiming that [the Fourth Convention], designed to prevent repetition of Nazi-­type genocidal policies of rendering Nazi metropolitan territories judenrein, has now come to mean that Judea and Samaria (the West Bank) must be made judenrein and must be so maintained, if necessary by the use of force by the government of Israel against its own inhabitants.”

And does anyone doubt that once the Palestinians, aided and abetted by mendacious Western elites, diplomats, and an anti­-Israel international community of supporters who cobbled together support for the latest anti-Israel Security Council resolution, have purged Gaza, the West Bank, and East Jerusalem of all Jews, that new calls will then arise accusing Jews of “occupying” more “Arab” lands in Tel Aviv, Netanya, Tiberias, or Haifa?

Professor Rostow himself saw through the disingenuous talk about legal rights and resolutions when it came to the issue of the settlements. The discussion was not, in his mind, “about legal rights but about the political will to override legal rights.” In fact, the settlement debate is part of the decades-­old narrative created by the Palestinians and their Western enablers to write a false historical account that legitimizes Palestinian claims while air-brushing away Jewish history. “Throughout Israel’s occupation,” Rostow observed, “the Arab countries, helped by the United States, have pushed to keep Jews out of the territories, so that at a convenient moment, or in a peace negotiation, the claim that the West Bank is ‘Arab’ territory could be made more plausible.”

In the cognitive war against Israel, that “convenient moment,” at least for the “pack of jackals” in the UN about which Senator Moynihan lamented, has apparently arrived.

Richard L. Cravatts, PhD, immediate Past-President of Scholars for Peace in the Middle East (SPME), is the author of the new book, Dispatches From the Campus War Against Israel and Jews (A David Horowitz Freedom Center book).