Op-Ed: Unilateral PA State? End of 242
Ted BelmanThe author is a retired attorney and the editor of Israpundit. In 2009 he made aliya and is now living in Jerusalem.
The PA has been hard at work of late lining up votes in the UNGA for the recognition of the state of Palestine with pre ’67 borders with the eastern part of Jerusalem as its capital.
They intend to use the “Uniting for Peace” procedure to avoid a possible UNSC veto regardless of whether the procedure is legal. (See; The UN Charter Cannot Support GA Resolution 377). Were they to get such recognition the repercussions would be significant.
Alan Baker, who was legal counsel for Israel in the drafting of the Oslo Accords and is currently associated with the Jerusalem Center of Public Affairs, recently wrote:
“Such unilateral action outside the negotiation process would constitute a fundamental breach of the 1995 Israeli-Palestinian Interim Agreement, thereby releasing Israel from its reciprocal commitments.”
“While such a resolution would not have the authority to alter the legal status of the territories, the negative consequences of such a course of action would nevertheless serve to void the very basis of the peace process. It would undermine the legal existence of the Palestinian Authority and violate commitments by Yasser Arafat to settle all issues by negotiation.
This would go so far as to release Israel from the confines of UNSC Res 242. How so?
According to the Palestine Mandate passed in 1922, Great Britain, the Mandatory power, had the following obligation with respect to all of that part of Palestine lying west of the Jordan River.:
“The Administration of Palestine, while ensuring that the rights and position of other sections of the population are not prejudiced, shall facilitate Jewish immigration under suitable conditions and shall encourage, in co-operation with the Jewish agency. referred to in Article 4, close settlement by Jews, on the land, including State lands and waste lands not required for public purposes.”
The Plan of Partition (Res 181) passed by the UNGA in 1947, though it violated this provision, was accepted by the Jews and paved the way for the recognition of the state of Israel six months later. Had the Arabs accepted this resolution, they too would have had a state and that would have been the end to Jewish rights of close settlement in Judea and Samaria (West Bank). But they didn’t and so Jewish rights to same didn’t end.
So why isn’t The Government of Israel asserting those rights now?
The answer finds its origin in UNSC Res 242 passed in 1967 which authorized Israel to remain in occupation until she had secure and recognized borders. Israel’s acceptance of this resolution effectively waived Jewish Mandate rights in exchange for such borders. Israel obviously preferred such borders over exercising her rights of “close settlement” which would have necessitated managing the Arab population in these lands. Once again the Arabs rejected this resolution preferring instead “no negotiation, no recognition and no peace” as resolved in their Khartoum Conference in Sept 1967.
Notwithstanding this, Egypt broke ranks and made peace with Israel in 1979 as did Jordan in 1994.
In 1993 Rabin and Arafat signed the Declaration of Principles on the White House lawn, which aimed to
“establish a Palestinian Interim Self-Government Authority, the elected Council (the “Council”), for the Palestinian people in the West Bank and the Gaza Strip, for a transitional period not exceeding five years, leading to a permanent settlement based on Security Council Resolutions 242 and 338.”
As a pre-condition to this mutual declaration, Arafat delivered two letters to Rabin promising to amend the Charter of the PLO which called for the destruction of Israel and Rabin delivered a letter to Arafat confirming his intention to allow normalization of life in the territories. Arafat and the PLO never did amend their Charter. For that matter, Fatah and Hamas have similar provisions in their Charters even to this day.
This Declaration made no mention of a Palestinian state as the goal, nor did it call for a cessation of Israeli settlement activity.
In 1995, Israel and the Palestine Authority (PA) entered into an Interim Agreement which provided, inter alia, for the creation of the PA and for its exercise of power. It obligated both parties “to carry out confidence building measures as detailed herewith”. Those details involved Israel releasing prisoners in stages. No other confidence building measures were required. That never stopped the US from continually demanding that Israel offer more “confidence building measures”.
Article XXXI provided;
“Neither side shall initiate or take any step that will change the status of the West Bank and the Gaza Strip pending the outcome of the permanent status negotiations.”
“Nothing in this Agreement shall prejudice or preempt the outcome of the negotiations on the permanent status to be conducted pursuant to the DOP. Neither Party shall be deemed, by virtue of having entered into this Agreement, to have renounced or waived any of its existing rights, claims or positions.
Both of these agreements became know as the Oslo Accords.
As Baker points out, such a move by the PA would clearly be a fundamental breach of this provision. To my mind there have been numerous fundamental breaches by the PA which include their daily incitement, their Intifadas and their massive rocket attacks from Gaza. In these instances over the years, Israel chose not to declare the Oslo Accords null and void. But not this time. For example, Israel has mooted the idea of annexing part, if not all, of Judea and Samaria (West Bank), were it to happen.
It may be argued that if the Agreement is abrogated, that Israel’s Mandate rights still apply.
By demanding the armistice lines as borders subject to mutual exchanges, the PA is rejecting Res 242 which provides for “secure borders” otherwise described elsewhere, as “defensible borders”. Likewise the Arab League has similarly rejected Res 242 in putting forth their initiative which was based on the armistice lines rather than “secure borders. By demanding 100% of Judea and Samaria, they are demanding that Israel retreat from all of the territories which is also contrary to the intent and meaning of the resolution.
Thus it would appear that not only will the Oslo Accords be no longer binding on Israel, neither will Res 242 because the Arabs have never accepted it.
The Obama Administration understands the risks of the UN granting recognition to the state of Palestine. Dennis Ross, speaking to the ADL recently on behalf of the US said,
“We have consistently made it clear that the way to produce a Palestinian state is through negotiations, not through unilateral declarations, not through going to the UN. Our position on that has been consistent in opposition.”
The Obama Administration would rather keep Israel shackled to the Oslo Accords while pressuring Israel to capitulate. In reality, the US has abandoned Res 242 and the Oslo Accords, de facto, by pressing Israel to accept security guarantees in place of secure borders and by pushing the Arab League Initiative. It is also pushing for the division of Jerusalem which is not required by the Oslo Accords.
It remains to be seen if the EU will follow the US lead on keeping Israel shackled. Angela Merkel during her recent meeting with PM Netanyahu said, “We are in favor of two states for two nations. It is not certain that unilateral recognition will contribute to promoting peace, and this will be our position in September.”
Regardless, the PA seems bent on following through with bid for UN membership. Some people think the recognition of the state of Palestine would be a disaster for Israel while others think not.
But at least, Israel will be free to act.
Israel will have no legal obligation to refrain from annexing Judea and Samaria in whole or in part. Her right to settle all of this land and to establish a national home on all of it for the Jews, which has been recognized by international law, will be legally unassailable.
Furthermore as conquerors of this land, pursuant to a defensive war, international law entitles her to keep it. When Israel conquered the land, no one had sovereignty over it including Jordan and the Arabs living there. In effect this war was a continuation of the ‘48 war. Thus it put an end to the Armistice Agreement and the armistice lines which the parties had agreed would not be the final borders in any event.
I had a conversation with Baker because I wanted him to reconcile the provision in the Interim Agreement calling for a settlement based on Res 242 and Article XXXI which provides “Neither Party shall be deemed, by virtue of having entered into this Agreement, to have renounced or waived any of its existing rights, claims or positions.” In my reading of these two clauses, I thought that the second was limited by the first.
He advised to the contrary, noting that Israel could assert any right she might have. I asked if that included our right to settle the land pursuant to the Mandate. He advised that the Mandate rights ended in the creation of Israel in 1948. I begged to differ, arguing that that would have been the case had the Arabs accepted a state on the rest at that time. But what do I know. He has been involved in this process for close to 20 years.
He did say that even if a state is declared, the PA will still have to negotiate borders and everything else so he isn’t fearful of such recognition. But the chances of reaching agreement after 25 years, are slim. A recent poll reported that 78% of Likudniks oppose the creation of a Palestinian state.
In the meantime, Israel should build as much as she wants and should extend Israeli law to all communities in Judea and Samaria in which her citizens live. Aside from providing housing for its citizens, it would put pressure on the Palestinians to compromise. If Israel were to continue with the de facto freeze, the Palestinians would have no incentive to make peace and could wait a hundred years while they build throughout Judea and Samaria and continue their campaign to demonize and deligitimate Israel.
Accordingly, Israel should welcome the recognition of a Palestinian state and the abrogation of the Oslo Accords.