Ha’aretz Columnist Mangles History, Facts, and International Law

{Originally posted to the JCPA website}

On August 9, 2019, the Ha’aretz newspaper featured an op-ed article entitled “The Ignorance of Trump Envoy Greenblatt Is Just the Tip of the Iceberg.”¹

The author of the article, Shaul Arieli, described by Ha’aretz as a colonel in the IDF reserves, harshly criticized and attacked President Trump’s special envoy to the Middle East, Jason Greenblatt, who, in a speech to the UN Security Council on July 23, 2019, had expressed the Administration’s view on to how to achieve an end to the Israeli-Palestinian conflict.

Greenblatt asserted in his speech that the accepted bases of the world order – international consensus, international law, and UN Security Council resolutions – have been proven to be unsuccessful in seeking an end to the conflict.²

Regarding international consensus, Greenblatt observed:

In the case of the Israeli-Palestinian conflict, international consensus has not been achieved. Those who continue to call for international consensus on this conflict are doing nothing to encourage the parties to sit down at the negotiating table and make the hard compromises necessary for peace. In fact, they are doing the opposite — allowing people to hide behind words that mean nothing. International consensus is too often nothing more than a mask for inaction.

By the same token, regarding international law, he added:

International consensus is not international law. So let’s stop kidding ourselves. If so-called international consensus had been able to resolve the Israeli-Palestinian conflict, it would have done so decades ago. It didn’t. This conflict is also not going to be resolved by reference to “international law” when such law is inconclusive.

And regarding Security Council resolutions, Greenblatt stated:

This conflict will not be resolved by constantly referencing the hundreds of UN resolutions on the issue. The constant reference to these heavily negotiated, purposely ambiguously worded resolutions is nothing more than a cloak to avoid substantive debate about the realities on the ground and the complexity of the conflict. The interpretation of one of the most often cited resolutions — Resolution 242 — has been hotly debated over the past half-century. That debate has not brought us closer to a lasting and comprehensive peace.

In his article, Arieli presents this U.S. Administration viewpoint as a “threat to the post World War II international order” by dictating “an order based on force rather than decisions by the international community.”

He compared this viewpoint to a “giant iceberg threatening an ice-age on the existing international order” but ultimately melting away, leaving “international order to the forces of aggression.”

Arieli’s anxiety and fears for the integrity and future of the old international order would appear to be misplaced. Not being an international lawyer, he seems to be unaware of some basic principles underlying the very international order that he seeks to safeguard.

No Legal Standing to “International Consensus”

His reverence for international consensus and UN resolutions as a core base of the international order is utterly mistaken. Neither has ever been a source or basis for legal or political obligation.

While international consensus may reflect a prevailing political viewpoint of some states in the international community and may appear in the form of non-binding UN Security Council and General Assembly resolutions, it cannot serve to impose itself on sovereign states including Israel that have the prerogative to act in their own sovereign interests. This means that they have the sovereign right not to be pressured or obliged to bow to an international political consensus that conflicts with their own interests.

Similarly, while international law is undoubtedly a guiding element in the actions of states and norms of customary international law do oblige all states, international treaty law only requires those states that voluntarily use their sovereign prerogative and take upon themselves treaty obligations.

Arieli’s concern for the centrality of UN resolutions in the world order and as a basis for solving the Israeli Palestinian conflict is misguided. UN resolutions are not international law. Security Council Resolutions 242 and others adopted in the context of the Israel-Arab dispute are not obligatory. They were adopted according to Charter Chapter VI as peaceful and non-obligatory means of dispute settlement.

Arieli criticizes Greenblatt’s words regarding Jerusalem, in which he stated:

Only direct negotiations between Israel and the Palestinians can resolve the issue of Jerusalem, if it can be resolved. It will not be resolved in this chamber, in this institution, or in any other capital around the world.

That does not mean that the Palestinians can’t aspire to have a capital in East Jerusalem, with creative solutions that attempt to respect all three religions that cherish this incredible city. But if there is to be such a solution, only the parties themselves, through direct negotiations, can work this out.

Arieli inaccurately quotes Greenblatt, accusing him and the U.S. Administration of denying Palestinian claims to rights to the city: “According to Greenblatt, Islam didn’t rule in Jerusalem for 1,300 years, and the Palestinians have no rights in Jerusalem, only aspirations.“ He goes on to assert that Greenblatt’s words regarding Jerusalem indicate an ignorance of the history of Jerusalem and a denial of Palestinian claims regarding the city.

But since Arieli was actively involved, in his military capacity, in the negotiations with the Palestinians leading to the Oslo Accords, he knows full well that the issue of Jerusalem is indeed a to-be-agreed-upon Israeli-Palestinian negotiating issue.

In this context, Arieli should also be aware of the fact that even President Trump, in his declaration recognizing Jerusalem as Israel’s capital city, never denied the centrality of direct negotiations:

We are not taking a position of any final status issues, including the specific boundaries of the Israeli sovereignty in Jerusalem, or the resolution of contested borders.  Those questions are up to the parties involved.³

Furthermore, despite Arieli’s fear lest the Islamic presence in the area since 700 C.E. is being overlooked by the U.S. peace plan, one wonders whether Arieli has forgotten or doubts that the Jews have been around for a few thousands of years longer than that.

Distortion of Modern History

Arieli cites the resolution of the 1897 First Zionist Congress according to which: “Zionism seeks to establish a home for the Jewish People in Palestine secured under public law.”

He then proffers his own curious interpretation of this resolution, railing against Greenblatt:

In his historical blindness, he ignores that the Zionist movement’s call for a homeland for the Jewish people was based on two things: the concept of national aspiration and conditioning its fulfillment on international law and resolutions.

But no such thing appears in the 1897 resolution of the First Zionist Congress. To the contrary, a proposal to include the term “international law” was not accepted by Herzl, and there was no reference in the resolution to “international resolutions.”⁴

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A further example of Arieli’s inaccuracies is his assertion: “As it says in Israel’s Declaration of Independence, the state was founded on the basis of the resolution of the United Nations General Assembly.”

In fact, the Declaration of Independence says no such thing, and merely makes reference to the General Assembly 1947 Partition Resolution as UN’s recognition of the right of the Jewish people to establish its state.⁵ The State of Israel was distinctly not founded on the basis of that resolution.

Arieli’s viewpoint is indicative of an oft-claimed, and no less surprising and mistaken view that the State of Israel was created by the UN resolution, rather than by the extensive historic and legal factors listed in the Declaration itself, of which Colonel Arieli appears to be ignorant.

* * *

Claiming that Greenblatt confused the 1967 UN Security Council Resolution 242 with the 1948 UN General Assembly Resolution 194 regarding the Palestinian refugees, Arieli succeeds in confusing, misreading, and misinterpreting both resolutions.

General Assembly Resolution 194 of 1948 did not grant any legal or other right of return for displaced Arab refugees. It stated, in its eleventh paragraph: “Refugees wishing to return to their homes and live at peace with their neighbors should be permitted to do so at the earliest practicable date.”⁶

General Assembly resolutions cannot create international law or legal rights. From the terminology used in this resolution, and since this was a non-binding recommendation by the General Assembly, it is clear that neither Arieli nor the Palestinian leadership can rely on this resolution as a basis for a legal right, which was never established.

In fact, Arieli confuses the two resolutions even more so. While neither of the resolutions is obligatory, UNSC Resolution 242 of 1967 refers only to “achieving a just settlement of the refugee problem.”⁷ Since this did not specify Arab refugees only, it is considered to be equally applicable to Jewish refugees also.

As Arthur Goldberg, U.S. Ambassador to the UN and drafter of UNSC Res. 242 explained.

A notable omission in 242 is any reference to Palestinians, a Palestinian state on the West Bank or the PLO. The resolution addresses the objective of “achieving a just settlement of the refugee problem.” This language presumably refers both to Arab and Jewish refugees, for about an equal number of each abandoned their homes as a result of the several wars.⁸

Moreover, Resolution 194 of 1948 conditioned any consideration of the return of Arab refugees on their willingness to “live at peace with their neighbors.”

Arieli also forgets that the issue of refugees is an agreed-upon permanent status negotiating issue pursuant to the Oslo Accords, and as such, since it is accepted by the parties, it incorporates the previous calls to solve the refugee issue, through negotiation, and not imposition.

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On the issue of property, curiously and evidently out of the blue, Arieli recalls the Arab Peace Initiative adopted at the 2002 Beirut summit, claiming: “If Israel really wanted to resolve the issue of Jewish property, it would stop ignoring the Arab Peace Initiative that has been on offer for 17 years.”

However, the Arab Peace initiative, which bases itself on the “land for peace” principle and demands of Israel full withdrawal from all the territories and acceptance of an independent Palestinian state, makes no reference whatsoever to resolving issues of Jewish, or Arab property.⁹

What’s in a Word?

On the use of terminology, Arieli accuses Greenblatt and the U.S. administration, of trying to blur the legal terminology that applies to occupied territories by using the term “disputed territory.”

The truth is that the term “occupied territory” has indeed become a distinctly politicized expression used in the international community by states and international organizations only in the context of Israel, despite many other situations in the world in which territories are being occupied. As such, it can no longer be seen as describing a legal situation and indeed is prejudicial to any bonafide negotiation process.

The accurate description of the territories is indeed “disputed,” which is a factual description of the situation, devoid of political clichés.¹⁰

Again – by claiming that Israel’s Supreme Court has accepted the definition of “occupation,” Arieli misinterprets the court’s determinations, which indeed have used the term occupation in reference its interpretation of the international obligations that Israel has taken upon itself since 1967 to regulate its administration of the territories.

On the substantive question of the legal status of the territories, the court has repeatedly deferred responding to the question.

Compounding Errors of Fact

Arieli misquotes and even tries to redraft UN Security Council Resolution 242 (1967) by claiming in his article that the resolution: “opens with an affirmation of Article 2 of the UN Charter, which states that the obtaining of territory by conquest is unlawful, including in a defensive war.”

This is untrue and indicates an utter ignorance of basic provisions of international law as well as the basic documentation of the Israeli-Palestinian dispute and peace process.

Resolution 242 neither repeats nor affirms UN Charter Article 2. It emphasizes in its preamble “the inadmissibility of the acquisition of territory by war.” While this is indeed an accepted principle of international law, there is no reference to a “defensive war.” Even Article 2 of the UN Charter contains no such references.

* * *

Arieli’s philosophizing as to the “three things” that form the basis of the international commitment to a national home for the Jewish people in Palestine as being (1) the League of Nations, (2) denial of occupation and territorial expansion, and (3) the principle of self-determination. All this appears to be his own personal opinion and possibly wishful thinking.

However, the writer omits such international instruments as the 1917 Balfour Declaration, the 1920 San Remo Declaration, the 1922 League of Nations affirmation of the Mandate, and UN Charter Article 80, which constitute the legal and historic basis for the international commitment to a national home for the Jews. None of these make any reference to the “three things” that, according to Arieli, lie at the basis of the international commitment for the Jewish national home.

* * *

In glorifying “international consensus” as a means of imposing a solution to the conflict, Arieli dismisses Greenblatt’s reservations as to the viability of any unilateral steps in international and multilateral fora aimed at imposing a solution. Clearly, no unilateral step by any international organization or forum has the power to impose itself on Israel as a sovereign state and to pre-judge issues that are on the negotiating table, much to Arieli’s evident disdain.

By the same token, despite Arieli’s warnings, neither Israel nor the Palestinian Authority can impose on the other side or on the international community any unilateral action of their own choosing.

Failed Options Are Not an Option

In this context, Arieli voices regret at the fact that the Trump administration appears to be ignoring past attempts by Presidents Clinton, Bush, and Obama to resolve the dispute, as well as UN resolutions and previous attempts at negotiation, including the Annapolis process, which, in his view, determined parameters to resolve core issues of borders, security, Jerusalem, and refugees.

However, the reality is that all the previous attempts at settling the conflict have failed dismally, whether they came from Clinton, Bush, or Obama, or from the UN. Arieli’s insistence on past understandings such as Annapolis (in which he was evidently involved) ignores the fact that the Palestinians have not, since then, been willing to advance the process.

* * *

Railing against a political statement by Netanyahu expressing his opinion and hopes regarding settlements and future control of territory may well represent Arieli’s personal political opinion of Netanyahu’s own wishful thinking and electioneering. But there is nothing in such statements by Netanyahu to indicate legal commitment.

By the same token, is Arieli equally critical of the declared aspirations of Palestinian and Iranian leaders to eliminate Israel?

* * *

In conclusion, rather than dabbling in international law, of which he evidently knows very little, as well as in shallow, partisan political advocacy, Colonel Arieli should stick to his professional field of being a soldier.

At the same time, a respected newspaper such as Ha’aretz should have thought twice prior to allowing the publication of Arieli’s inaccurate and flawed op-ed.

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Notes