Sunday, September 18, 2011

Who actually has legal rights to Palestine? Part 2

Now that we've established the legal framework in place before the creation of the State of Israel, we can discuss the agreements, rights and obligations which followed it, particularly UN Security Council Resolution 242.
(If you haven't read Part 1 yet, I highly recommend it, it's good for your health)

Is Israel always in the UN's cross hairs?

United Nations Security Council Resolution 242 does not call for the return to 1967 borders

I assume most of you were already familiar with this concept. Still, it never hurts to be reminded of the context around this resolution. There are many points of discussion in regards to this resolution:
  • Does every single word matter?
  • Which version actually counts, the English or the French version?
  • Is this resolution legally binding?

Yes, every word counts. Otherwise they wouldn't have bothered writing them, would they?
Let's revisit the actual text for reference.
Affirms that the fulfillment of Charter principles requires the establishment of a just and lasting peace in the Middle East which should include the application of both the following principles:
(i) Withdrawal of Israel armed forces from territories occupied in the recent conflict;
(ii) Termination of all claims or states of belligerency and respect for and acknowledgment of the sovereignty, territorial integrity and political independence of every State in the area and their right to live in peace within secure and recognized boundaries free from threats or acts of force.
It very clearly says "from territories" rather than "from the territories", which makes a huge difference in the English language. The absence of a definite article ("the") means that a full withdrawal was not requested from Israel. If it were, it would very clearly clash with the "live in peace within secure and recognized boundaries" in the point directly following it. The 1949 armistice lines were never secure boundaries.

It also says that Israel's sovereignty, territorial integrity and political independence should be recognized. It does not say the same for the "Palestinian State".
"Oh really?" I can already hear you say, "it says 'every State in the area'". Quite right, it does dear friends. However, given the fact that there was no Palestinian state in 1967 (or ever mind you), they were not a subject of interest in regards to this UN resolution. Who was?
Israel, Jordan, Egypt, Lebanon and Syria. (The latter only accepted the resolution in 1973).
The Security Council resolution 242 of November 22, 1967 is often referred to as the source of rights and obligations for the parties in the Middle East. I focus on Jerusalem. I take the position that again, rights have been granted based on the recognition of historical rights, based on the principle of reconstituting what the Jewish people used to have. The Jewish state and the Jewish people have done nothing to relinquish, surrender the rights that were given in respect to that territory.

Now, if you've ever looked at the original grainy resolution (you can find a pdf of it on the UN's site), you'll see that it's in two languages side by side: English and French. Where in English it says "from territories", in French it says "Retrait des forces armées israéliennes des territoires occupés lors du récent conflit."

Houston, we have a problem.
The French text submitted by Mali and Nigeria, over which there was no vote, has a definite article! That means that people can just ignore the text in English, wave the French text around and say "Israel needs to abide by this resolution which says that they need to completely withdraw from the West Bank!".

No they can't.

Not that this stops anyone, but they can't. You see, legally, in case of texts clashing in regards to their translations, there is always one language which has precedence. In this case, since the text which was originally submitted to the UN Security Council and later voted on was a British text, it was obviously written in English, and that's the only legally valid text.

But is it legally binding?

Usually, UN Security Council resolutions are legally binding. It depends of the extent to which they are adopted under Chapter VII of the UN Charter. A Chapter VII resolution, according to the UN Charter, is an "action with respect to threats to the peace, breaches of the peace and acts of aggression." To those not fully well versed in legal mumbo jumbo, it means that IF the Resolution is the result of an act of aggression, then it's legally binding. Israel's Six-Day war was not characterized as an act of aggression at the UN, and therefore did not fit into Chapter VII, but under Chapter VI which deals with "Pacific Resolutions of Disputes". Since Israel was not an aggressor in the Six-Day War, according to Resolution 242, Israel was assigned rights and obligations with respect to the territories its forces had captured.

Then why are we even discussing this resolution? Why do we care if it's not legally binding?

We care because, as is the UN's grand scheme for a better and peaceful world, we used that resolution (and resolution 338, which followed the Yom Kippur War) as a basis for the Oslo accords between Israel and the Palestinians. The Oslo accords, signed contractual agreements, encompass these resolutions and as such these resolutions are rendered legally binding.

But that's not all that's legally binding.

Yassir, never having mastered the Windsor tie, decided to ignore the  required dress code.
Israel and the Palestinian Authority signed legal agreements, or contracts, which give both parties not only rights but also obligations.

After many years of failed agreements through third parties, the Oslo Accords, or Interim Agreement, were the first attempt at a direct negotiation between Israel and the PLO. The first part was signed in 1993, you all remember the pictures with Bill Clinton on the lawn of the White House, and the second bit (the actual Interim Agreement) is from 1995 (shortly before the Assassination of Yitzhak Rabin).

Before I get to the point of the rights and obligations of the Palestinians in the Oslo accords, I'd like to touch up on a point which comes up very often in discussions. This illusion that Israel's building of extra housing units or schools in settlements is somehow illegal and contrary to the Oslo accords.

The number of authorized West Bank Israeli communities has remained the same ever since the 1993 Oslo Accords. However, since 1993, the number of structures and people in many of the settlements has grown. It was never the intent for this natural expansion not to be the case. The Oslo Accords between Israel and the Palestinians did not prohibit either group from building communities in the West Bank. Even Rabin said
I am not ready for there to be a law in Israel to forbid building houses in existing settlements, or a kindergarten or a cultural center in a place where people live today
Additionally, when seeking Knesset approval for Oslo II on October 5 1995, Rabin stated before the vote:
I wish to remind you, we made a commitment, meaning we reached an agreement, we made a commitment to the Knesset not to uproot any settlement in the framework of the Interim Agreement, nor to freeze construction and natural growth.
And this coming from one of our most dovish Prime Ministers.

So now that we've cleared up this issue and conceded that Israel has not violated a written agreement, we can move on.

What obligations were the Palestinians legally bound to? I mean besides fighting terror and educating toward peace, which they weren't very successful at? What tangible obligations could there possibly have been for the Palestinian Authority?
The original Oslo agreements, the first one in 1993 the big Oslo Agreement in 1995 known as the Interim Agreement, had a clause in them called Article 31, and it said: “Neither side shall initiate or take any step that will change the status of the West Bank and Gaza Strip pending the outcome of the permanent status negotiations.
If the Palestinians try to change the status of the territory, without negotiating with Israel, that is a unilateral act which violates this commitment.
Now why is this particularly important for Europe? Because when the interim agreement was signed with that critical clause, at the White House in the presence of president Clinton, the European Union signed the Agreement as well as a witness. And therefore if EU countries decide to support the Palestinian move in the UN in contravention of that Palestinian commitment in Oslo, what they’re essentially doing is lending a hand to a violation of a written agreement to which they are also signatories.
So the immediate question in Israel will be “Who would ever rely on the European Union again to be involved in the peace process, if it violates the very agreement that it itself signed?”
All the previous obligations which weren't upheld could be waved off as being out of the PA's control. But this? Going to the UN to change a status in clear contravention of a signed agreement? The PA can't say that this is beyond their control. So they go and break an agreement which has been in place (though fickle) for 18 years.

Maybe it is me, I was always under the impression that when you negotiate you work together to bring about a settlement that is agreeable to both sides. The PA continues to pre-define the outcome of the negotiations -and the world sits back and nods its collectively ignorant head!
A yawn would have almost been nice at this point from the world. We have countries, some from the EU, who are actually convinced it's a good idea and who will vote Yes in New York next week. But should Israel come close to not respecting every understated comma, you can bet there will be world condemnation. (Heck there already is.)

But ask yourselves, why is the PA actually doing this? They'll get a veto at the UN Security Council (if Obama can be held to his word), so all they'll get is a resolution in the UN's General Assembly. But as you'll recall from the previous post, UN General Assembly resolutions are not legally binding!

The only reason they have to do this is the same reason they've always had for doing anything at the UN: Propaganda, avoid responsibility, feeding their addiction to the culture of victimhood, and generally force Israel into a tight spot repeating fallacies.

Positive note to end this gloomy post:
A letter from over a hundred Members of European Parliament (out of 736 MEPs! Not bad ey?) to Catherine Ashton asking for a clear "No" from the EU on this unilateral move at the UN.
Who's representing your country?

I've transcribed the some of the most interesting bits of this video for these posts, but if you want to watch the full 15 minutes of it, here it is:

Shavua Tov!

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