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.

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

  1. Aside from the debatability as to whether or not a document created 94 years ago prior to the establishment of the Geneva conventions, prior to the establishment of the state of Israel, after the end of the British Mandate, by a now-defunct organization, the League of Nations, overrides the overwhelming international consensus among legal scholars, the UN, human rights organizations, and various other NGOs affirming the right of the Palestinian people’s self determination, there’s one major very striking flaw with his legal “analysis”.

    -The mandate notes the “historical connection of the Jewish people with Palestine and to the grounds for reconstituting their national home in that country”. Notice how they said “…in that country”. Not “in all of that country”. The word “all” was clearly omitted, and it was done so on purpose: the British nor the League of Nations had any intent to create a Jewish state in *all* of Palestine.

    I love how you’re scrupulous at noting the omission of particular words with regard the UN Res. 242, but not the Mandate.

    Regardless, your interpretation of 242 is inaccurate also. The absurd logic of the your argument here is that since the resolution did not say “all of the territories” then we must interpret it to mean “some of the territories”. No, this merely implies that the interpretation is at best, ambiguous. What is the ideal way to interpret it, then? Well, what did the security council members think:

    “The representative for India stated to the Security Council:
    It is our understanding that the draft resolution, if approved by the Council, will commit it to the application of the principle of total withdrawal of Israel forces from all the territories – I repeat, all the territories – occupied by Israel as a result of the conflict which began on 5 June 1967.
    The representatives from Nigeria, France, USSR, Bulgaria, United Arab Republic (Egypt), Ethiopia, Jordan, Argentina and Mali supported this view, as worded by the representative from Mali: “[Mali] wishes its vote today to be interpreted in the light of the clear and unequivocal interpretation which the representative of India gave of the provisions of the United Kingdom text.” The Russian representative Vasili Kuznetsov stated:
    We understand the decision taken to mean the withdrawal of Israel forces from all, and we repeat, all territories belonging to Arab States and seized by Israel following its attack on those States on 5 June 1967. This is borne out by the preamble to the United Kingdom draft resolution [S/8247] which stresses the “inadmissibility of the acquisition of territory by war”. It follows that the provision contained in that draft relating to the right of all States in the Near East “to live in peace within secure and recognized boundaries” cannot serve as a pretext for the maintenance of Israel forces on any part of the Arab territories seized by them as a result of war”

    Israel was the only country in the security council to express a contrary view (the rest abstained).

    It’s also worth noting you never mentioned the pre-amble (“Emphasizing the inadmissibility of the acquisition of territory by war and the need to work for a just and lasting peace in which every State in the area can live in security.”)

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