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PUTTING THE UN IN PERSPECTIVE
Jerusalem Post, April 13, 2011
For years, the Likud and the Right have been accused of fear-mongering, of playing upon the country’s real security concerns to turn their backs on peace. Time and time again [Israeli Prime Minister] Benjamin Netanyahu…has been accused of exaggerating the threats facing the country in order to avoid making concessions to the Palestinians. Many were the times he was mocked before Israel’s 2005 withdrawal from Gaza for saying that rockets would fall on Ashdod and Ashkelon if the IDF withdrew.…
Forget for a moment that many of the nightmare scenarios, such as the rockets on Ashkelon, have transpired; the Right is not the only part of the country’s political map that can spread fear. These days it is coming from the Left (and also from some in the Center), in the form of doomsday scenarios bandied about over what will happen if the UN General Assembly passes a resolution in September that recognizes a Palestinian state.
One argument gaining currency is that if the UN General Assembly does indeed recognize a Palestinian state, then the minute it does so the 600,000 Israelis living in east Jerusalem and the West Bank will, under international law, be considered to be occupiers of another UN state, and international consequences in the form of sanctions are sure to be harsh and swift. But this is overwrought. Since the conquest of the Golan Heights in 1967, Israel has been viewed by the international community as occupying the territory of another country. Yet Israel was not ostracized, nor were sanctions leveled against it.…
But whether the General Assembly will recognize a Palestinian state in September is in itself a “big if.” And any UN move must be measured on three levels: What the declaration itself might say, what operational steps it will call for, and what are the implications of such a resolution.
First of all, it is not clear what a resolution to recognize a Palestinian state will say. Since General Assembly resolutions are primarily political and symbolic in nature, the Palestinians historically have wanted to have as broad a majority of states on board as possible. The Palestinians in the past have not aimed for resolutions that would push away the European countries, but rather have sought the lowest common denominator that would keep countries like Britain, France and Germany on board.
What happens often is that the Palestinians bring a resolution, the Europeans propose a counter-resolution, and after a great deal of diplomatic haggling, a middle ground is hashed out. [Accordingly], on the recognition question, the Palestinians will have to determine how far they can go without losing Europe. As a result, the resolution that may, in the final analysis, come to the General Assembly is likely to be much milder than many people fear, simply because many in the EU are unlikely to support a Palestinian declaration recognizing a Palestinian state as-is, within the 1967 lines, with east Jerusalem as its capital, without being able to ensure Palestinian control over that territory.…
Regarding operational significance, UN General Assembly resolutions are largely political and symbolic, with ramifications solely inside the UN system. A recognition-of-statehood resolution could call for an advisory opinion by the International Court of Justice, as was done in 2004 when the GA sent [Israel’s decision to construct a] security barrier to The Hague. The ICJ ruled against Israel, but the fence still remains.
Under the UN Charter, to become a member state, a new nation needs a Security Council resolution, and a two-third majority inside the GA. It is highly unlikely the US would let such a resolution through the Security Council, so the Palestinians would be left with the General Assembly majority.
In this scenario the Palestinian hope is that this would give them full rights as a state within the UN system, including recognition of the prohibition of the use of force against it. But even the UN recognizes the right of self-defense, which means Israel would have legal rights to respond to attacks coming from Palestinian territory.
Regarding sanctions, the General Assembly can recommend sanctions, but this would not be legally binding on anyone. In 1981, when the UN General Assembly recommended sanctions against South Africa to promote Namibian independence, these sanctions were largely adopted because the world saw South Africa as illegitimate and was interested in those types of sanctions. That is not our case regarding Israel.
Outside of settlement goods, there is no real conversation in Europe at this time about a wholesale sanctioning of Israel. While the idea has some traction on the radical Left and in college campuses, the governments of the world’s democracies—despite all the Israel Apartheid Weeks—are not there.…
Furthermore, the General Assembly can’t force Israel to withdraw. It’s important to remember that the UN doesn’t create states, it recognizes them. On this note it is a bit ironic that the Arabs, who in 1947 rejected the UN vote in favor of the partition and then attacked the fledgling Jewish state, are now looking to that same body as the moral authority for the creation of a Palestinian state.
The true question revolves around the consequences of this move beyond the UN context.… Such a declaration would be an energizer for those seeking to marginalize Israel, and would illustrate the degree to which the world wants one thing, and Israel something else.
Recognition of statehood would make a return to negotiations much more difficult, empowering the false idea that an imposed solution can take the place of an agreed-upon one, and changing the whole “negotiation” trajectory of the diplomatic process of the past two decades.
And, finally, such a move could possibly prompt another popular Palestinian uprising.
But even with all that in mind, one should still keep an honest eye on what it is exactly that the UN General Assembly can and cannot do, and not exaggerate the impact of a GA resolution.
IMPENDING ‘DIPLOMATIC TSUNAMI’ IS GREATLY EXAGGERATED
Jerusalem Post, April 11, 2011
The Palestinian Authority’s declared intention of seeking admission to the United Nations from the General Assembly would be considered a triumph for the Palestinians and would ostensibly put Israel in instant legal and diplomatic jeopardy if it does not promptly withdraw to the armistice lines of 1949. But these assumptions give the possible GA vote far more significance and legitimacy than it deserves.
First, the General Assembly can only admit states upon the recommendation of the Security Council, where an American veto appears to block the way. In the absence of such a recommendation, seeking recognition from the GA resolution is at best a legal nullity, and a mockery of the procedures enshrined in the UN Charter.
Even within the scope of its role in admitting new members, the GA only has the power to admit states, not the power to create or determine members’ borders. (That role, within the UN system, would fall to the International Court of Justice or the Security Council). The Security Council has already determined in Resolution 242, adopted in the wake of the Six Day War, that Israel need not return all of the land it took from various Arab states in that conflict. Certainly the GA cannot overrule the Security Council. Moreover, one of the first opinions of the Court held that decisions about membership cannot be leveraged to push other substantive agendas. Thus it is meaningless to speak of the GA recognizing Palestine with any particular set of borders. Just as the GA had no binding role to play in 1947, when it came out in favor of a partition of the Palestine Mandate, it can no more enforce partition now.
Another major fallacy contends that the GA’s recognition of a Palestinian state within all of the Green Line would automatically make Israel an international outlaw, because it would be occupying some of that territory. Palestinian leaders dramatically claim that Israel would be in “daily violation” of the GA resolution. If the GA’s resolutions controlled Israel’s legitimacy, it would long have ceased to exist within any borders. The international parliament in 1975 famously adopted its “Zionism equals racism” resolution, condemning the very project of a Jewish state in the Middle East within any borders. Yet the endorsement of the idea by an overwhelming vote of the GA did not make it real or true, and the resolution was eventually rescinded, the only GA measure to meet such a fate.
Even if Palestine were properly admitted to the UN, the occupation of territory within the internationally recognized borders of a UN member by another member is not uncommon. It does not result in condemnation, boycotts or even any attention. For example, Turkey occupies half of Cyprus; Russia occupies several sections of Georgia, Moldova and other former Soviet states. And that is just tranquil Europe. Indeed, Russia significantly expanded its occupation and colonization of Georgia in the war two years ago, yet it remains an erstwhile member of the Middle East Quartet. Even if a Palestinian state were announced by the GA, conflict would exist only over a small portion of the territory. Because of the Oslo process, which turned half of the West Bank over to Palestinian control, and the 2005 disengagement, which took all Israeli troops and civilians out of Gaza, Israel’s central demands now involve sovereignty over settlements, which make up a small percentage of the total area. A Palestinian state would join the long list of states that have unresolved border disputes with neighbors. None of these situations results in a diplomatic tsunami.
To be sure, GA recognition of Palestine may be turned into an occasion for further demonizing and isolating the Jewish state. But that would not be the obvious and natural effect of such a resolution. It would simply be the illegitimate use to which Israel’s critics and enemies may choose to put it, a use that has nothing to do with international law or neutral principles. Those nations and organizations willing to jump on such a hollow excuse for a diplomatic assault on Israel have clearly already made up their minds.
Delegitimization by the UN can be a self-fulfilling prophecy. When friends of Israel fret about delegitimization by the GA, they unwittingly give the body more power than it has.
(The writer is a professor of law at Northwestern University,
specializing in international and constitutional law.)
ISRAEL MUST NOT SUCCUMB TO FALSE DIPLOMATIC ALARMS
Haaretz, April 12, 2011
Anyone who has helped design alarms and early warning systems knows the phenomenon of false alarms. They bedevil both the developers and those who are supposed to be protected by the system. The systems being put in place to warn of oncoming “tsunamis” are also affected by this false alarm syndrome. The more sensitive the system, the more likely it is to sound the alarm when there is nothing to actually be alarmed about. Israel has its own tsunami warning system—and it is none other than our defense minister, [Ehud Barak], who has already sounded the alarm.
According to him, Israel will be hit by a political tsunami in September. His warning bell is being echoed by many who demand the government launch a daring initiative before it is too late, before the tsunami hits us. But they have a pleasant surprise awaiting them: Israel will still be here in September, and for many many months to come.…
States have never been created by UN declarations and never will be. For those who have forgotten, Israel was not created by UN resolution 181 in November 1947, but by David Ben-Gurion’s declaration of Israeli independence on May 15, 1948 and by the IDF’s ability to take and control the areas of the new state.
A UN declaration, whether at the Security Council or the General Assembly, recognizing a Palestinian state within the borders of the April 1949 armistice lines with Jordan, with Jerusalem as its capital, will be no more effective than Security Council resolution 1701, which prohibited Hezbollah from military operations in southern Lebanon, or General Assembly resolution 3379, which equated Zionism with racism.
If this latest declaration is actually passed, it will merely serve as another reminder of the impotence of the United Nations and its irrelevance when it comes to dealing with international conflicts. The U.S. government must surely be aware of this.
All this brouhaha about the coming tsunami skirts the fundamental issues preventing an agreement between Israel and the Palestinians. Namely, that such an agreement must constitute the end of the conflict, and that the Palestinian signatories to the agreement must be capable of assuring that no acts of terror will be launched from territories that Israel turns over as part of the agreement.
The current Palestinian spokesman, or president if you like, Mahmoud Abbas, is not capable of satisfying either of these conditions. At best, he represents only half of the Palestinians, and regardless of what commitments he undertakes, Hamas and other Islamic jihadists will have plenty of additional claims on Israel even after Abbas signs an agreement. His control over areas in Judea and Samaria is limited at best, and he certainly cannot be relied on to prevent acts of terror against Israel from those areas Israel would withdraw from.
Until the Palestinians get their act together, there seems little chance of reaching an Israeli-Palestinian agreement. That is the sad truth, and no amount of theatrics by Abbas, and maneuvering by the Quartet, the United States and the United Nations, or all of them in concert, will change that. That is what Israeli spokesmen should be explaining to everyone—friends, do-gooders and enemies alike.…
The important thing is to stay calm, not press the panic button, and not listen to those familiar faces who reappear every now and then with a new-old initiative suggesting that Israel announce it is prepared to withdraw to the “‘67 borders.” And to not make any hasty, half-baked statements under the illusion that they will appease those applying pressure on Israel.… Only when it is clear that the Israeli government is standing firm on its positions will the pressure on Israel be relaxed.
(Mr. Moshe Arens is a former Israeli Minister of Foreign Affairs, and has served
as Israeli Defense Minister on three occasions. Mr. Arens will be the keynote speake
at CIJR’s upcoming Gala, scheduled for Wednesday, June 15, 2011.)
AN OPEN LETTER TO PRESIDENT OBAMA
Jerusalem Post, April 13, 2011
Dear Mr. President,
During your recent meeting with American Jewish communal leaders, you reassured them of “America’s unshakable support for Israel’s security, opposition to any effort to delegitimize it or single it out for criticisms, and commitment to achieve a peace that will secure the future for Arabs and Israelis alike.” Moreover, you reaffirmed your undertaking to keep US military aid at its current high levels.
On the eve of Pessah, when we celebrate our freedom from bondage, permit me to explain why, despite such assurances, most Israelis still harbor profound anxiety about your attitude toward our security.
I preface this with a reference to your disturbing remarks at the meeting, when you urged them to “search your souls” over whether Israel is genuinely serious about peace, and called on them to encourage us to take “bold steps.” Many of us consider such remarks as exemplifying the moral equivalence you consistently apply to our defensive actions in relation to terror attacks, and your penchant for condemning us while largely ignoring Palestinian intransigency.
You appear to have endorsed the Arab narrative, which ignores the fact that it was the Jewish state that suffered aggression from its neighbors preceding the ‘67 war. You also seem to disregard the fact that the vast majority of Israelis today—including our prime minister—have no desire to rule over Arabs, and would dearly like to separate from them.
We may debate the amount of land beyond the 1949 armistice lines that Resolution 242 entitles us to retain, but the discussion is over minor percentages. Besides, two prime ministers offered the Palestinians over 90 percent of these territories—and were rebuffed.
Today our region is undergoing unprecedented upheaval. For years we have been confronting a xenophobic, Islamic Iran, on the eve of achieving nuclear status, which repeatedly declares its intention to wipe us off the face of the world. Now the entire Arab world is in the throes of revolutionary turmoil. But far from emerging as free societies, new Arab regimes may prove to be even more committed to radical Islam than their corrupt predecessors. We fear that we will again be surrounded by fanatical rejectionist states committed to our destruction.
In this context, Mr. President, Israelis ask: What do you really expect of Prime Minister Benjamin Netanyahu and his government? Bear in mind that unilateral withdrawal from Gaza led to increased missile attacks. And since your election, Israel has made all the concessions. Last year, under enormous pressure from you, Netanyahu took the unprecedented step of imposing a 10-month freeze on settlement construction, even in areas that will unquestionably remain part of Israel. He also committed the government to endorsing a two-state solution—a major policy reversal in his Likud party.
In contrast, beyond making duplicitous statements—concealed from their constituents—endorsing peace, the Palestinian leaders remained utterly intransigent, unwilling to compromise on a single issue, even refusing to negotiate. In fact, following Al Jazeera disclosures of compromises allegedly reached during negotiations with prime minister Ehud Olmert, the PA leaders blatantly denied having offered any concessions. Surely this suggests that when negotiating with Olmert, Abbas was either duplicitous or conscious that brainwashing his constituents to hate us had been so effective that any genuine Palestinian accommodation was inconceivable.…
Besides, the PA has been adamant in its refusal to recognize us as a Jewish state. Indeed, whereas 20% of the population of Israel consists of Arab and Muslim citizens, our “moderate peace partner” has proclaimed that a Palestinian state would be judenrein, insisting that he would not tolerate the presence of a single Jew. Mr. President, can you ignore such blatantly racist remarks from a leader you repeatedly refer to as a moderate peace partner? Many of us believe that the principal objective of Abbas, like his Hamas kinsmen, is still the dissolution of Jewish sovereignty; that he is merely employing Yasser Arafat’s tactics of extracting unilateral concessions and attempting to dismantle us in stages.
However, even if we accept your premise that Abbas is genuinely willing to make peace, can you, seriously visualize him having the power to deliver? Besides, you are aware that Hamas is a genocidal organization, committed to killing all Jews. Yet the man you insist is a moderate peace partner unequivocally repeats his desire to merge his PA with these Islamic psychopaths. Is it reasonable to expect us to support the creation of a neighboring state in which a dominant group remains proudly committed to our destruction?…
And finally, Mr. President…when you urge your Jewish constituents to press Israel to make further unilateral concessions, it epitomizes the concerns we share about your inability to appreciate the perils we face. It also fuels our fear that you are contemplating further pressure on us to retreat behind the 1949 armistice lines—which would endanger our very existence.
I urge you to reinstate the principles outlined by the Bush administration. I refer to US rejection of the right of return for Palestinian refugees; recognition of demographic changes in relation to the major settlement blocs, not seeking to impose a return to the 1949 armistice lines; and support for defensible Israeli borders.
I believe I echo the vast majority of my fellow Israelis when I appeal to you to provide us with the confidence to move forward by taking these elements into account and review your current policy.