Jumping on the Lawfare Bandwagon

Following Israel’s announcement to consider denying entry to groups advocating boycotting Israel, the BDS South Africa representative was invited to discuss this ban on a South African radio station. Subsequently, this same radio station invited a representative from the South African Zionist Federation to present its perspective. Hardly balanced, the interviewer dug in on the December 2016 UN Security Council Resolution 2334 as proof that Israel is “a violator of International laws”, and should be made accountable for the “flagrant” flouting of the law. The interviewer supported the BDS position on Israel that BDS was entitled to advocate boycotting Israel, but should be protected from being boycotted itself!

The international media, including South Africa are fed a steady diet of pro-Palestinian narratives, and for a myriad of reasons, choose to view this conflict through an anti-Israel BDS lens.

Contrary to the principles of their profession, notably truth and accuracy, independence, impartiality and fairness, today’s coverage and commentary on Israel displays ignorance, intellectual lethargy and transparent anti-Semitism. Generally, journalists in the South African media,bar some exceptional individuals subscribe and identify with the following:
– Israel is guilty, the Palestinians are the “underdog” and the poor hapless victims of this conflict.
– Disingenuously applying the rally cry of the Apartheid appellation to Israel therefore categorising Israelis as ‘racist’. They try not to bring in the “Jewish bit” as some of their “best friends are Jewish”
– international law is law even if it is clearly manipulated lawfare

‘Lawfare’ can be defined using ‘law’ as a tool of warfare to defame and delegitimise Israel, is now one the preferred weapons as revealed in the recent infamous UNSC Resolution 2334 which termed not only the settlements of Judea and Samaria (West Bank) to be “illegally occupied” by Israel, but also Temple Mount, the Western Wall, the ancient Mount of Olives Jewish Cemetery, and the Church of the Holy Sepulchre. In other words, this disastrous and nefarious Resolution 2334 has become part of the bevy of “international laws” that accuse Israel of an innumerable amount of violations.

It must be remembered that most of these UN General Assembly Resolutions despite providing PR to the Palestinian assault on Israel, are simply recommendations.

Crossing all Red Lines

However, Resolution 2334 is different and crosses all red lines; while assuming the status of law, this nefarious UN Security Council resolution, is as an international ambush of Israel. Deviating from presidential precedent, President Obama chose not to exercise the veto, opting to vent a personal animus against Israel before exiting the Oval Office.

Obama chose to invalidate what every other US president had constantly held, that Israel should not be forced back within its pre-1967 armistice lines.
What is disturbing is that the compilers of this biased, lawless, historically inaccurate, unethical and unjust Resolution 2334 should even be accorded a modicum of international legitimacy.

From a UN perspective, it also provides no impetus whatsoever to the cause of peace!

In fact, it emboldens the Palestinians by absolving them from negotiating with Israel, and it simply places the blame for the impasse at Israel’s door. Resolution 2334 also disregards the reality on the ground whereby the Arabs have for years refused to negotiate, have instead used terror, disinformation, and lobbying for disingenuous resolutions using a fabricated account of history to bolster the Palestinian narrative, to ultimately strongarm Israel.

From a US perspective, the resolution proved undemocratic. Such a major deviation from the will of people, previous US administrations after having invested so much in the pursuit of peace would have looked to their constituents to assess what the American people would have really have wanted. Not President Obama.

Disingenuous Resolutions

UNSC Resolution 2334 also incorporates UNSC Resolution 242 inaccurately in its preamble; the well-known UNSC 242 scrupulously worded document called for the “withdrawal of Israel armed forces from territories occupied in the recent conflict”. For years however, this was understood only within the context of a peace agreement that would guarantee sovereignty and territorial integrity of every state in the area, including Israel.

When 242 was formulated, Israel did not have clearly defined borders and these boundaries so to speak remain armistice lines until today.

On December 9, 1969, U.S. Secretary of State William Rogers stated that the UNSC Resolution 242 neither endorses nor precludes the armistice lines as the definitive political boundaries. This being the case, UNSC 2334 disingenuously misuses the premise of UNSC 242 in intent and meaning, therefore making Resolution 2334 seriously suspect under International law precepts.

The following aspects challenge the legality of Resolution 2334:

The principle of ‘Estoppel’. In international law a party that participates in a legal proceeding cannot then opt to take an opposite position at a later time.
Regarding resolution 2334, there were three countries present at this UNSC vote and who were also involved in creating the Mandate for Palestine in 1922, namely Great Britain, France and the US. Great Britain and France had also participated at the San Remo Conference, Italy in 1920, under the auspices of the League of Nations. These countries then assisted with the allocation of former Ottoman Empire land, and Palestine was amongst these areas, into Mandated territories.

Palestine was meant for only Jewish settlement while Arab nationalism was accounted for with Iraq, Syria and Lebanon. Later 70% of original Palestine was ceded to the Arabs as well, to create Transjordan, later known as Jordan.

By being party to the Mandate for Palestine of 1922, Great Britain and France should have been estopped from allowing Resolution 2334 to be passed. The United States also should have been estopped for having passed into local law, the 1924 Anglo-American Treaty. The American Administration signed a treaty on December 3, 1924 (ratified by the Senate February 20, 1925; proclaimed December 5, 1925) thereby making the obligations of the Mandate for Palestine Treaty legally binding for both Great Britain and the United States. Although the 1924 Anglo-American Convention expired when the Mandate for Palestine was terminated in 1948, “the principle of Acquired Legal Rights” as defined in the 1969 Vienna Convention on the Law of Treaties, Article 70(1)(b), dictates that rights recognized and protected under a treaty do not expire or terminate when the legal instrument recognizing the rights is terminated. In other words, rights continue without end.”

The next principle violates the UN Charter’s Article 80 which preserves the rights of all people given them by previous legal instruments; The Mandate for Palestine and The Anglo-American Treaty (as referred to above) and this includes illegal intent to create a Palestinian state on Jewish land:

“Palestine been converted into a trust territory, those Jewish rights that had existed under the Mandate remained in full force and effect, to which the UN is still committed by Article 80 to uphold, or is prohibited from altering. As a direct result of Article 80, the UN cannot transfer these rights over any part of Palestine, vested as they are in the Jewish People, to any non-Jewish entity, such as the “Palestinian Authority.” Among the most important of these Jewish rights are those contained in Article 6 of the Mandate which recognized the right of Jews to immigrate freely to the Land of Israel and to establish settlements thereon, rights which are fully protected by Article 80 of the UN Charter” (Grief, 2011, in press, Algemeiner).

The next principle is uti possidetis juris in Latin meaning “as you possess under law”. It is a principle of international law which provides that newly formed sovereign states should have the same borders that their preceding dependent area had before their independence. The doctrine provides that emerging states presumptively inherit their pre-independence administrative boundaries. Applied to the case of Israel, uti possidetis juris would dictate that Israel inherit the boundaries of the Mandate of Palestine as they existed in May 1948.

The doctrine would thus support Israeli claims to any or all the currently hotly disputed areas of Jerusalem (including East Jerusalem), the West Bank, and even potentially the Gaza Strip. The doctrine would not encompass the Golan Heights although Syria had been constantly using this high ground to shell Jewish towns and villages below. The Syrian threat was neutralised with the capture of the Golan Heights in a defensive war in 1967, thus ensuring the safety of Israel’s northern population.

While it is considered illegal to acquire territory by force, international law provides exceptions, notably when such territory is obtained in self-defence (Rosenfeld, 2017). Rosenfeld (2017) goes on to assert that by capturing East Jerusalem, Judea and Samaria (West Bank) in the 1967 Six Day War, Israel was in fact liberating territory that rightfully belonged to it from Jordan’s illegal occupation and annexation.

Trashcan of History

In his rebuke of the General Assembly for their shameful resolutions against Israel, its UN Ambassador, Danny Danon, reminded the country’s representatives of its 1975 shameful United Nations General Assembly Resolution 3379 equating Zionism with racism. So transparently anti-Semitic, that resolution was repealed in 1991, and so provides a precedent for Resolution 2334, to follow suit into the “trashcan of history”. To advance the cause of peace, there needs to be understanding and historical fabrications embodied in UN resolutions are hardly the way forward. To this end, rather than espouse political agendas journalists need to research and report accurately on the Israeli-Palestinian conflict and not serve as agents of BDS, and be the “lawfare” purveyors of misinformation and disinformation.

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Bell, A. and Kontorovich, E. 2016 Palestine, Uti Possedetis Juris and the Borders of Israel. Arizona Law Review. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2745094
Grief, H. (2004). Legal Rights and Title of Sovereignty of the Jewish People to the Land of Israel and Palestine under International Law. http://www.acpr.org.il/english-nativ/02-issue/grief-2.htm

Grief (2011, in press) https://www.algemeiner.com/2011/09/22/article-80-and-the-un-recognition-of-a-“palestinian-state”/).

Norwitz, T.S. (2017). Why President Obama should have vetoed Resolution 2334. UN Watch.https://www.unwatch.org/president-obama-vetoed-resolution-2334-trevor-norwitz/

Rosenfeld, M.S. (2017). Why UN Security Council Resolution 2334 Is Illegal
https://www.canadiansforbalfour100.org/why-un-resolution-2334-is-illegal

Stone, J. (2003). Lacey, I (Ed). International Law and the Arab-Israeli Conflict. http://www.strateias.org/international_law.pdf

Introduction to the 1924 Anglo American Convention on the Mandate for Palestine
http://www.israellegalfoundation.com/anglo-american.html.

UN declares US Jerusalem decision ‘null, void’ (21 December 2017). https://www.ynetnews.com/articles/0,7340,L-5060274,00.html