By Prof Howard Adelman
On 23 December 2016, the UN Security Council passed UN Resolution 2334 included at the end of this blog. I have added the bolding. The relevant clause discussed in this blog is the first principle cited in the preamble and it reads as follows:
“Guided by the purposes and principles of the Charter of the United Nations, and reaffirming, inter alia, the inadmissibility of the acquisition of territory by force.”
Is it inadmissible to acquire territories by force?
The principle of the inadmissibility of the acquisition of territories by force is embodied in UNSC Resolution 242 passed on 22 November 1967 in the aftermath of the Six Day War. Chapter VI of the UN Charter calls on member states to settle their disputes by peaceful methods (inquiries, negotiations, mediation, conciliation, arbitration, judicial settlement, etc.) rather than war. In cases of failure to reach agreement, the issue must be referred to the Security Council. Chapter VI allows any state or consortium of states to bring a resolution before the UN Security Council. Note that Chapter VI only allows the UN to pass resolutions that are recommendations; resolutions that are passed, do not bind the member states engaged in a dispute. This is unlike resolutions passed under Chapter VII which are deemed obligatory. Resolutions under Chapter VI are commendatory, particularly since the UN has no enforcement mechanism.
If territories are acquired in a defensive war, not through intentional conquest, why is it inadmissible to hold onto such territories, particularly if the territory is largely being held both for defensive reasons and as bargaining chips in a future peace negotiation? The inadmissibility is directly tied to efforts to settle populations on that territory as distinct from acquiring those territories? What is the definition of acquisition of a territory by a state?
Further, since the Six Day War, Israel concluded two peace agreements, one with Egypt in which Israel gave back all territory captured as part of a full peace agreement. The other was with Jordan, a country which had walked away from any responsibility for the territory it had captured and annexed in the 1948 war. Article 2, paragraph 5 of the UN Charter requires states to refrain from using force “against the territorial integrity or political independence of any state.” Such a clause is only possibly applicable to the Golan Heights which Israel captured from Syria in 1967 and subsequently annexed. However, the bone of contention driving Res. 2334 is the West Bank, including East Jerusalem, captured in the 1967 war and claimed, not by an existing state, but by an aspiring Palestinian state.
It is notable that the supposed universal principle of the inadmissibility of the acquisition of territory by force only refers to Resolution 242 applicable to only one area of the many occupied by one state and taken from another, and then only after Israel acquired further territory following the Six Day War in 1967; it is not applicable to the additional territory Israel captured and annexed in the 1948 war.
Look at many of the other areas of the world to which the principle has not been applied. In 1975, Morocco occupied just over 100,000 square miles of desert flatlands in the Western Sahara (formerly the Spanish Sahara) that was also claimed by Mauritania when Spain gave up administrative control of the territory. The Polisaro Front also fought to make the territory an independent self-governing state (the Sahrawi Arab Democratic Republic), even though the population totalled only about half a million. In the war that ensued, the Polisaro Front was left with at most a third of the territory, while Morocco controlled the rest, including the whole Atlantic Ocean coast line, all in defiance of a 1975 decision by the International Court of Justice that upheld the right to self-determination of the people of the Western Sahara.
In contrast, the U.S. politically recognized Morocco’s right to the territory even when, subsequently, Morocco and the Polisaro National Front agreed that a referendum would be held in which the people of the Western Sahara could determine their fate. That referendum has never been held, though periodically there have been diplomatic efforts to resolve the impasse. Under Trump, it is highly unlikely that the U.S. will bring pressure on Morocco and King Mohammed VI to sort out the problem of voter eligibility and the mode of conducting the referendum, especially given the access Morocco provides U.S. military forces to Atlantic ports and aircraft refueling. Thus, though the U.S. launched a war against Iraq in 1991 that could theoretically have been on the principle of the inadmissibility of conquering the territory of another state when Iraq invaded Kuwait, the U.S. used the Moroccan conquered territory as part of its war effort. In current U.S. policy stretching back to those years, including both Bush and Clinton administrations, the U.S. does “not automatically reject a territorial transfer brought [about] by force.”
The question arises: why is the U.S. willing to exempt Morocco from acquiring territory by force, especially given three factors – Morocco, unlike Israel, is an autocratic monarchy not a democracy; Morocco engages in extensive human rights abuses; finally, like the Israeli-Palestinian conflict, the tension is a source of instability in both areas – the Maghreb and in the former territory of the Palestinian mandate. Yet the Obama administration never challenged Morocco. President Obama even lauded the monarchy for its efforts at “deepening democracy” and “promoting economic progress.” Trump’s foreign policy will undoubtedly stress even more favouritism towards allies rather than rights of self-determination and the inadmissibility of the conquest of territory by force.
However, the key question raised in Friday’s vote was the policy of the UN. The UNSC this year renewed its peacekeeping mission in the Western Sahara (MINURSO) that was also passed on a Friday (almost eight months earlier on 29 April). In spite of a much greater UN presence there as a peacemaker than in Israel-Palestine, and perhaps because of that and the risks a more activist diplomatic stance might make on the security of its peacekeepers, the UN has not placed any significant pressure on Morocco. It has not even passed any resolutions on Morocco to cease and desist from it policies of expulsion in the area. When Ban Ki-moon visited the territory this past year and even called it “occupied,” a diplomatic firestorm ensued.
The original Res. 379 of 2 November 1975 simply urged the contending parties to desist from unilateral actions and instructed the SG to report back. The stronger 6 November 1975 Resolution 380 deplored a march held by Morocco in the territory, called on Morocco to withdraw its troops and asked the contending parties to cooperate with the UN. The very recent 29 April 2016 Morocco resolution continued the pattern of its predecessors, including Res. 2218 of the previous year, renewing the peacekeeping mandate for an additional year while endorsing the efforts of UN envoys to reconcile the position of the parties and congratulating both parties for their positive efforts to reach a compromise. Nothing was ever said about the inadmissibility of the acquisition of territory by force.
The full resolution 2218 on the Western Sahara conflict can be found at the end of this blog.
This was not the case when Indonesia invaded East Timor, also in 1975, and the UNSC passed resolution 384 on 22 December 1975. Though that very much stronger resolution required all states to respect the territorial integrity of East Timor and the inalienable right to self-determination, the resolution never invoked the principle of the inadmissibility of the acquisition of territory by force. What forced Indonesian withdrawal was the weakened state of the Indonesian economy and the active intervention of the Australians, propelled in good part by their oil interests in the area.
Only in the case of Kuwait, an independent state and full member of the UN, did the UN Security Council pass a resolution (660), but it authorized member states to take military action to resist and overturn the conquest. The members passed that resolution, not under the principle of the inadmissibility for the acquisition of territory by force, but under a much harsher Chapter VII principle of maintaining peace and security in the region. The resolution endorsed military intervention.
When North Vietnam conquered South Vietnam in 1975, no resolution akin to the anti-Indonesian one was passed. In no other case that I can find has there been the invocation of the principle of the inadmissibility of the acquisition of territory by force of arms.
Though the UN and other states put pressure on China to accede to the independence of Mongolia in 1961, the Chinese military takeover of Tibet in 1950 and its repression of the Tibetan uprising in 1959 never involved any invocation of the principle of the inadmissibility of the conquest of territory by force. At best, the General Assembly of the UN periodically took up the question of Tibet, but even China’s strongest critics never invoked the principle of the inadmissibility of the conquest of territory by force. Perhaps some resolutions had been morally stronger – charging China with acts of genocide in the fifties and insisting that Tibet had previously been an independent state, but the principle of the inadmissibility of the conquest of territory was not invoked.
The principle is applied exclusively to Israel. Further, the resolution applies only to Israel following the 1967 war.
There are many other cases. Do we need to add the supine character of the UN when it came to the Russian takeover of Crimea, Moscow’s coercive interventions in eastern Ukraine, never mind Russia/s military invasion of Georgia in 2008 ostensibly on behalf of self-determination in South Ossetia and Abkhazia. A United Nations member was being dismembered by force, and the UN was impotent to act.
In the case of Ethiopia’s two-year war with Eritrea begun on 6 May of 1998, the two parties reached a peace agreement. That agreement provided for an arbitration commission to determine borders. That commission found in favour of Eritrea and against the claims of Ethiopia that most of the territory of the border region it occupied belonged to Ethiopia, specifically the hundreds of towns and villages along the border in which the Ethiopian army destroyed the buildings and infrastructure in the area occupied, particularly that of the border towns of Senafe, Sreha and Tserona. The UNSC proved unable to enforce a ruling by an independent boundary commission awarding the bulk of disputed border territory to Eritrea.
Ethiopia ignored the findings and continued to occupy the border territory and integrate it into the territory of Ethiopia. This was another example of a seizure of territory by force never condemned by the UN Security Council as a breach of the principle of the inadmissibility of the acquisition of territory by force. Instead, based on a report of the UNSC Monitoring Group, UN reprimanded Eritrea for violating the UN resolution by importing weapons and ammunition from eastern Sudan and claimed that it had evidence that Eritrea supported the Ogaden National Liberation Front, the Tigray People’s Democratic Movement and Ginbot Seven. Eritrea had also been condemned by a human rights commission for arbitrary arrests, torture, rape, enslavement, murder and reprisals against family members of dissidents inside the country. There is no equivalent report on human rights abuses in the West Bank and Gaza except by Israel.
When Turkish forces took over Northern Cyprus and continued to administer the territory as if it is an extension of Turkey rather than part of the territory of an independent state and member of the UN, it did so under the pretext that Turkey had no jurisdiction or control over the territory of the Turkish Republic of Northern Cyprus which Turkey, but no other country, recognized as an independent de facto state. Turkey claimed that Northern Cyprus was not a “subordinate local administration.” The European Court of Human Rights had already previously ruled that Turkey exercised effective control over northern Cyprus. Nevertheless, the UN Security Council had never ruled that Turkey’s effective control was an example of the inadmissibility of the acquisition of force through force.
Comparative historical examinations of other situations as well as of the case of Israel before 1967 clearly points to the fact that the Security Council has been using the language of a general principle to apply to one and only one case, thereby undermining that principle as a norm of international conduct and reinforcing the position that the acquisition of territory through force is, in fact, the accepted practice and not its obverse.
All very true and just but does Israel have the courage and faith to declare all previous agreements null and void, claim their rights to the territories and effectively tell the UN and their Arab enemies to go to hell.
Defensive Wars and Legal Acquisition of Territory (Pt III)
Inalienable Rights & the Social Contract
The Right of Self-defense
The right of self-defense is inalienable for both the individual and the collective (eg: nation).
Where the “acquisition of territory,” by defensive war, is made necessary for self-defense (both in the present and foreseeable future; ie, systemic war), any law/rule that could restrict or contravene said right would – by definition – violate this inalienable right.
The Responsibility of Consequences
Lastly, the immutable principle of consequences cannot be disregarded; any notion that a collective should be any less accountable than an individual, and therefore should not be subject to adequate responsible consequences for engaging in an illegal coercive war is an untenable violation of the social contract between the People and their government.
It is beyond-the-pale to even consider that a victim-nation should not only suffer violence/death/genocide and worse, but have to bear unreasonable risk of future repetitions!
The People have a right to get on with their lives after winning a war.
It therefore becomes ‘just’ (fair and responsible), that, in the absence of a peace treaty &/or the immediate cessation of all hostilities, that a war be recognized as ‘systemic,’ rendering any ‘acquisition’ (capture/re-capture) of territory legal and final.
Any ‘egalitarian’ considerations for a still violent ‘defeated’ enemy that, by terrorism, etc, would force the winners to put-their-lives-on-hold-indefinitely, would be unjust; a perfidious postmodern liberal ‘tolerance’ for the intolerant!
To conclude, Israel has every right (legal, moral, and otherwise) to annex any and all territories acquired in a ‘defensive’ war – and doubly so where a systemic “clear and present threat” remains de facto (not to mention de jure) undiminished.
Defensive Wars and Legal Acquisition of Territory (Pt II)
Resolution 242 was created under Chapter VI of the UN Charter, rendering it non-legally binding; ie, it is a “recommendation” only. (Only a few Chapter VII Resolutions are legally binding.)
Additionally, the clause is ‘preambulatory’ (eg: “Emphasizing”), not ‘operative’ (eg: “Affirms”); ie, even within the interested office of the UN, it holds no recognized authority what-so-ever.
Moreover, it’s founding basis, the UN’s earlier doctrine of “Territorial integrity” has been effectively supplanted by the UN’s later adoption of the right to “Self-determination” – thereby voiding the already marginalized, non-legally binding clause, as the two are mutually exclusive.
Additionally, the clause is widely deemed perfidious because of its singlatory targeting of Israel.
Just 19 years earlier, the contested territory was captured by the Arabs (in a coercive war of aggression), occupied, and ethnically cleansed.
To then closely follow that beyond-the-pale-violation and carelessly create a resolution without acknowledging this fact is the epitome of perfidy.
And yet, even with the passage of another 50 years, the US et al still (mostly) uphold this racist diktat that alone bars the Jews from acquiring security-mandated territory in not just a defensive war, but a systemic defensive war; they still cling to this untenable violation of the right to self-defense – and do so all for no higher ‘justification’ than it might appease Arab oil & Islamic intolerance.
Such blatant double standards and utter disregard of existential inalienable rights is – at best – despicable.
(Note: The territory’s borders, before colonizing European powers had imperially waved their hands to reshape them (the infamous Sykes-Picot Agreement), dated back to antiquity. Before this ‘secret’ illegal treaty, the borders for Palestine (now Israel) included the Golan, Jerusalem, Judea, Samira, and Gaza; those pre-colonial borders being established by the most legitimate of means: they were forged by the imperative of secureable borders; proven just through the test of defensibility: ie, they were requisite for survival – a quality that never diminishes in the passage of time!)
(See: ‘Inalienable Rights & the Social Contract’ below)
[Note: “the inadmissibility of the acquisition of territory by force is newer language in UNRes2334; UNRes242 says war.]
Defensive Wars and Legal Acquisition of Territory
The two official documents most cited in claims that territory is “inviolable” and that the acquisition of territory by force is “inadmissible” are the 1933 Montevideo Convention and 1967 UN Resolution 242.
(Note: Only Montevideo is legally binding.)
1933 Montevideo Convention (Art 11)
Coercive Measures
“In law, coercion is codified as a duress crime” – the operative word being “crime.” (Note: Self-defense/defensive war is never classified as a “crime.” There are no defensive “measures” that may be deemed “coercive.”)
In common language, ‘defensive’ and ‘offensive’ are natural antonyms. War however, is complicated by the sanctioning of ‘preemptive strikes,’ which – by definition – is an offensive/aggressive action, but is still held legal when employed as a self-defense measure.
The term “force,” by itself, is inherently neutral. It is only with the qualifier “coercive” that the application of the Montevideo Convention is found directed at acts of criminal violence; illegal wars, unjust injury, etc.
The term “coercive” is more encompassing, precise, and more concise than employing ‘wars of aggression’; and more precise (and non-contradictory) than ‘offensive’ wars.’
Because the dichotomy of ‘defensive’ and “coercive” is valid, the phrase, “or in any other,” renders the term “coercive measure” exclusive, ie, it must preclude any consideration of non-coercive measures (eg: defensive war).
The Montevideo Convention employs the term “coercive measure,” which, because it does not additionally include any consideration of ‘defensive measures,’ makes its entire mandate exclusive to “coercive measures,’ eg, wars of aggression.
“for any motive whatever”
Here, it must be noted that self-defense is not a “motive,” it is an ‘imperative.’ (Note: If the authors had meant for instance: “for any ‘reason’ whatever” – they would not have used the limiting term “motive.”)
Additionally, the distinction between coercive wars and defensive wars is manifest in the Montevideo Convention’s unmitigated prohibition on “military occupation…” (ie: illegal), and the Geneva Convention’s codifying of laws & obligations for legal “military occupation,” which is only applicable for defensive wars.
These two diametrically opposed clauses are not contradictory, as they may only be applicable exclusively within a deliberate distinction held between ‘wars of aggression’ and ‘defensive wars.’
Lastly, all the examples originally cited to establish just cause “not to recognize territorial acquisitions,” were “coercive” wars of aggression; none were defensive wars.
***
By all metrics, the defining terms, the examples cited to validate its founding basis, and the noted otherwise immutable contradiction re ‘occupation,’ the Montevideo Convention was not designed to be applicable to, cannot be bent to be applicable to, and is in fact incontestably not applicable to defensive wars – period.
(See: ‘UNSC Res 242’ below)
bernard ross Said:
And the US support this resolution!!!
/ In short the UN codified and legalized antisemitism and Obama finally put the American stamp on this shameful resolution this last week! A victory for “Liberalism”, Socialism and Islamism! This will be short-live.
In short the UN codified and legalized antisemitism and Obama finally put the American stamp on this shameful resolution this last week! A victory for “Liberalism”, Socialism and Islamism! This will be short-live.
Ex post facto law is prohibited in many countries — including New Zealand and the United States — and appears to be in international law as well. The Nuremberg, Eichmann and Tokyo trials were in fact justified by earlier treaties such as the 1899 Hague Convention and the Versailles Treaty in response to arguments that they were illegitimate because they applied ex post facto law. Since the settlement of Amona was legal at the time, moreover and they are only now not only applying the law retroactively but upholding arbitrary laws that were issued by a an illegitimate legal system thrown out long before that, the court seems to be applying ex post facto law twice over. Moreover, such laws only apply to high contracting parties. Israel is the only high contracting party. And prior conventions still in force clearly assign exclusive sovereignty to the Jewish people in all of the land between the river and the sea based on history and right. It was Arab nations who attacked Israel, with the help of the Arab fifth column inside Israel who were mostly illegal immigrants who slipped in after the conventions requiring the existing inhabitants’ civil and religious rights be protected and who are therefore not covered, and certainly not those of their descendants in other countries. The Arabs sought to acquire territory in war that was not theirs to begin with. The Arabs violated the international agreements their representatives signed acknowledging the division of the former Ottoman empire. It is the Arabs who should be required to make reparations. If Ex Post Facto Law is upheld, then the Arabs should be required to withdraw and evacuate their populations from all of the countries they invaded and colonized in the seventh century in violation of article 4 of the Geneva Convention. And that goes for Iran and Turkey, as well, respecting their illegal invasion, colonization, and occupation of Kurdistan and Armenia.
“ex post facto law definition. A law that makes illegal an act that was legal when committed, increases the penalties for an infraction after it has been committed, or changes the rules of evidence to make conviction easier. The Constitution prohibits the making of ex post facto law.”
Ex post facto law – Dictionary.com
http://www.dictionary.com/browse/ex-post-facto-law
It appears to me that because Israel agreed to the terms of the resolution that it takes force beyond being a resolution of the UN… it is an agreement and agreements and treaties are a basis in international law. therefore in opinion the enforceability of 242 is ONLY as a result of Israels agreement and NOT as a UN resolution. Second,except fot the golan the agreement is fulfilled wrt the west bank by the succeeding Jordan Israel Treaty under which borders between the two are set and recognized by all at the Jordan river. There is NO legal document which gave clear enforceable legal rights to a palestinian state… there are only public pronouncements of such vague interests of the PLO. The Jordan Israel treaty clearly sets borders with Israel and none with any pal state therefore the Jordanians have not take into account any such pal state interest. Subsequent unfullfilled and breached agreements at Oslo and the road map are no longer applicable even though some parts are still informally followed.
The conclusion of this article is that the world has double standards towards Israel and in lynch mob consensus fashion. Inconsistent enforcement and double standards are in themselves an indication of illegitimate law and legal enforcement bodies. Hence, Israel should simply repudiate any legal aspect of the UN and the ICC as being biased, inconsistent and hence illegitimate. International law should only be cited by Israel as an explanation, not a justification, for any unilateral action it takes. Hence, it is reduced to a PR tactic rather than an expectation of justice in any venue. Law should become a tactic and weapon to be used in self interest… which is what the world does now wrt Israel.
The fact is that ALL prior agreements are de facto null and void including oslo and the road map. All the members of the road map have shown bias and disqualified themselves as legitimate brokers of a deal. The first thing is that Israel should declare the road map null and void. Second, it should order an assessment of the ramifications of the end of Oslo now that the agreement is breached through unilateral action AND the use of settlement issues which were NOT part of that agreement. That assessment should include investigating the removal of all those PLO and PA brought from Tunisia as a result of their abrogating through unilateral action the Oslo agreement.
The only important question is what will Israel do wrt the rights of Jews to live on every square inch of Judea Samaria. So far, Israel has avoided these rights with the excuse of Oslo and the road map… both are dead, and even 242 is fulfilled, dead, breached or like any other treaty the condititons have changed which render it obsolete. Focus should be on settlement outside the euro/obama designated ghetto boundaries of the major blocks…. all the other “diplomatic” BB brouhaha is just symbolic gesturism which will later be reversed… similar to his repetive freezing of custom taxes to the pals. The only real concrete action necessary is to settle Jews in YS and declare Jewish settlement in all of israel legal and legitimate…… the rest is fluff and obfuscating drama.
Moderation?????
This resolution references 242 and other past UN resolutions. Who knows if it has any coherent legal applicability even for reference purposes. It also contradicts the Charter of the UN and Article 80 which the Jewish Homeland Clause which allows for a Jewish Homeland in all of Judea/Samaria. The charter supersedes legally any resolutions.
The resolution is a definite spit in the face diplomatically to Israel. It shows Israel is not winning the PR battle on the conflict the Palestinians.
Israeli leadership has been shown that it needs to be much better in a number of areas:
1. Strategic Plan for Israel and Judea/Samaria (not managing the conflict). How to win the conflict.
a. Militarily
b. Diplomatically
c. Erase Oslo & PA
d. Build in Jordan Valley (too few Jews live in Jordan
Valley) not just Jerusalem Area Block and Towns
e. Annex all Jewish Towns in Judea/Samaria + Jordan
Valley after Trump takes office.