What Kerry Should Have Said

On December 28, 2016, U.S. Secretary of State John Kerry gave an hour long address, explaining that the U.S. abstention from UN Security Council Resolution 2334 on Israeli settlements was motivated by a desire to preserve the opportunity for a two-state solution to resolve the Israel-Palestinian conflict. Unfortunately, the U.S. refusal to veto and Mr. Kerry’s speech will have the opposite effect. If Mr. Obama and Mr. Kerry desired to actually have a positive impact on the possibility of preserving a two-state solution, the U.S. should have vetoed the Resolution, and here is what Mr. Kerry should have said:

Good afternoon, and Happy Holidays to all. Today I want to explain why, despite the erroneous viewpoint of much of the world, the United States believed that in good conscience the only action it could take was to veto the unfair and one-sided UN Security Council Resolution 2334. Adding language calling for steps to prevent acts of terror and incitement are not, in our view, sufficient to render this Resolution sufficiently “balanced” so as to avoid a veto.

In line with generations of U.S. policy, we cannot and will not allow any Resolution to pass that describes Israel’s position in the West Bank using language such as “no legal validity,” “violation of international law,” “Palestinian territory,” “occupied territory,” or refers to Israel as an “occupying power” – not in the West Bank, and certainly not in Jerusalem.

That is because, regardless of one’s view of the settlement enterprise and the current right-leaning government in Israel, there are certain immutable and irrefutable facts from history. And these facts establish beyond any reasonable debate that Israeli settlements, while perhaps unhelpful and unwise, are not and have never been “illegal.” No two-state solution can ever be negotiated or succeed without acknowledgment of these facts. That so much of the world, many UN committees, and the Palestinian Authority repeatedly deny these facts is the primary obstacle to reaching any just and lasting peace agreement – indeed, they prevent the possibility of even having a reasoned discussion. And so, I address you today in the hopes of setting the record straight, in order to preserve the fading prospect of a two-state solution that the general publics of both Israel and the Palestinian Authority desire.

These are the facts:

Chapter 80, Section 1 of the UN Charter, adopted in 1945, states that nothing in the Charter “shall be construed in or of itself to alter in any way… the terms of existing international instruments…”

At that time, there were existing international instruments in place regarding Israel and Palestine. The UN, therefore, re-affirmed these existing agreements. Those agreements reflect international law. What were those agreements?

On July 24, 1922, the UN’s predecessor, the League of Nations, issued the Mandate for Palestine. The preamble, contrary to the recent UNESCO resolution that the U.S. opposed, expressly gives recognition “to the historical connection of the Jewish people with Palestine and to the grounds for reconstituting their national home in that country.” Article 6 called for the Administration of Palestine (Britain) to “facilitate Jewish immigration under suitable conditions and shall encourage . . . close settlement by Jews on the land . . .”

The British Mandate as of that date included all of what is now Israel, the West Bank, and Jordan. Under the as-passed Mandate, all of that land was called upon to be the “national home for the Jewish people.”

The Mandate, however, included Article 25. Article 25 gave Britain the option to withhold application of some provisions of the mandate – including close settlement of the land by Jews – from “the territories lying between the Jordan and the eastern boundary of Palestine.” This is important; the option applied only east of the Jordan River, not west. The entire area under discussion – the West Bank – was not subject to this proviso.

In September 1922, Britain formerly exercised its option under Article 25, and separated the area east of the Jordan River from the rest of the Mandate, creating what was then called Transjordan, and what is now the nation of Jordan. Importantly, all of the land west of the Jordan River, including the entire West Bank, remained subject to the Mandate’s requirement for close Jewish settlement – and that never changed until May 1948.

In May 1948, Britain declared an end of the Mandate, and Israel declared its independence. As of that moment, the entire former Mandate, including the entire West Bank, was subject to Israeli sovereignty under international law.

We all know what happened next. Arab armies, including Jordan, invaded Israel, and captured the West Bank. The war resulted not in peace agreements, but in armistice agreements – and both the Egypt-Israel and the Jordan-Israel armistice agreements expressly stated that the 1949 armistice lines (what many now call the 1967 lines or the Green Line) were not international boundaries, were established only due to military considerations, and were “without prejudice” to future territorial settlements or boundary lines.

Anyone – anyone – who asserts that the “1967 lines” are or ever were legally recognized international boundary lines is either willfully ignorant of or deliberately distorting the facts. Under international law, from 1948 to 1967, Jordan was the illegal occupier of the West Bank. When Israel won back this territory in the 1967 War, it was merely regaining its own territory. Therefore, under international law, it was never “occupied” by Israel, never “Palestinian territory occupied since 1967” as stated in the now-vetoed Resolution 2334. The United States will always veto resolutions that contain these false statements of fact.

This is not to say that the Palestinian people who live in the West Bank do not have their own legitimate history and their own rights – they do. Individual Palestinians have individual title to many, many parcels of land – and those rights are inviolate as well. If particular settlements were built on land actually owned by individual Palestinians, without appropriate due process of law under eminent domain principles and just compensation as recognized in virtually all nations of the world, those settlements may well be “illegal” in the sense that individual Palestinians have been improperly displaced as a matter of domestic and perhaps international law. But that is a far, far different thing from claiming that any Israeli settlement activity in the whole of the West Bank is a result of illegal activity and occupation.

The late U.S. Senator and Ambassador Daniel Moynahan is reported to have said: “Everyone is entitled to his own opinion, but not his own facts.” These are the facts. Disagreeing with this view of international law requires that you also disagree that there are international recognized boundaries of Jordan, Syria, Lebanon, and Iraq, because all were former parts of the defeated Ottoman Empire, all were split up with boundaries created by the same League of Nations Mandates. Either Israel’s legal boundaries extend to the Jordan River, or none of those countries have legal boundaries.

Does this mean that it is the U.S. position that the resolution of the conflict is to simply acknowledge that all of the land belongs to Israel, disregard the Palestinian narrative, disregard the long history of Palestinians also living in the former Mandate and their rights to have their own national home reflecting their own cultural values and belief, to be governed as they choose? Of course not. For decades, the U.S. has supported two states for two peoples, separation of Israeli from Palestinian, and that policy remains unchanged. But resolution of the long-standing conflict cannot ever occur if the starting point, the foundation, is based on false facts. In our view, Israel should give up the West Bank not because it is acting illegally or is compelled to do so under international law, but because it is in the best interests of both the Jewish people and the Palestinian people that it do so.

[Mr. Kerry’s actual speech described the difficulty of creating a contiguous Palestinian state in light of the “Swiss cheese” created by settlements, the difficulties of Palestinian life under Israeli governmental jurisdiction, and the state of siege that Israelis – especially in places like Sderot, that often defines how they live. Rather than repeat it, it is incorporated here.]

So, what must occur to move forward? How can we ever reach a time when there are two states, one Jewish and democratic, and one Palestinian and democratic? To understand that, we must again turn to facts.

And the facts establish that the Palestinians have rejected the opportunity for statehood repeatedly. General Assembly Resolution 181 in 1947 offered the Palestinians statehood; they rejected it. In 2000, with the mediation of President Bill Clinton at Camp David, Israeli Prime Minister Barak again offered Palestinian statehood to Chairman Arafat – and was refused. Again in 2008, Israeli Prime Minister Olmert offered Palestinian sovereignty on 97% of the West Bank along the so-called 1967 lines with land swaps to President Abbas; again it as rejected. Prime Minister Netanyahu has repeatedly called for face-to-face negotiations without preconditions, only to be rebuffed time and time again by the Palestinians, who insist that before even coming to the negotiation table, Israel must agree to the Palestinian final status demands. That is not “negotiation” – that is rejectionism.

Further, demanding a cessation of settlement construction as a precondition for commencement of discussions is itself nothing more than an unacceptable excuse. Israel ordered a 10-month settlement freeze in 2009 and 2010, but that did not lead to negotiations. Israel uprooted Gaza settlements in 2005, leaving the buildings intact for Palestinian use, but that did not lead to peace either. The existence of settlements or construction within them is not an impediment to either negotiations or peace in any way – since Israel has already demonstrated that it will abandon such locations when necessary to seek peace – and has offered to do exactly that regarding any settlements that must be abandoned in the West Bank to make way for a contiguous and viable Palestinian state.

In proposing this, we recognize that a significant and vocal segment of the Israeli public, particularly those on the right wing and in the settler movement, very strongly oppose any such moves by the Israeli government, insisting on their vision of Greater Israel. Just as the Palestinians must give up their dream of their claimed “right of return” to Israel, these Israeli groups must also give up their claims to all of Judea and Samaria. Peace requires concessions from both sides, but up to now, the international community has demanded concessions only from Israel, not from the Palestinians. That must change if an accord is ever to be reached.

The parameters of a lasting agreement have been known by everyone worldwide for a long time – Palestine to be sovereign in nearly all of the West Bank along the 1967 armistice lines with land swaps to account for already-in-existence Israeli settlements, no right of return to Israel proper (subject to appropriate compensation for lost property by Israel and the international community – and compensation as well to the hundreds of thousands of Jewish refugees forced from their homes in other Arab countries in 1948 and thereafter), an end to incitement and teaching of Jew-hatred in Palestinian schools and media – a lasting peace, not a temporary position with the hopes of getting more later. Israel proper is not “occupied” territory – there is no “occupied Haifa,” “occupied Jaffa.” The mantra of “Palestine shall be free from the river to the sea” must forever be abandoned if there is ever to be a final resolution of the conflict. Biased action against Israel in the UN and other international forums must cease.

Israel has demonstrated that it will give up land for peace in the past, and must do so again despite its own internal politics. But such concessions are meaningless unless the Palestinians internalize, educate, and act to recognize the right of the Jewish state of Israel to exist in peace and security, alongside a sovereign and vibrant contiguous state of Palestine.

Thank you.

About the Author
David H. Levitt practices intellectual property and commercial litigation law in Chicago, and is a pro-Israel activist.
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