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Kerry and Obama can change policy, not history or law


Last Friday’s vote at the Security Council condemning Israeli “occupation” was not the first time someone demanded that the Jewish State return land it had rightfully regained from an aggressor.

As two major religions celebrate bringing light into the world, a quote from the Christian book describing the end of the Hannukah story seems quite illuminating.

{mosads}When Antioch VII demanded the return of land the Maccabees had won back in defensive conquest, Simon, the last remaining brother of Judah Maccabee, responded with the following statement (Maccabees 1, Chapter 15):  “We have not taken strange lands, nor are we ruling over foreign territory. We have returned to our ancestral inheritance, from which we had been unjustly expelled….”

As King Solomon, the Jewish king who ruled this same territory roughly 700 years before the Hannukah story (he built the Temple that UNESCO recently voted to  exclude from history) famously said, there is nothing new under the sun.

While the new resolution is only a non-binding recommendation, it is still not entirely harmless and can affect international perceptions. So let’s set the record straight.

Jerusalem (and the rest of the West Bank) was part of the territory earmarked for a Jewish homeland in 1920 at the San Remo Conference that drafted the League of Nations Charter. Two years later, the League of Nations Mandate explicitly stated that the Mandatory Power was responsible for putting into effect the Balfour Declaration in favor of a Jewish national home in Palestine, and that Jews have the right to settle anywhere therein. That same year a joint resolution of Congress, H.J. Res. 360, unanimously endorsed the legality of the mandate and confirmed the irrevocable right of Jews to settle anywhere between the Jordan River and the Mediterranean Sea.) In 1947 Israel agreed to the UN Partition Plan, but the Arab world did not.

Israel was attacked in 1948 and Jordan and Egypt illegally occupied parts of Mandatory Palestine. In 1967, Israel recaptured those territories in a clearly defensive war thereby regaining sovereignty over land it had rights to. Regarding settlements, Article 49 of the Fourth Geneva Convention forbids a state from deporting or transferring “parts of its own civilian population into the territory it occupies.”  At worst, the territories in question are disputed, and territory cannot be considered occupied if there was no clear sovereign beforehand. (Neither Jordan, nor Egypt, nor Palestine was ever in legal possession of the land.)  And even ignoring ownership, Article 49 is still factually irrelevant here since Israel has never forcibly deported or transferred its citizens to the territory. The Convention does not forbid private citizens from settling where they choose.

Amplifying the occupation lie is pernicious, because false narratives can feed into dangerous movements. For example, the new resolution explicitly calls upon all States to distinguish, “in their relevant dealings, between the territory of the State of Israel and the territories occupied since 1967,” i.e. to support the Boycott, Divestment, and Sanctions movement (BDS), a coordinated, effort to disrupt the economic and financial stability of Israel.

One of BDS’ stated goals is to bring about ‘the end of the Israeli occupation,’ but BDS leaders have openly said that their real aim is “the end of the Jewish state.” In practice, BDS has been a significant factor in the recent increase of anti-Semitic incidents both globally and domestically, and has been linked to radical terror groups. Also, as research has made clear, BDS actually hurts the many Palestinian people who rely on Israeli jobs.

This past summer, the Republican Platform explicitly rejected  “the false notion that Israel is an occupier,” and recognized that BDS “is anti-Semitic in nature and seeks to destroy Israel.” The DNC Platform also opposed “any effort to delegitimize Israel, including at the United Nations or through the Boycott, Divestment, and Sanctions Movement,” and noted that “we will continue to work toward a two-state solution of the Israeli-Palestinian conflict negotiated directly by the parties.” (Emphasis added).

After the leadership of both parties tried in vain to convince Obama not to abandon his own policies, along with both Israeli and American interests, President-Elect Trump tweeted that soon “things would be different.” Already things are starting to look up: Nikki Halley, Trump’s pick for UN Ambassador, was actually the first governor to sign an anti-BDS bill into law.

The bi-partisan condemnation of Obama’s abstention has ironically only confirmed that America really does stand with Israel. As to the biased UN, Sen. Lindsey Graham is already working to form a bipartisan coalition to suspend or reduce US assistance until the unequal treatment of Israel stops.

Kerry’s speech defending the abstention, explaining why the administration changed its longstanding view on vetoing these resolutions, which are counterproductive to peace, was deafeningly silent both on the law and on the history of the negotiations. He mentioned that the UN had created the space for a two state solution back in 1947 but not that the Arab world rejected that proposal. He praised Clinton for laying out extensive parameters in 2000, but forgot to say that then-Israeli Prime Minister Ehud Barak had accepted the plan, while Yasser Arafat refused to. He omitted that in 2008 Ehud Olmert presented Abbas with a comprehensive peace plan that Abbas did not agree to, and did not touch at all on the history of his own failed 2014 effort, in which Netanyahu gave in to the Clinton parameters but Abbas walked away.

The Israeli peace offers would have annexed only the major Israeli settlements, given full land swap equivalents to the Palestinians, divided Jerusalem, and created a contiguous Palestinian state on 97 percent of the West Bank, while paying 30 billion in reparations. This is the exact plan that Kerry said he was calling for; the plan Israel has agreed to multiple times; and the plan this administration now absurdly claims Israel put into such jeopardy they had no choice but to be quiet in the face of her accusers.

At a time when Obama should have been pushing Palestinian leadership to be reasonable for the sake of their people, he chose instead to play dumb, and in the immortal words of Martin Luther King, Jr., “In the end, we will remember not the words of our enemies, but the silence of our friends.”

Goldfeder is an Emory Law School professor and practices in the international law arena.

The views expressed by authors are their own and not the views of The Hill.

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