Rebutting Palestine’s Illegal UN Push for Statehood that Divides Jerusalem, Attacks Israel


Skip Ash

November 28, 2012

8 min read




On or about November 29, 2012, Palestinian Authority (PA) officials will seek to obtain from the UN General Assembly what they have been unable to achieve via direct, bilateral talks with Israel, to wit, (1) international recognition of the existence of a state of Palestine (2) whose territory includes all territory within the former Mandate of Palestine that was captured by Israel during the 1967 Six-Day War and (3) whose capital is east Jerusalem. The territory that the PA wants recognized as part of a state of Palestine is the entire West Bank (including east Jerusalem) and the Gaza Strip.

The PA's attempt to achieve at the UN what it has been unable—or unwilling—to achieve via direct talks with Israel violates a whole host of prior agreements with Israel entered into freely by Palestinian officials. As such, the PA is openly and notoriously breaching its international agreements with Israel, itself a violation of international law. Further, it constitutes a form of "lawfare," that is, the perverse use of law as an instrument of war.

Various aspects of the PA's proposed draft resolution will be discussed as follows.

POINT: The PA seeks UN recognition of a state of Palestine "on the Palestinian Territory occupied [by Israel] since 1967" within "the pre-1967 borders."

REBUTTAL: The territory to which the PA is referring above is the West Bank and the Gaza Strip. At no time in history has there been an Arab Palestinian state or similar Arab Palestinian political entity exercising any form of national sovereignty over either parcel of land. After the British departed Palestine in May 1948, Jewish Palestinians declared their independence, thereby establishing the State of Israel. Israel's Arab neighbors immediately attacked the fledgling Jewish state. Rather than annihilate the infant state of Israel, Israel actually gained additional territory than originally allotted to it by the UN Partition Plan. The war ended with a series of armistice agreements that, at Arab insistence, determined that the armistice lines were not lawful borders, meaning that actual borders must still be negotiated.

Further, no Arab Palestinian political entity was established in 1949. Instead, the Jordanian army occupied the West Bank, and the Egyptian army occupied the Gaza Strip. For 18 years, both territories remained under belligerent occupation by foreign Arab armies until captured by Israel in 1967. Moreover, since 1967, no Arab Palestinian political entity has exercised sovereign control over such territories. Additionally, UN Security Council Resolution 242 (1967) only required that Israel return "territories" captured during the 1967 war, not "the" or "all the" territories it captured. Such wording was intentional. According to Lord Caradon, chief architect of the resolution,

[i]t would have been wrong to demand that Israel return to its positions of June 4, 1967, because those positions were undesirable and artificial. After all, they were just the places where the soldiers of each side happened to be on the day the fighting stopped in 1948. They were just armistice lines. That's why we didn't demand that the Israelis return to them.

Moreover, because the terms of the British Mandate have never been superseded, the right of Jews to settle throughout Palestine is still valid. As such, since Israelis (as successors to Jewish Palestinians) retain the right to settle throughout Palestine, they not only have the right to establish settlements in the West Bank, they also have an equal claim to the territory, thereby negating the Arab Palestinian claim that the territory is "occupied." Under such circumstances, at most, claims to the territory are disputed.

POINT: The PA is asking the UN General Assembly to take unprecedented and improper action in granting Palestinian statehood.

REBUTTAL: The UN does not have the authority to recognize a state nor does it claim to have such power. Such actions are the responsibility of individual governments:

The recognition of a new State or Government is an act that only other States and Governments may grant or withhold. . . . The United Nations is neither a State nor a Government, and therefore does not possess any authority to recognize either a State or a Government. As an organization of independent States, it may admit a new State to its membership or accept the credentials of the representatives of a new Government.

Thus, existence as a "state" is an a priori requirement for UN membership, and the UN realizes that it does not have the power to recognize a state. Instead, any determination of statehood by the General Assembly would be a raw exercise of politics, not law. As such, any state recognition by the General Assembly would be illegitimate, as would be the "state" so recognized.

For international law purposes, the Montevideo Convention contains the "best-known formulation of the basic criteria for statehood," to wit, to be a "state," an entity must possess a permanent population, a defined territory, a government, and a capacity to enter relations with other states. These criteria are widely considered to be the prime indicia of statehood, and the Palestinians' failure to meet a number of them absolutely preclude any legitimate claim to statehood by the Palestinian Authority.

Because of the ongoing Palestinian unwillingness to negotiate an agreement with the Israelis, the Palestinians lack a defined territory with legitimate borders. Moreover, the division between Hamas and the PA clearly demonstrates that there is no effective Arab Palestinian government. While the PA exercises control over the West Bank, Hamas controls the Gaza Strip. In addition, Israel has retained responsibilities and jurisdiction in Israeli settlements in the West Bank, and Israel retains control over external security of the entire region. These facts unequivocally confirm the fact that the Palestinians lack the territorial control and governmental capacity that is required for statehood or sovereignty.

The UN does not have the authority to recognize a Palestinian state. To try to do so subverts international law. Consequently, any General Assembly recognition is a legal nullity. Further, even seeking such a result demonstrates that the PA is incapable of keeping its words vis-à-vis treaty partners.

POINT: The PA argues that Israel acquired unlawful control over Palestinian territory by aggressive war.

REBUTTAL: It is well-settled that international law forbids acquiring territory through aggressive war. The issue is whether territory can be obtained through defensive measures. In effect, when a state violates international law by engaging in aggressive war and that state loses territory it occupies, there is no requirement in international law that such territory be returned to the violating state. In fact, any asserted requirement to do so would reward the aggressor vis-à-vis the victim. As such, Israel reasonably believes that territory may indeed be acquired through defensive measures.

In the case of the West Bank and the Gaza Strip, when Israel captured those territories in 1967, both areas had been under belligerent military occupation by foreign Arab armies for eighteen years. Neither of the occupying states, Jordan or Egypt, had any right to sovereignty over the respective territories they were occupying. Further, no Palestinian successor state existed anywhere in the territories of the former Mandate for Palestine other than Israel, the Jewish Palestinian successor state. As such, when Israel occupied the West Bank and the Gaza Strip as a result of winning a defensive war against neighboring Arab states bent on Israel's destruction, it acquired territories with no prior Palestinian sovereign. As such, since Israel was a Palestinian successor state to the British Mandate, Jewish Palestinians had a valid claim to such territories, a claim equal to that of Arab Palestinians. Because both Jews and Arabs can advance valid claims to the West Bank and the Gaza Strip, such territories are disputed territories. Consequently, negotiations between the parties are necessary to determine to whom the various territories belong.

In short, Israel's control of the West Bank, East Jerusalem, and the Golan Heights is fully consistent with international law. Israel has never occupied the West Bank and is not currently occupying the West Bank (one cannot occupy, in the sense of the Fourth Geneva Convention, territory to which it can—and does—assert a valid claim of sovereignty).

POINT: The PA acknowledges the necessity of conducting bilateral negotiations with Israel to resolve outstanding core issues, all the while attempting to bypass such negotiations in obtaining statehood recognition directly from the UN.

REBUTTAL: In its draft resolution, the PA recognizes the need to resume negotiations to resolve the crucial issues currently barring the two-state solution, namely, the control of Jerusalem, settlements, and borders—issues that are prerequisite to a two-state solution. Despite its apparent acknowledgment of its obligations to negotiate, the PA is attempting to circumvent the negotiation process altogether by appealing directly to the UN for statehood.

By attempting to obtain a declaration of statehood via the UN, the PA is in direct violation of a series of Israeli-Palestinian agreements that require bilateral negotiations. By taking its case directly to the General Assembly, the PA is openly and notoriously breaching its treaty obligations with Israel, obligations it freely assumed under the auspices of the international community. For example, Palestinian officials explicitly agreed not to change the PA's status outside of peace talks pursuant to the Interim Agreements. By appealing to the UN instead of negotiating, the PA is undermining all of the UN's efforts for peace to date. Were the General Assembly to recognize a form of Palestinian statehood via a status change, the UN would simply undermine its own legitimacy in the international community.

Because Israel has correctly concluded from the PA's request for statehood that the Palestinians have breached their solemn agreements and, thus, have no intention of honoring their obligations under such agreements, Israel is, consequently, also freed from fulfilling its reciprocal obligations under the same agreements.

Viewed from such a perspective, the PA's course of action is destructive to long-term Palestinian interests. For example, Israel could withhold from the Palestinians approximately $1 billion in collected taxes. Further, Israel could take steps to reassert direct political control throughout the West Bank or unilaterally incorporate portions of the West Bank deemed necessary for national security into the State of Israel. The current PA attempt to gain statehood recognition from the General Assembly will likely trigger a strong Israeli response that could derail indefinitely the achieving of peace between Israelis and Palestinians as well as the establishment of an Arab Palestinian state.

POINT: The PA cites in support of its claim to statehood status UN General Assembly Resolution 181(II) and UN Security Council Resolution 242, arguing that the resolutions call for creation of an Arab state in Palestine and return of territories occupied after the Six-Day War of 1967, respectively.

REBUTTAL: The UN General Assembly adopted Resolution 181 in November of 1947, setting forth a Partition Plan that called for establishing an Arab State, a Jewish State, and an area around Jerusalem to be under international control. While the Palestinian Jews accepted the Plan, the Palestinian Arabs rejected it. Although the Palestinians cite Resolution 181 in support of their claim for statehood, the following must be kept in mind: (1) all Arab states rejected outright Resolution 181 at the time of its promulgation; (2) the Palestinians continue to reject recognizing Israel as the Jewish state called for by the resolution; and (3) the Palestinians simply ignore the fact that Resolution 181 places Jerusalem and its environs under international control. Since the UN partition plan was contingent upon acceptance by both parties, its rejection by Arab Palestinians—coupled with the Arab attack on the newborn State of Israel in May 1948—effectively torpedoed the Resolution.

Further, the PA's claim that the Security Council Resolution 242 supports their notion that the boundaries of a future Palestinian State are already fixed and that Israel must return all lands occupied as a result of the Six-Day War wilfully ignores the text of the resolution. First, the Resolution makes no mention whatsoever of "Palestinians" or their cause (no Palestinian entity existed at the time—hence, Resolution 242 was aimed solely at Israel, Egypt, Jordan, and Syria). Second, Resolution 242 contemplates a "withdrawal . . . from territories occupied in the recent conflict," not withdrawal from the territories or all territories, proposed language that had been considered and rejected. As such, the actual boundaries of a future Arab Palestinian State are yet to be determined, further undermining the notion that a Palestinian State currently exists, let alone that one exists with the pre-1967 boundary lines as recognized borders.

In citing General Assembly Resolution 181 and Security Council Resolution 242 as support for the Palestinian claim of statehood status, the Palestinian Authority demonstrates their propensity to pick and choose from UN resolutions those portions that support their asserted claims while simply ignoring portions that undermine their positions.

In conclusion, if the General Assembly does act to recognize the PA as a "state," it will be acting illegitimately under international law and the "statehood" thereby conferred will be invalid. Further, the PA's very act of seeking such recognition from the General Assembly reveals the Palestinians to be wholly unworthy of trust, thereby precluding future negotiations with Israel, since Israel cannot be expected to enter solemn agreements with a party that lacks the integrity necessary to keep its word.