Why Israel Must Now Move from Concessions-Based Diplomacy to Rights-Based Diplomacy. Part III

 

3^rd part of 3

Notes

¹ http://www.haaretz.com/hasen/spages/865408.html.

² This recommendation was made in 2003 by former UN ambassador Dore Gold following international calls for the dissolution of Israel as an independent state and its replacement by a one-state solution for Palestinians and Israelis. See Dore Gold and Jeff Helmreich, "An Answer to the New Anti-Zionists: The Rights of the Jewish People to a Sovereign State in Their Historic Homeland," Jerusalem Viewpoints, Jerusalem Center for Public Affairs (www.jcpa.org), November 16, 2003.

³ Herb Keinon, "PM: Helping the PA is ‘Risky, but Necessary'," Jerusalem Post, online edition, June 23, 2007 (http://www.jpost.com/servlet/Satellite?cid=1182409630511&pagename=JPost%2FJPArticle%2FShowFull).

⁴ Aluf Benn, "Minster Confirms Gov't Sent Message to Syria via ‘Secret Channel,'" Ha'aretz, June 9, 2007. See also Associated Press, "PM Willing to Return Golan for Peace with Syria," Jerusalem Post, June 8, 2007; Aluf Benn, "PM Mulls, via 3rd Party, Resuming Syria Talks," Ha'aretz, May 31, 2007, http://www.haaretz.com/hasen/spages/865421.html.

⁵ Benn, "PM Mulls."

⁶ Israeli withdrawal and subsequent full Palestinian control has transformed Gaza into a center for radical Islamic terror activity against Israel. In 2006 alone, 891 Gaza-based rocket assaults were carried out against Israel compared to a total of 716 for the previous five years. See http://www.terrorism-info.org.il/malam_multimedia/Hebrew/heb_n/pdf/terrorism_2006h.pdf.

⁷ Address by Prime Minister Ariel Sharon at the Fourth Herzliya Conference, Israel, Ministry of Foreign Affairs website, December 18, 2003, http://www.mfa.gov.il/MFA/Government/Speeches+by+Israeli+leaders/2003/Address+by+PM+Ariel+Sharon+at+the+Fourth
+Herzliya.htm.

^8. Lt.-Gen. Moshe Yaalon, "The Second Lebanon War: From Territory to Ideology" in:

Iran, Hizbullah, Hamas and the Global Jihad: A New Conflict Paradigm for the West (Jerusalem: Jerusalem Center for Public Affairs, 2007), p. 15.

⁹ September 29, 2005, marked five years since the outbreak of the violent confrontation. In its course 26,159 terrorist attacks had been perpetrated against Israeli targets, leaving 1,060 Israelis dead and 6,089 wounded, http://www.terrorism-info.org.il/malam_multimedia/html/final/eng/eng_n/pro_13_10_e.htm.

¹⁰ Dore Gold, "Europe's Consistent Anti-Israel Bias at the United Nations," in Manfred Gerstenfeld, ed., Israel and Europe: An Expanding Abyss? (Jerusalem: Jerusalem Center for Public Affairs, 2005), p. 54.

¹¹ See Amnesty International 2007 Report, http://thereport.amnesty.org/document/15.

¹² Ha'aretz News Service, "Israel Condemns U.K. Academic Boycott Bid as ‘Scandalous'," Ha'aretz, May 31, 2007, http://www.haaretz.com/hasen/spages/865462.htm.. This latest British boycott followed the one in early 2007 by Britain's National Union of Journalists and two earlier embargoes that were overturned in 2005 and 2006.

¹³ Cnaan Lipshitz, "South Africa's Largest Trade Union Seeks to Boycott Israel," Ha'aretz, May 31, 2007, http://www.haaretz.com/hasen/spages/865408.html.

¹⁴ Ibid.

¹⁵ "Battle for Britain," Editorial, Ha'aretz, May 27, 2007.

¹⁶ CBS News interview with Harry Smith, November 28, 2006, http://www.cbsnews.com/stories/2006/11/28/earlyshow/leisure/books/main2212124.shtml.

¹⁷ Former legal adviser to the Israeli Foreign Ministry Allan Baker noted that the establishment at Oslo of the official nomenclature "Palestinian Authority" and not "Palestine" was a major point of negotiation before the signing of the Oslo accords with Yasser Arafat and the Palestine Liberation Organization. Baker noted in 2003 that premature references to "Palestine" are a de facto delegitimization of Israel's rights and contravene the carefully crafted language both of the Oslo accords and UN Security Council Resolution 242. Interview with Alan Baker, legal adviser to Israel's Foreign Ministry, January 17, 2003, as cited in Dan Diker, "Does the International Media Overlook Israel's Legal Rights in the Israeli-Palestinian Conflict?" Jerusalem Issue Brief, No. 495, Jerusalem Center for Public Affairs, April 1, 2003, http://www.jcpa.org/jl/vp495.htm.

¹⁸ Robin Shepard, "In Europe an Unhealthy  Fixation on Israel," Washington Post, January 30, 2005, http://www.washingtonpost.com/wp-dyn/articles/A46382-2005Jan29.html.

¹⁹ Tony Judt, "Israel: The Alternative," New York Review of Books, October 23, 2003, http://www.nybooks.com/articles/16671.

²⁰ Allan Cowell, "Mayor Accuses Israel of ‘Ethnic Cleansing,'" New York Times, March 5, 2005, http://www.iht.com/articles/2005/03/04/news/london.php.

²¹ Shepard, "In Europe."

²² Irwin Cotler, "Durban's Troubling Legacy One Year Later: Twisting the Cause of International Human Rights against the Jewish People," Jerusalem Issue Brief, Vol. 2, No. 5, August 20, 2002.

²³ Alvin H. Rosenfeld, "Progressive Jewish Thought and the New Anti-Semitism," American Jewish Committee, December 2006, p. 8, http://www.ajc.org/site/apps/nl/content3.asp?c=ijITI2PHKoG&b=846637&ct=3283863.

²⁴ "Battle for Britain." Despite the fact that Hamas does not recognize pre-1967 Israel and continues to launch rocket terror assaults against southern Israeli cities in pre-1967 Israel from Palestinian-controlled Gaza, one of the initiators of Britain's academic boycott against Israel emphasized that, "Justice in the Palestinian-Israeli conflict is entirely on one side" - meaning, of course, the Palestinian side.

²⁵ Tzipi Livni, "The Peace Alternative," English version of the article by Foreign Minister Livni published in Arabic in Al-Sharq Al-Awsat (London), June 18, 2007. See: http://www.israel.org/MFA/Government/Speeches+by+Israeli+leaders/2007/
The+Peace+Alternative+18-Jun-2006.htm.

²⁶ Ehud Olmert, "1967: Israel Cannot Make Peace Alone," The Guardian, June 6, 2007, http://www.guardian.co.uk/commentisfree/story/0,,2096527,00.html.

²⁷ Ibid.

²⁸ Ismail Haniyeh, "1967: Our Rights Have to Be Recognised," The Guardian, June 6, 2007, http://www.guardian.co.uk/commentisfree/story/0,,2096394,00.html.

²⁹ See Dore Gold, The Fight for Jerusalem: Radical Islam, the West, and the Future of the Holy City (Washington: Regnery Publishing, 2007), pp. 276-277.

³⁰ See the following legal precedents of the International Court of Justice: International status of South-West Africa, Advisory Opinion, I.C.J. Rep. 1950, p. 128; South-West Africa - Voting Procedure, Advisory Opinion of June 7th, 1955: I.C.J. Rep. 1955, p. 67; South West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary Objections, Judgment of 21 December 1962: I.C.J. Rep. 1962, p. 319; Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, I.C.J. Rep. 1971, p. 16.

³¹ Dore Gold, "The U.S. and Defensible Borders" in: Defensible Borders for a Lasting Peace (Jerusalem: Jerusalem Center for Public Affairs, 2005), p.59

³² Israel's legal and historical claims in the former Palestine Mandate include what are today the West Bank and Gaza. The League of Nations Mandate was the last and still-binding legal instrument to assign rights to the residents of the former British Mandate of Palestine. As early as 1922, the Council of the League of Nations noted Israel's right to "reconstitute its national Homeland" in the Land of Israel. In other words, the League of Nations recognized Israel's preexisting rights to settle in what had been Western Mandatory Palestine. See Gold and Helmreich, "An Answer to the New Ant-Zionists."

^33. See, e.g., Report of the United Nations Special Rapporteur on the Situation of Human Rights in the Palestinian Territories Occupied Since 1967, John Dugard, A/HRC/4/17, 29 January 2007 (esp. paragraphs 1, 6 and 22 referring to Gaza as part of the "Occupied Palestinian Territory" and applying the Fourth Geneva Convention regarding "occupied" territory).

³⁴ Herb Keinon and Associated Press, "Solana Says EU Won't Support a  ‘Nightmare' Gaza-Only Pullout," Jerusalem Post, October 24, 2004.

³⁵ Speech by Maj.-Gen. Uzi Dayan at the conference on "40 Years of UNSC Resolution 242," Jerusalem Center for Public Affairs and Konrad Adenauer Foundation, Jerusalem, June 4, 2007.

³⁶ Dan Diker, "Why Are Israel's Public Relations So Poor?" Jerusalem Viewpoints, No. 487, Jerusalem Center for Public Affairs, November 2002, p. 7.

³⁷ See: http://www.mfa.gov.il/MFA/Archive/Peace+Process/1993/Remarks+by+PM+Yitzhak+Rabin+at+Signing+ of+DOP+-+13.htm.

³⁸ Speech of Yitzhak Rabin at the Knesset vote to approve Oslo II, September 28, 1995. Rabin's territorial claims had strong legal and diplomatic grounding. Israel's legal right to secure and recognized boundaries was affirmed in the British and American-drafted UN Security Council Resolution 242, which the Security Council unanimously approved on November 22, 1967, and was subsequently accepted by both sides of the Arab-Israeli conflict as a basis for peaceful resolution. Indeed, UNSC 242 would be the cornerstone of all Arab-Israeli diplomacy since Israel's defensive war of 1967. Its major principles are:

                1. Israel's withdrawal from territories to secure and recognized boundaries, which would be different from the indefensible prewar armistice lines that became known in international diplomatic parlance as the Green Line or, in other words, the ceasefire lines of 1949. Israel's former UN ambassador Dore Gold recently noted that George Brown, the British foreign secretary in 1967, clarified the resolution's phraseology at the time saying, "Israel will not withdraw from all the territories." Dore Gold, "Forgotten Legal Rights," New York Sun, June 8, 2007.

                2. UNSC 242 was predicated on the fact that any Israeli withdrawal would take place only with the institution of full peace and recognition from its Arab neighbors, who were branded as the war's aggressors, before Israel would be required to withdraw from any captured territory. This point was recently emphasized by international human rights attorney Prof. Alan Dershowitz, who was on the U.S. drafting team of UNSC 242 under former U.S. ambassador to the United Nations Arthur Goldberg. See Dershowitz's speech at the conference on "40 Years of UNSC Resolution 242," Jerusalem Center for Public Affairs and Konrad Adenauer Foundation, Jerusalem, June 4, 2007.

                3. The legal context of Rabin's postwar claims for a united Jerusalem under Israeli sovereignty also stemmed from preexisting Israeli claims under the Palestine Mandate, which were unaffected by  Jordan's illegal occupation of Jerusalem and the West Bank in 1948 and its role as an aggressor in 1967. This position was also supported by leading international legal authorities at the time. For example, Stephen Shwebel, former U.S. State Department legal adviser who would become president of the International Court of Justice at The Hague, wrote in 1970, "When the prior holder of territory had seized that territory unlawfully, the state that subsequently takes that territory in the lawful exercise of self-defense, has against that prior holder, better title." Shwebel would add, "Israel has the better title in the territory of what was Palestine, including the whole of Jerusalem, [emphasis added] than do Jordan and Egypt." See Prof. Judge Stephen M. Schwebel, "What Weight to Conquest?" in Justice in International Law (Cambridge: Cambridge University Press, 1994).  

³⁹ Benjamin Netanyahu, A Place among the Nations: Israel and the World (New York: Bantam, 1993), pp. 14-15. 

⁴⁰ Address by Prime Minister David Ben-Gurion to the Israeli Knesset, December 5, 1949, in Meron Medzini, ed., Israel's Foreign Relations: Selected Documents 1947-1974 (Jerusalem: Ministry for Foreign Affairs, 1976), pp. 223-224.

⁴¹ Address by Ambassador Abba Eban to the UN Trusteeship Council, February 20, 1950, in ibid., pp. 227-236.

⁴² Address by Prime Minister Yitzhak Shamir at the Madrid Peace Conference, October 31, 1991. Israel Ministry of Foreign Affairs, http://www.mfa.gov.il/MFA/Foreign%20Relations/Israels%20Foreign%20Relations%20since%201947/
1988-1992/24320Address%20by%20Prime%20Minister%20Shamir%20at%20the%20. Shamir asserted at the opening session:

We are the only people who have lived in the Land of Israel without interruption for nearly 4,000 years; we are the only people, except for a short Crusader kingdom, who have had an independent sovereignty in this land; we are the only people for whom Jerusalem has been a capital; we are the only people whose sacred places are only in the Land of Israel. No nation has expressed its bond with its land with as much intensity and consistency as we have. For millennia our people repeated at every occasion the cry of the psalmist: "If I forget thee, Jerusalem, may my right hand lose its cunning." For millennia we have encouraged each other with the greeting "Next year in Jerusalem." For millennia, our prayers, literature and folklore have expressed powerful longing to return to our land. Only Eretz-Yisrael, the Land of Israel, is our true homeland. Any other country, no matter how hospitable, is still a diaspora, a temporary station on the way home.

Former Israeli Foreign Ministry Director-General Eytan Bentsur, one of the Madrid conference's primary architects, told the author in a conversation on June 9, 2007, that Madrid's conceptual backbone was that both Israel and Arab countries were guaranteed the freedom to advance their respective claims in their opening statements without preconditions. Bentsur also noted that Madrid's approach contrasts with the concessions-based approach taken by Israeli policymakers and diplomats today that the "price of peace talks with Syria or the Palestinians is known from the outset." For example, Deputy Defense Minister Ephraim Sneh said on June 4, 2007, that there is no way to achieve a peace agreement with the Palestinians unless Israel agrees to a near-complete withdrawal to the June 4, 1967, lines and offers the Palestinians additional land swaps to make up for any lands Israel retains east of those lines. See speech by Deputy Defense Minister Ephraim Sneh at the conference on "40 Years of UNSC Resolution 242," Jerusalem Center for Public Affairs and Konrad Adenauer Foundation, Jerusalem, June 4, 2007.

⁴³ Diker, "Why Are Israel's Public Relations So Poor?" p. 7.

⁴⁴ Ibid.

⁴⁵ Kofi Annan, "Last Speech on the Middle East to the Security Council," New York Review of Books, February 15, 2007, http://www.nybooks.com/articles/19877. On other occasions Annan labeled Israel's presence in the West Bank and Gaza an "illegal occupation" of Palestinian lands, http://www.un.org/News/Press/docs/2002/sgsm8160.doc.htm.

⁴⁶ Bernard Lewis, "The Palestinians and the PLO: A Historical Approach," Commentary, January 1975, pp. 32-48. See also Bernard Lewis, Semites and Anti-Semites: An Inquiry into Conflict and Prejudice (New York: Norton, 1999), p. 164.

⁴⁷ Ibid.

⁴⁸ See Dore Gold, Jerusalem in International Diplomacy (Jerusalem: Jerusalem Center for Public Affairs, 2001), p. 23. See also Netanyahu, A Place among the Nations, p. 408.

⁴⁹ Netanyahu, ibid., p. 22.

⁵⁰ Eli Hertz, "Mandate for Palestine": The Legal Aspects of Jewish Rights (New York: Myths and Facts, Inc., 2007), p. 13.

⁵¹.International status of South-West Africa, Advisory Opinion, I.C.J. Rep. 1950, p. 128; South-West Africa Voting Procedure, Advisory Opinion of June 7th, 1955: I.C.J. Rep. 1955, p. 67; South West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary Objections, Judgment of 21 December 1962: I.C.J. Rep. 1962, p. 319; Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, I.C.J. Rep. 1971, p. 16.

 

Dan Diker is Director of the Institute for Contemporary Affairs (ICA) and foreign policy analyst of the Jerusalem Center for Public Affairs. He also serves as guest Middle East affairs analyst for the Israel Broadcasting Authority's English News. The author thanks

Copyright - Original materials copyright (c) by the authors.

 

Prof. Avraham Bell, Faculty of Law, Bar-Ilan University, for his assistance.

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