The UN Security Council Should Impose a Final Legal Status on the Occupied TerritoriesPosted: November 15, 2012 Filed under: Nuclear 3 Comments
This post is a follow-on from my recent post regarding the postponement of the Middle East WMD Free Zone conference.
The ME WMD FZ program is only one aspect of the overall set of arms control issues facing the Middle East. And of course, it’s an attempt to try and address these overall problems. But surely, like so many of the other international security issues facing the region, and by extension of significant interest and influence the rest of the world, these problems would be by far most effectively addressed if there was a final and permanent solution to the Israeli-Palestinian crisis which has been simmering since 1948.
Listening to the news this morning and hearing about the fresh round of rocket attacks from Gaza into southern Israel, and the responsive missile attacks into Gaza by the Israeli military, put this into my mind.
I think it’s time for the UN Security Council to step in and act under Chapter VII to legally determine the boundaries of a new Palestinian state, consisting of the West Bank (bordered at the 1949 Green Line), and Gaza, along with a sui generis legal solution for connecting them into a sovereign state, and a sui generis international administration or partition of Jerusalem.
At the moment there is total deadlock in the diplomatic process that has been laboring on between Israel and the Palestinian leadership for decades. And now with the Palestinian leadership divided, there is essentially no prospect for meaningful progress on a negotiated solution between the parties. And yet, the continuing situation of one state, Israel, and two occupied territories – a situation begun in 1967 – is gravely offensive to many principles of international law and human rights. And as the most recent violence in and around Gaza demonstrates, it is a continuing source of armed violence between the two sides, and comprises the most divisive international security dilemma in the world, the influence of which underpins most of the security issues facing the region, with serious implications for the rest of the world as well.
If ever there was a situation of a “threat to the peace” entitling the Security Council to act through its Chapter VII powers “to . . . restore international peace and security,” surely this is it.
And it’s not as if there is no precedent for UN involvement in this situation. As is well known, the UN General Assembly in 1947 adopted Resolution 181 which comprised a partition plan for the previous British mandate territory of Palestine, dividing it into two independent Arab and Jewish states. The reasons for UN involvement in this situation included prominently the fact that the territory in question was not the sovereign territory of any state, but rather a part of the post-WW I mandate system. Thus, the external involvement of the UN was seen as necessary to resolve the very sensitive question of how the status and organization of the non-sovereign territory should be determined.
I think the same consideration applies now. The West Bank and Gaza are not Israeli sovereign territories, but have since 1967 only been under the military administration of Israel. So it would not violate any principle of Israel’s sovereignty for the UN Security Council to act in the way I’ve proposed. The ICJ in its 2004 advisory opinion on the West Bank wall made it clear that Israeli settlements in the West Bank are illegal, and the court consistently used the 1949 Green Line as the legal determination of the boundaries of the West Bank occupied territory. So from a legal perspective, the situation is clear that the entirety of the West Bank east of the Green Line is not the sovereign territory of Israel. The West Bank and Gaza are occupied territory, as the court made clear, the sovereign title to which is and has been disputed for decades.
So doesn’t this situation just scream out for the UN Security Council to do the job it was mandated to do in the UN Charter, and respond to this most serious ongoing threat to international peace and security, which it alone can resolve, by determining that these occupied territories constitute a Palestinian state, thus imposing a final legal status on the territories, and hugely contributing to a solution to the Israeli-Palestinian crisis?
I think from a legal perspective, this is clearly legally justified and within the authority of the Security Council, and from a prudential perspective is so obviously what the Security Council should do.
So why don’t they do it? There’s one reason, and one reason alone, in my opinion. And it’s that the United States, which has a veto on all decisions of the Council, will not allow it to happen. I’ve written before about the undue influence of pro-Israeli political groups in domestic US politics. This influence and the general bias that the US has had towards Israel for decades, has led the US to veto almost all resolutions in the Security Council that would be in any way contrary to Israel’s perceive interests. And at the moment, the US still apparently thinks that it’s in Israel’s interests to allow the status quo to continue, and so it won’t allow this obviously sensible intervention by the UN Security Council to take place.
Israel, of course, doesn’t want the UNSC to take such action. My sense, bolstered by the ICJ’s findings in its 2004 decision, is that Israel is holding out for more advantageous terms, territorially and otherwise, for itself in any final status agreement than it would get through Security Council intervention per the proposal I’ve made. So I’m sure Israeli officials have made it clear to their US counterparts that they are not in favor of any outside UN intervention, and that this will undoubtedly work a continuation of the US policy of vetoing any meaningful UN Security Council involvement in the crisis.
To me, all this means is that the US is an accomplice to every violation of international law committed by both sides – Israeli and Palestinian – in this ongoing human rights debacle, because it won’t allow the one thing that might actually meaningfully address the underlying problems that give rise to the continuing violations.
Just my 2 cents of wisdom: The UN didn’t have any sovereignty over Palestine in 1947, and it does not have a title today. A final decision now would be in breach of international law as it was in 1947 (as confirmed by Sub-Committee 2 and experts on international law).
However, Israel does exist. Dissolving a state is not allowed either. What we know is that Israel accepted resolutions 181 and 194 when it applied for the UN, and the admission of Israel was a conditional one. So, an Israel withing the borders of UN resolution 181 might be accepted by the Palestinians also.
“The UN didn’t have any sovereignty over Palestine in 1947”
But a MANDATORY could certainly partition a Mandated territory (demonstrably so, because it happened at least twice before i.e. Jordan was partitioned off from Palestine, and Lebanon was partitioned off from Syria).
So a MANDATORY had the legal right to assign sovereignty *thus* and *so*, and the only restriction upon that right was its need to seek “the consent of the League of Nations” for any such decision, which post-1946 meant “the consent of the UN General Assembly”.
That’s what UNGA 181 was i.e. it was the vote that signalled “consent” to the Mandatory’s plan to create two states *thus* and *so*.
“and it does not have a title today.”
No, sorry, that’s simply nonsense. From the moment that the UNGA gave its “consent” to the Mandatory’s Partition Plan then the legal situation is this: sovereignty over this territory was partitioned up *thus* and *so*, and therefore any UNSC Resolution along the lines that Dan is suggesting is merely the Security Council making an authoritative determination that sovereignty was, indeed, handed out *thus* and *so*.
The wrinkle is, of course, that the Partition Plan lines are not the same as the Green Line i.e. Israel seized over half of the territory that legally belonged to the “Arab State” in 1948-49 and promptly claimed sovereignty over that territory.
But that’s not much of a legal obstactle, precisely because in 1993 Yasser Arafat recognized the state of Israel, which amounts (as least de facto) to the Palestinians ceding that territory to the Israelis.
But what’s left over (i.e. everything outside the Green Line) is clearly their sovereign territory, and the UNSC is well within its legal right to recognize that fact via a binding Chapter VII resolution.
[…] written a couple of posts lately on the Israel-Palestine conflict, the most recent of which is here, where I argued that the U.N. Security Council should step in to the situation and act under […]