Sunday, January 3, 2010

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


2nd part of 3


Neglecting to Reassert Israel's Rights in Gaza before Disengagement


That Israel was ill-equipped to defend its own legal rights became abundantly clear during its unilateral withdrawal from the Gaza Strip in 2005. At that time, Israel evacuated both its military and civilian presence from the area without first establishing a moral symmetry of claims opposite the Palestinians. Jewish residents had lived in Gaza for centuries, and their legal right to do so under modern international law had been established for four generations. Israel could have asserted its territorial rights under the League of Nations Mandate, a legally binding treaty that even the International Court of Justice has acknowledged constitutes a legal and continuing sacred trust.30 Moreover, the foundational document of the Arab-Israeli peace process for the past forty years - UN Security Council Resolution 242 of November 1967 - reinforces Israel's right to continue to hold disputed territories pending a satisfactory agreement ensuring Israel's secure borders. Even Egypt, whose nineteen-year military occupation of Gaza came to an end in 1967, agreed to peace with Israel in 1978 without any assertion of Egyptian claims or any limitations on Israel's rights to Gaza. Moreover, the 1993 Oslo accords with the PLO did not prejudice Israel's legal rights to settlement in Gaza, notwithstanding any future political compromise.

True, Sharon did receive a presidential-letter commitment from President George W. Bush on April 14, 2004, affirming Israel's rights to defensible borders in the West Bank as a quid pro quo for leaving Gaza.31 However, even Bush's written commitment to Sharon did not compensate for Israel's failure to emphasize to the international community that Israel was leaving territories over which it had legal claims.32

The resulting European reaction could have been foreseen. Israel's concession of Gaza has been minimized internationally as organizations such as the United Nations and Amnesty International continue to refer to the post-withdrawal Gaza Strip as "occupied territory."33 At the same time, Israel's unilateral pullout has been commonly viewed in international circles as demonstrating the need for yet further Israeli concessions. EU foreign policy chief and then-Spanish Foreign Minister Javier Solana warned in 2004 that the European Union would not support the Gaza disengagement if it did not lead to a full Israeli pullout from the West Bank. Solana called that scenario "nightmarish."34


Europe's expectation of future Israeli withdrawals reflects the degree to which Israel's unconditional unilateral pullout in Gaza would undermine its territorial rights in the West Bank. This was the central reason that Israel's former Deputy Chief of Staff and National Security Council Head Maj.-Gen. Uzi Dayan had publicly opposed full withdrawal from Gaza. He noted on June 4, 2007, that Gaza established an "immoral and dangerous diplomatic precedent for the West Bank."35


Oslo's Shift Away from Rights-Based Diplomacy

Much of Israel's current diplomatic posture was established with the 1993 Oslo accords. The Oslo process represented a diplomatic paradigm shift for Israel away from "rights-based" diplomacy to "concession-driven" diplomacy.36 The White House signing ceremony in September 1993 was illustrative. Prime Minister Yitzhak Rabin deemphasized Israel's territorial rights and instead focused on its desire to end its violent conflict with the Palestinians, declaring, "Enough of blood and tears. We have come to try and put an end to the hostilities, so that our children, our children's children, will no longer experience the painful cost of war, violence and terror."37 His words were poetic and well-meaning, but they lacked any reference to Israel's historical rights and claims.

True, at the 1995 Knesset vote to approve the Oslo II agreement, Rabin did insist on Israel's territorial rights in vital areas for its future survival including the Jordan Valley, other strategic parts of the West Bank, and a united Jerusalem.38 But for most of the period from 1993 to 2000, Israel's overall diplomatic strategy focused on helping the Palestinians achieve their demands for what Arafat and Palestinian spokesmen had always termed their "legitimate rights," hoping this would result in peace and security for Israelis. Though well-intentioned, this approach undercut Israel's longstanding diplomatic policy of asserting both Jewish historical rights to Israel and unconditional demands for security.


David Ben-Gurion, Israel's first prime minister, had as a rule infused major public addresses with historical references. He asserted to the 1937 British Peel Commission, "I say on behalf of the Jews that the Bible is our mandate, the Bible that was written by us, in our language, in Hebrew, in this very country."39 He reminded the Knesset in 1949: "Our ties today with Jerusalem are no less deep than those which existed in the days of Nebuchadnezzar and Titus Flavius...our fighting youth knew how to sacrifice itself for our holy capital no less than did our forefathers in the days of the First and Second Temples."40 A year later Abba Eban would emphasize this theme at the UN Trusteeship Council: "A devotion to the Holy City has been a constant theme of our people for three thousand years."41

At the 1991 Madrid Peace Conference, Prime Minister Yitzhak Shamir told the opening session attended by nearly all the region's Arab leaders, "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."42

But Israeli diplomats at Oslo advanced a different notion: that Israeli territorial concessions to the newly formed Palestinian Authority obviated the need to promote Israel's rights and explain its diplomatic positions.43 Foreign Minister Shimon Peres declared at the time that good policy was good public diplomacy.44 Once Israel dropped its past reliance on rights-based diplomacy and adopted a new concessions-based diplomacy instead, its spokesmen essentially acquiesced to the Palestinian historical narrative. The Israelis offered no alternative perspective. Thus Palestinian officials would repeatedly charge Israel with being a "foreign occupier" and, rather than contest that claim, some Israeli diplomats would counter by saying that Israel wanted to "end the occupation" but lacked a reliable peace partner. Even former UN Secretary-General Kofi Annan echoed the Palestinian charge publicly on a number of occasions including in his last major UN address in February 2007.45



Reasserting Israel's Legitimacy and Rights to Sovereignty

Israel has always expressed its readiness for territorial compromise and this principle will continue to play a role in future diplomatic processes. However, in view of the fundamental doubts expressed regarding Israel's legitimacy in many international circles, Israeli government leaders and diplomats would be well advised to reiterate to their foreign counterparts the following historical and legal principles of Israel's rights-based diplomacy.



Historical Context

The modern State of Israel is not a child of European colonialism. Rather, it is the result of Ottoman decolonialization and one of the first fruits of the international community's commitment to self-determination in the post-World War I era. The State of Israel also is the ancestral homeland of the Jewish nation and the third Jewish commonwealth to arise in the Land of Israel over the past three thousand years. In fact, the Jewish people is the only nation that has ever established an independent homeland in the Land of Israel with Jerusalem as its capital.

Since the destruction of Jerusalem's First Jewish Temple by the Babylonians in 586 BCE and the Second Jewish Temple by the Romans in 70 CE, the Jewish people maintained an unbroken bond with the Land of Israel. A Jewish rebellion in 132 CE became the first to destroy a Roman legion, the high Jewish court (Sanhedrin) remained a preeminent authority in Israel for centuries, and the Jews of the Land of Israel continued to make such important contributions to Jewish life as the composition of the Sabbath-evening prayer services in the sixteenth century. Jewish communities, though limited in size, remained in ancient Israel even after the Roman invaders renamed the land Palestina, as preeminent Middle East scholar Bernard Lewis has noted, so as to obliterate the memory of Jewish nationhood.46 At the same time, according to Lewis, "from the end of the Jewish state in antiquity to the beginning of British rule, the area now designated by the name Palestine was not a country and had no frontiers, only administrative boundaries; it was a group of provincial subdivisions, by no means always the same, within a larger entity."47

Despite Jerusalem's destruction, Jewish religious scholars and political leaders from across the globe still came to Israel and established and maintained vibrant communities in other Jewish holy cities such as Hebron, Tiberias, and Safed.

For the vast majority of exiled Jews over the past two thousand years until the reestablishment of the third Jewish nation-state in 1948, the Jewish yearning and historical commitment to return to its ancient homeland and capital in Jerusalem played a central role in Jewish life throughout the world. It was expressed in thrice-daily Jewish prayer and blessings, and at Jewish holidays - particularly the end of the Passover Seder and the Yom Kippur service. The centrality of Zion and Jerusalem has also played a key role in Jewish lifecycle events such as weddings and funerals.



The Modern Legal Context of Israel's Rights to Sovereignty


It was the sui generis Jewish historical bond with Jerusalem and Israel that led the League of Nations and then the United Nations during the last century to recognize the Jewish people's legal right to "reconstitute its national home in that country."48 In other words, the international community formally recognized a preexisting right to Jewish sovereignty in Western-mandated Palestine from the Jordan River to the Mediterranean Sea. It was Winston Churchill who noted in 1922 that "the Jews are in Palestine by right, not sufferance."49 The High Commissioner for Palestine reiterated in his first report to the British government in 1925 the basis of international guarantees for a Jewish state. He noted:

The Balfour Declaration was endorsed at the time by several of the Allied Governments. It was reaffirmed by the conference of the Principal Allied powers at San Remo in 1920. It was subsequently endorsed by unanimous resolutions by both houses of the Congress of the United States; it was embodied in the Mandate for Palestine approved by the League of Nations in 1922; it was declared in a formal statement of policy issued by the Colonial Secretary in the same year, "not to be susceptible of change"; and it has been the guiding principle in their direction of the affairs of Palestine of four successive British Governments. The policy was fixed and internationally guaranteed.50

Although the League of Nations was terminated in the wake of World War II in 1946, the mandate was not, and could not legally be abridged. Article 80 of the UN founding charter acknowledged the continuing legal rights of mandate beneficiaries. Moreover, the International Court of Justice ruled in a series of cases concerning South Africa's mandate over South West Africa (now Namibia) that articles of mandate are binding legal treaties that continue to grant rights to their beneficiaries.51 Although Israel's neighbors continue to dispute the proper location of its borders, the Jewish state's fundamental legal rights to a sovereign independent Jewish state in former Western- mandated Palestine cannot be and have never been abrogated or revised by any overriding source of legal authority.

Nothing prevents Israel from conceding its potential claims to sovereignty within the context of a peace process that brings Israel to agreed-upon secure borders. Preemptive concession of such claims, however, is unnecessary and has proved diplomatically counterproductive.

The adoption of a rights-based paradigm for Israeli diplomacy will not likely trigger an immediate improvement in the UN General Assembly's voting patterns regarding Israel. It also is unlikely that diplomats from Muslim countries will be persuaded by Israel's rightful claims. However, the international community's position toward Israel is in greater flux in the wake of the Hamas takeover of Gaza in June 2007. Israel might now begin to enjoy greater understanding in some European and Asian circles. Therefore, rights-based diplomacy can make a difference for those who might express greater sympathy for Israel's position but would first seek a firm basis in international law before offering diplomatic support.

Israel, therefore, by refusing to stand up for its rights and instead relying on the power of concessions to gain international support, undermines its own interests. That is why the failed paradigm of concessions-based diplomacy must now be replaced.


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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