Eugene Kontorovich: “Disputing Occupation: Israel’s Borders and International Law”


Interesting post from Elder of Ziyon, who attended a talk at NYU by Professor Eugene Kontorovich:

Professor Eugene Kontorovich

Yesterday, I attended a talk by¬†Professor Eugene Kontorovich on “Disputing Occupation: Israel’s Borders and International Law” at NYU. Here is a synopsis, based on my memory.

Kontrovich started off by saying what international law is not. It is not UN General Assembly resolutions. It is not advisory opinions from the ICJ (which, he pointed out, was answering a loaded question that assumed illegality when it gave its opinion on the security fence.)

The first legally important act after the fall of the Ottoman Empire that is relevant to Israel’s borders is the League of Nations Mandate for Palestine, which noted the “historical connection of the Jewish people with Palestine and to the grounds for reconstituting their national home in that country.” After the British partitioned Western Palestine from Trans-Jordan, the implication is that all of the remaining Palestine would be the area of the Jewish nation.

If the Arabs had accepted the 1947 Partition Plan, then the further partition of Palestine into an Arab and Jewish state would have legal weight. But since they didn’t, the Jewish claim on all of Palestine remained in force.

The 1949 Armistice Lines (mistakenly called the “1967 borders”) are emphatically not national boundaries. They are explicitly stated in the armistice agreements as “not to be construed in any sense as a political or territorial boundary, and is delineated without prejudice to rights, claims and positions of either Party to the Armistice as regards ultimate settlement of the Palestine question” (from the Egyptian armistice,the Jordanian one says “without prejudice to future territorial settlements or boundary lines or to claims of either Party relating thereto.”) Their position (generally) had no demographic, political or geographic significance; they were simply where the opposing armies ended up at the last truce, with some minor adjustments. From the perspective of international law, they are not borders.

Jordan’s sovereign claims to the West Bank were not recognized by the international community.

The next important legal document is UN Security Resolution 242 at the end of the 1967 war. (While it is a Chapter 6 resolution, Kontotovich noted that it was referred to in some Chapter 7 resolutions, meaning it might have the strength of the stronger Chapter 7 resolutions itself with respect to international law.) He discussed the famous missing “the” from the phrase “Withdrawal of Israeli armed forces from territories occupied in the recent conflict” and noted that this was done deliberately to make the resolution purposefully ambiguous as to whether Israel must withdraw from all the territories. He noted that in the end, when Israel relinquished the Sinai and later Gaza, Israel had withdrawn from some 99% of the territories, so it cannot be accused of violating the spirit of the resolution.

Read it all.

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