Stephen I. Siller

Behind the Gaza Dock Curtain

In his State of the Union speech, President 46 said the US will build a pier off the Gaza coast. “A temporary pier would enable a massive increase in the amount of humanitarian assistance getting into Gaza every day.” Biden provided no details of how far offshore this pier would be, how aid would get from that pier to Gaza, and how trucks would get back to the pier.

“International law” is clear. The UN Convention on the Law of the Sea, provides that a sovereign’s territorial rights extend out 12 miles from the sovereign’s coastline, and the sovereign’s exclusive economic rights extend out 200 miles. Israel is not a signatory. The “State of Palestine” is a signatory as a “non-member UN observer state.”

Retired General Dr. Yossi Ben Ari’s TOI scenario for a Biden-imposed unilateral “two-state solution” before the US election is entirely plausible. Biden would have no qualms about interfering in Israeli politics or seeking to exclude Israel from the large natural gas field within that 200-mile economic zone. Biden’s pier plan sounds like a predicate to a “two-state solution” he could impose in a “come to Jesus” meeting with Bibi. Declaring “Palestine” the sovereign in Gaza could permit the US to construct that pier or build a pier anywhere on the Gaza coastline over Israel’s objections.

Israel will reject that unilateral declaration. Will Biden put US troops on the ground in Gaza to implement this unilateral aid delivery mechanism when Israel controls Gaza militarily? Will Biden create a military confrontation with Israel in an election-year gimmick designed to appeal to US Arab voters and to make Biden a Nobel Prize-winning “statesman” at Israel’s expense? What happens to that unilateral declaration if President Trump defeats Biden in November?

Before Biden pulls any kind of supposedly “legal” stunt, Israel might pre-emptively declare that Gaza and Judea and Samaria are now part of Israel. Doing that would follow both the 1978-1979 Israel-Egypt Framework for Peace (“Framework”) and the original references to the Palestine Mandate in the Covenant of the League of Nations.

The Framework annexed the 1967 UN Resolution 242 which provides: “Termination of all claims or states of belligerency and respect for and acknowledgement 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.” The only “States” in 1967 were Egypt, Jordan and Israel.

Article 22 of the Covenant of the League of Nations (“Article 22”) provided (emphasis added):

“To those colonies and territories which as a consequence of the late war [WW1] have ceased to be under the sovereignty of the States which formerly governed them, and which are inhabited by peoples not yet able to stand by themselves under the strenuous conditions of the modern world, there should be applied the principle that the well-being and development of such peoples form a sacred trust of civilization, and that securities for the performance of this trust should be embodied in this Covenant.”

“Certain communities formerly belonging to the Turkish Empire [which included the territory of the Palestine Mandate] have reached a state of development where their existence as independent nations can be provisionally recognized subject to the rendering of administrative advice and assistance by a Mandatory until such time as they are able to stand alone. The wishes of these communities must be a principal consideration in the selection of the Mandatory.”

The British ended the Mandate on May 15, 1948, and were to withdraw British forces by August 1, 1948.” Neither the US nor Britain has any legal authority to declare a Palestinian State to exist in any territory they do not control or own. The Palestinian Arabs and all Arab countries surrounding what was to become the State of Israel rejected the first, UN “two-state solution” when they began their 1948 Jihad. What was to have become Arab Palestine was taken over by Egypt, Jordan and Syria. Regarding Gaza, Framework clause (A)(4) said: “Egypt and Israel will work with each other and with other interested parties to establish agreed procedures for a prompt, just and permanent implementation of the resolution of the refugee problem.”

Israel performed its obligations under the Framework by returning the Sinai to Egypt, and by withdrawing from Gaza in 2005. Following the 1967 and 1973 wars, Egypt wanted no part of the Palestinian Arabs in Gaza. The Arab states and UN continued the Framework’s “refugee problem” by perpetuating the Palestinian Arabs as “refugees.”

Hamas proved that Gaza was nothing more than a terrorist territory from which the Palestinian Arab rejection and destruction of Israel continued despite their 1948, 1967 and 1973 failures. Hamas proved on October 7, 2023, if not before, that the Gaza Arabs are “not yet able to stand by themselves under the strenuous conditions of the modern world,” as provided in Article 22.

Today, only Israel, and no Palestinian Arab State, can “stand alone” under Article 22. Biden’s unilateral say-so cannot make Gaza or even Judea and Samaria into a State, especially when both are controlled militarily by Israel. Biden must create a legal fiction to deem Palestinian Arabs no longer “refugees,” and citizens of a Palestinian state.

Israel must beat Biden to that travesty by deciding on the legal status of the Gaza, Judea and Samaria territories Israel controls. Ambassador David Friedman suggests that if Israel annexes those territories, “[t]he Palestinians would have permanent resident status and Israeli documents. The only restriction would be that while they could vote in local elections, they could not vote in national elections, because that would give them a way to change Israel from being a Jewish state.” In essence, Palestinian Arabs who are security-cleared could receive the Israeli equivalent of US “green cards.”

Israel must not be distracted from eliminating every last Hamas terrorist and rescuing hostages, including continuing the war into Rafah. Israel must, however, figure out what is behind the Biden Gaza pier declaration, and how Israel will respond. Because of Biden’s fast timetable, Israel cannot wait until US Election Day, November 5, 2024, to figure this out.

About the Author
Stephen I. Siller is a Manhattan-based international lawyer, instrument-rated pilot, open-water scuba diver, and accomplished glassblower. His views are personal and not those of any firm or other organization with which he is affiliated.
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