Letter to the UN Secretary General:
A UN Resolution to Recognize a Palestinian State within the “1967 Borders” Would Be Illegal
Published May 2011 by Jerusalem Center for Public Affairs
The following is a letter drafted jointly by lawyers of the Legal Forum for Israel and by Amb. Alan Baker, Director of the Institute for Contemporary Affairs at the Jerusalem Center for Public Affairs.
The letter is directed to the Secretary-General of the United Nations, and signed by jurists and international lawyers from around the world.
The letter cautions the Secretary General as to the inherent illegality and harm to the UN and to the Middle East peace process which would be caused by the adoption of a resolution declaring a Palestinian state and determining its borders.
His Excellency Ban Ki-Moon,
Secretary-General of the United Nations,
1st Avenue & 44th St.
New York, NY 10017
May 25, 2011
Re: The Proposed General Assembly Resolution to Recognize a Palestinian State “within 1967 Borders” – An Illegal Action
We, the undersigned, attorneys from across the world who are involved in general matters of international law, as well as being closely concerned with the Israeli-Palestinian dispute, appeal to you to use your influence and authority among the member states of the UN, with a view to preventing the adoption of the resolution that the Palestinian delegation intends to table at the forthcoming session of the General Assembly, to recognize a Palestinian state “within the 1967 borders.”
By all standards and criteria, such a resolution, if adopted, would be in stark violation of all the agreements between Israel and the Palestinians, as well as contravening UN Security Council Resolutions 242 (1967) and 338 (1973) and those other resolutions based thereon.
Our reasoning is as follows:
1. The legal basis for the establishment of the State of Israel was the resolution unanimously adopted by the League of Nations in 1922, affirming the establishment of a national home for the Jewish People in the historical area of the Land of Israel. This included the areas of Judea and Samaria and Jerusalem, and close Jewish settlement throughout. This was subsequently affirmed by both houses of the U.S. Congress.
2. Article 80 of the UN Charter determines the continued validity of the rights granted to all states or peoples, or already existing international instruments (including those adopted by the League of Nations). Accordingly, the above-noted League resolution remains valid, and the 650,000 Jews presently resident in the areas of Judea, Samaria and eastern Jerusalem reside there legitimately.
3. “The 1967 borders” do not exist, and have never existed. The 1949 Armistice Agreements entered into by Israel and its Arab neighbors, establishing the Armistice Demarcation Lines, clearly stated that these lines “are without prejudice to future territorial settlements or boundary lines or to claims of either Party relating thereto.” Accordingly, they cannot be accepted or declared to be the international boundaries of a Palestinian state.
4. UN Security Council Resolutions 242 (1967) and 338 (1973) called upon the parties to achieve a just and lasting peace in the Middle East and specifically stressed the need to negotiate in order to achieve “secure and recognized boundaries.”
5. The Palestinian proposal, in attempting to unilaterally change the status of the territory and determine the “1967 borders” as its recognized borders, in addition to running squarely against Resolutions 242 and 338, would be a fundamental breach of the 1995 Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip, in which the parties undertook to negotiate the issue of borders and not act to change the status of the territories pending outcome of the permanent status negotiations.
6. The Palestinians entered into the various agreements constituting what is known as the “Oslo Accords” in the full knowledge that Israel’s settlements existed in the areas, and that settlements would be one of the issues to be negotiated in the permanent status negotiations. Furthermore, the Oslo Accords impose no limitation on Israel’s settlement activity in those areas that the Palestinians agreed would continue to be under Israel’s jurisdiction and control pending the outcome of the permanent status negotiations.
7. While the Interim Agreement was signed by Israel and the PLO, it was witnessed by the UN together with the EU, the Russian Federation, the U.S., Egypt, and Norway. It is thus inconceivable that such witnesses, including first and foremost the UN, would now give license to a measure in the UN aimed at violating this agreement and undermining major resolutions of the Security Council.
8. While the UN has maintained a persistent policy of non-recognition of Israel’s sovereignty over Jerusalem pending a negotiated solution, despite Israel’s historic rights to the city, it is inconceivable that the UN would now recognize a unilaterally declared Palestinian state, the borders of which would include eastern Jerusalem. This would represent the ultimate in hypocrisy, double standards, and discrimination, as well as an utter disregard of the rights of Israel and the Jewish People.
9. Such unilateral action by the Palestinians could give rise to reciprocal initiatives in the Israeli Parliament (Knesset) which could include proposed legislation to declare Israel’s sovereignty over extensive parts of Judea and Samaria, if and when the Palestinians carry out their unilateral action.
It appears to be patently clear to all that the Palestinian exercise, aimed at advancing their political claims, represents a cynical abuse of the UN Organization and of the members of the General Assembly. Its aim is to bypass the negotiation process called for by the Security Council.
Regrettably, this abuse of the UN and its integrity, in addition to undermining international law, has the potential to derail the Middle East peace process.
We trust that you will use your authority to protect the UN and its integrity from this abuse, and act to prevent any affirmation or recognition of this dangerous Palestinian initiative.
Signed by jurists and international lawyers
Munich, 2 June 2011
On 30 May the newsletter of the Israeli Embassy in Berlin reproduced a letter published by the “Jerusalem Center for Public Affairs” which appealed to the Secretary-General Ban Ki-moon “to use your influence and authority among the member states of the UN” to prevent the adoption of the resolution to recognize a Palestinian state within the borders of 1967. The letter originates from a source whose political right-wing preferences are beyond question.
One might be inclined to put the paper aside like so many other official communications. But, we should give it our attention because of its apparent use of international law and the consequences of that. The Jerusalem Center for Public Affairs, led by former Israeli UN Ambassador Dore Gold, is vigorously strengthening an argument in order to transfer the official Israel commitment to a two-state solution into the wastepaper-basket.
The authors base their argument on the Mandate of the League of Nations of 24 July 1922 which affirmed the historical bonds of the Jewish people to Palestine as the rationale for the restoration of the Jewish national home. It did not mention the establishment of a Jewish state. The “jurists and international lawyers” – whose names remain unmentioned – deliberately ignore the Churchill White Paper of 3 June 1922 which accentuated the British viewpoint that not all of Palestine – including today’s Kingdom of Jordan – should be converted into a Jewish national home.
Accordingly, one year later, on 15 May 1923 – exactly 25 years before Israel was founded – the proclamation of the Hashemite Emirate of Transjordan took place. On 30 June 1922 both houses of the U.S. Congress confirmed the statement of the League of Nations and the British White Paper. The Mandate for Palestine went into force on 29 September 1923.
Employing their curious interpretation of the League of Nations’ declaration, the authors try to rehabilitate at least some of the revisionist positions of Zeev Jabotinsky: namely that the “Palestinian question [which meant the Zionist question] be solved in the sense of a Greater Palestine including Transjordan,” as Joseph B. Schechtman and Yehuda Benari summarized the political ideas of Jabotinsky and his allies in their sympathetic “History of the Revisionist Movement.”
By returning to those positions the authors find that Israel undeniably can claim an entitlement under international law to “Judea and Samaria” at least. Consequently, they reject the UN Partition Resolution 181 of 29 November 1947 – which established inter al ia Jerusalem as a “corpus separatum” – and emphasize that the Rhodes’ Ceasefire Agreement with Jordan of 3 April 1949 along the Green Line is “without prejudice to future territorial settlements or boundary lines or to claims of either Party relating thereto.”
In international relations usually power secures desired advantages. By publishing the letter, Israel’s diplomatic mission in Berlin implies it has obtained the consent of its government. Dore Gold, head of the JCPA, can certainly count on the responsive compassion of Benyamin Netanyahu and Avigdor Lieberman. As for the Palestinians, they definitely need no further proof that the Israeli government is not interested in result-oriented negotiations and that they must work on their own for the international recognition of Palestine. (Netanyahu’s rhetoric leap from the “painful” to the “generous compromises” a week ago in Washington is irrelevant because it is unbelievable that he is going to deliver donations in either case.
Palestinian endeavours and Europe’s hesitancy
Ramallah has to deposit its request in New York in mid-July to organize the expected outcome of the proceedings of the gathering of the General Assembly starting in mid-September. But first of all the Palestinian draft must prevail over the hurdles of the Security Council whose presidency is held by Germany in July 2011. Given what she has declared before Chancellor Angela Merkel will try to effect her understanding of decision-making: “The current state” [of deadlock between Israelis and Palestinians] is indeed “totally unsatisfactory”, but “unilateral measures of either side will lead (…) into a dead end.” If the opposition parties in the Bundestag fail to produce counterweights arguments, the German ambassador to the UN will be urged to reject the Palestinian claim, as the U.S. administration is expected to do.
It’s Netanyahu who clings to unilateral measures. On 31 May – on “Jerusalem Day” – he underscored his commitment to authorize more building permits than ever before in the city. Indeed, the Israeli Prime Minister delivered what Chancellor Merkel requested of him during the third bilateral government consultations at the end of January: he laid his political intentions on the table. By revealing his map Netanyahu is relying once again on a recent survey which showed 66 percent of the adult Israelis are determined that no part of Jerusalem should be passed to establish a future Palestinian capital. Furthermore, 73 percent would protest against any international control of the holy [Jewish] sites as part of a peace treaty. Reuven Rivlin, Likud member and Speaker of the Knesset, noted 24 hours later that not even the postal services are functioning properly in the city between west and east…
Still, EU policy does not face up to the reality and is uncoordinated. On 31 May Brussels promised a grant of two million Euros to the Palestinian Authority to develop the Palestinian infrastructure in East Jerusalem and to cover the costs if a Palestinian resident takes out a lawsuit against Israeli activities which cause him or her disadvantage. One should not be surprised when Europe yet again expresses sorrow at Netanyahu’s announcement. Should one attribute deep-seated naivety to political weaknesses or moan about appalling confusions?
If Israel’s policy raises claims on the West Bank and on East Jerusalem, however legitimate they may be, it does not include the Palestinian population. On the contrary, at best Israel is not interested in them, at the least, Israel can drag confidence from Merkel’s statement in the Bundestag that “any Palestinian government [must] renounce violence and recognize Israel’s right to exist.” From this, Germany has already declared who the aggressor is, regardless of who actually resorts to violence. Reciprocity of behaviour was and is not required.
“Who Owns Jerusalem”:>A CAMERA Hoax Approved for MCLE Credit
CAMERA’s Latest Scam
By Elise Hendrick, Meldungen aus dem Exil, blog
January 21, 2011
The San Remo Irrelevancy and the Occupied Palestinian Territory
Sometimes the much-maligned Facebook ads have their merits. Last night, I happened upon a Facebook ad offering a course approved by the State Bar of California for credit towards the Bar’s minimum continuing legal education (MCLE) requirements entitled “Who owns Jerusalem?”.
It turned out to be an advertisement for a “course”, sponsored by the “pro”-Israeli PR organisation CAMERA and held by an obscure Canadian lawyer by the name of Jacques Gauthier, claiming that an even more obscure document from 1920 known as the “San Remo Resolution” had vested full legal title to the entirety of Palestine to Israel.
Before we turn to the content of the San Remo document, let us recall what the International Court of Justice, the supreme judicial body in the international system, concluded about the legal status of the territories occupied in 1967 (including East Jerusalem) after exhaustive analysis of the matter:
“78. The Court would observe that, under customary international law as reflected (see paragraph 89 below) in Article 42 of the Regulations Respecting the Laws and Customs of War on Land annexed to the Fourth Hague Convention of 18 October 1907 (hereinafter “the Hague Regulations of 1907″), territory is considered occupied when it is actually placed under the authority of the hostile army, and the occupation extends only to the territory where such authority has been established and can be exercised.
The territories situated between the Green Line (see paragraph 72 above) and the former eastern boundary of Palestine under the Mandate were occupied by Israel in 1967 during the armed conflict between Israel and Jordan. Under customary international law, these were therefore occupied territories in which Israel had the status of occupying Power. Subsequent events in these territories, as described in paragraphs 75 to 77 above, have done nothing to alter this situation. All these territories (including East Jerusalem) remain occupied territories and Israel has continued to have the status of occupying Power.”
Legal Consequences of the Construction of a Wall on the Occupied Palestinian Territory, paragraph 78 (emphasis added).
Put briefly, under the basic international legal principle of the “inadmissibility of territorial acquisition by war”, Israel has no claim to sovereignty over any of the territories occupied in the 1967 war. Those territories – the West Bank, Gaza, and East Jerusalem – are and remain “occupied territories”. The Court based this conclusion on an exhaustive study of the relevant legal framework, including foundational documents of international humanitarian law such as the Hague Regulations of 1907, the General Assembly’s Partition Resolution (on the strength of which the State of Israel was founded), and various Security Council resolutions calling for the withdrawal from the occupied territories (UNSC 242) and declaring “totally invalid” “all legislative and administrative actions taken by Israel to change the status of the: City of Jerusalem, including expropriation of land and properties, transfer of populations and legislation aimed at the incorporation of the occupied section […]” (UNSC 298).
CAMERA and Gauthier claim that the San Remo document negates all this, and gives Israel full title not only to the territory within Israel’s recognised (pre-June 1967) borders, but to the territory occupied in the 1967 war. If this is true, then the entire international legal consensus on the status of the Occupied Palestinian Territory is dead wrong.
This, of course, raises the question: Is it true? In order to answer this question, two fairly obvious requirements must be met:
(a) The San Remo document must actually grant sovereignty to Israel (or, given that Israel would not exist for another 28 years, to a “Jewish state” to be created on the entire territory of Mandatory Palestine); and
(b) It must continue to be valid and applicable, meaning that any and all subsequent enactments must either not concern the subject matter of the San Remo document, or, if related, not conflict with it (the “last-in-time” principle – lex posterior derogat priori).
Note that (b) is a subsidiary question. If the San Remo document does not actually grant sovereignty over the territory in question to Israel or a future “Jewish state”, then its continuing vitality is of no relevance to whether Israel has any claim to the Occupied Palestinian Territory. Thus, we must first turn to the relevant provisions of the San Remo document:
(a) To accept the terms of the Mandates Article as given below with reference to Palestine, on the understanding that there was inserted in the proces-verbal an undertaking by the Mandatory Power that this would not involve the surrender of the rights hitherto enjoyed by the non-Jewish communities in Palestine; this undertaking not to refer to the question of the religious protectorate of France, which had been settled earlier in the previous afternoon by the undertaking given by the French Government that they recognized this protectorate as being at an end.
(b) that the terms of the Mandates Article should be as follows:
The High Contracting Parties agree to entrust, by application of the provisions of Article 22, the administration of Palestine, within such boundaries as may be determined by the Principal Allied Powers, to a Mandatory, to be selected by the said Powers. The Mandatory will be responsible for putting into effect the declaration originally made on November 8, 1917, by the British Government, and adopted by the other Allied Powers, in favour of the establishment in Palestine of a national home for the Jewish people, it being clearly understood that nothing shall be done which may prejudice the civil and religious rights of existing non-Jewish communities in Palestine, or the rights and political status enjoyed by Jews in any other country.”
In other words, the San Remo document calls for the implementation of the Balfour Declaration, which called for the establishment of a “national home for the Jewish people” in Palestine, and twice provides that the “rights hitherto enjoyed”/”civil and religious rights” shall in no way be impaired by the establishment of this “national home”. There is no reference to a “Jewish state”, nor any transfer of sovereignty to “the Jewish people” or to anyone else, merely a “national home” for Jews “in Palestine”. Even more fatally to Gauthier’s claims, the San Remo document makes no determination whatsoever as to boundaries, only noting that boundaries are to be determined on some later date by the Principal Allied Powers.
When I raised these fairly obvious issues on the Facebook event page set up by CAMERA Regional Coordinator, attorney Talia Shulman Gold, she claimed that “national home” and “state” were the same thing: “Just what do you think establishing a “national home” meant anyway, Elise?”
While this assertion may have some superficial appeal owing to the peculiarity of the phrase “national home”, there remains an obvious problem. The term “state” was in common use at the time that the San Remo document was signed. The drafters of the document can be reasonably assumed to have been aware of the term “state” and of its meaning. And yet, they did not use the term “state” to describe what they were creating for “the Jewish people” in Palestine, preferring the term “national home”. If they had intended to establish a legal basis for the creation of a “Jewish state”, they could quite simply have referred to “the establishment in Palestine of a state for the Jewish people”. Instead, they specifically chose to use a different term. To claim, as Shulman Gold has (and Gauthier must), that the drafters actually meant “state” is to claim that they did not really mean what they wrote.
Even if we were to accept, for the sake of argument, that it is permissible to read “state” where “national home” is written, the central claim – that the San Remo document gives Israel full sovereignty over the entirety of Mandatory Palestine, including the Occupied Palestinian Territory – runs into an even more serious problem: The San Remo document makes no determination at all with regard to boundaries, except to provide that “the administration of Palestine, within such boundaries as may be determined by the Principal Allied Powers, [is entrusted] to a Mandatory” (emphasis added). The Principal Allied Powers left the determination of the boundaries of Palestine for a later date.
In other words, the Gauthier-CAMERA claim that the San Remo Resolution made a final and irrevocable determination that the West Bank, Gaza, and East Jerusalem should be contained within the boundaries of the State of Israel is a cynical fraud. Israel’s lawful boundaries are the internationally recognised, pre-June 1967 boundaries, and the West Bank, Gaza, and East Jerusalem are – as was authoritatively reaffirmed by the International Court of Justice – Occupied Palestinian Territory.
A Hoax Worthy of Joan Peters
It is worth noting that this blatant misrepresentation of the content and legal status of the San Remo Resolution is not the only fraud promoted by the “Committee for Accuracy in Middle East Reporting in America”. CAMERA’s “suggested book list” includes such lowlights of American intellectual life as Joan Peters’ discredited From Time Immemorial, which grossly falsified archival documents in an effort to claim that Palestine was uninhabited on the eve of Zionist colonisation, and Alan Dershowitz’ The Case for Israel, which plagiarises numerous passages from From Time Immemorial, and embellishes on it with further absurdities.
Why would an organisation ostensibly dedicated to “accuracy” in media reporting promote a long-since-exposed hoax like From Time Immemorial (absurdly claiming that “Joan Peters dispels the myth of Zionist dispossession of “native” arabs [sic] in Palestine, drawing on rarely examined archives and statistics. She makes a credible case for Jewish indigenous habitation lasting thousands of years; a groundbreaking study necessary to any discussion of the current conflict in the region.”) and a phantasmagorical distortion of the San Remo Resolution and the legal status of the Occupied Palestinian Territory?
Obviously, these stories aren’t being promoted for their “accuracy”, so there must be some other motive. What goal could CAMERA be pursuing by promoting a work that falsely claims that Palestine was uninhabited prior to Zionist colonisation, and that an obscure 1920 document grants Israel full title to the Occupied Palestinian Territory? Simple: Promoting works such as these provides a pretext under which moral and legal objections to the constant violations of Palestinian rights by the US and Israel – from the ethnic cleansing (“Nakba”) of 1948 to the 1967 occupation and the displacement of Palestinians through state-subsidised illegal settlements – can be dismissed. It provides rhetorical cover for some of Israel’s most severe crimes.
They Give CLE Credit for This?
It is not particularly shocking that CAMERA is promoting a hoax that provides fraudulent reasons for ignoring Palestinian human rights. This is what they do, and they make no bones about it (even Dershowitz at least tried to camouflage his reliance on the Peters hoax). However, it should be the slightest bit alarming that the State Bar of California has seen fit to give attorneys continuing education credits for listening to a lecture that promotes it.
The California State Bar’s standards for approving MCLE activities are set forth in Rule 3.501 of the Rules of the State Bar, which requires that the activity “relate to legal subjects directly relevant to members of the State Bar and have significant current professional and practical content” (Rule 3.501(A)) and that the provider “have significant professional or academic experience related to its content” (Rule 3.501 (B). Unless California is a hotbed of litigation on the legal status of the Occupied Palestinian Territory, it is hard to see how even an accurate lecture on “Who Owns Jerusalem?” could be considered “directly relevant” or to have “significant current professional and practical content”.
Moreover, it seems a bit of a stretch to claim that Gauthier, who, based on a Google search for ‘“Jacques Gauthier” Israel’ (the latter term added to narrow down the vast multitude of people called ‘Jacques Gauthier’ in the world), has never held an academic post, has never published in a peer-reviewed journal of international law, and whose “academic or professional experience” appears to be limited to giving lectures like this to various right-wing Israeli PR organisations, qualifies as having had “significant academic or professional experience” on the subject.
There is no explicit requirement in the rules on approval of MCLE activities that an activity provide an accurate portrayal of applicable law; however, it seems fairly reasonable to assume that the California State Bar would not grant MCLE approval to, say, the hucksters who claim that there is no obligation to pay income taxes, or the right-wing “common law” militias who claim that the Fourteenth Amendment is invalid and that the only competent courts in the US are the “common law courts” they have created. Lest these seem like somewhat extreme examples, it is worthwhile to recall at this point that we are talking about a lecturer who claims that the entire international legal consensus on the status of the West Bank, Gaza, and East Jerusalem is wrong, and bases this on a blatant distortion of an obscure 1920 document that has long since been superseded, in an effort to deny the Palestinians any right to self-determination or even protection under the Fourth Geneva Convention. This is a serious fraud.
The State Bar of California needs to answer a few questions in this matter:
(a) Is the “Who Owns Jerusalem” lecture in fact approved as an MCLE activity, as is claimed on its Facebook event page?
(b) What representations were made in the request for approval?
(c) Was the request signed by a member of the State Bar of California?
(d) On what basis was the lecture found to have “direct relevance” and “significant current professional or practical content”?
(e) How in-depth is the Bar’s review of proposed MCLE activities?
(f) What safeguards, if any, are in place to prevent the approval of fraudulent providers?
1] Perhaps thinking the better of allowing open debate on the original Facebook event page, Shulman Gold has since deleted it. However, in anticipation of this, I had already saved the relevant threads to a Word document