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Resolution 242 does not mean what you may think it means

Middle East

It is generally accepted by the Palestinian leadership, the international community, and liberal Zionists that the territorial parameters of a two-state solution to the Israel-Palestine conflict are already determined. They would leave Israel within its current borders: Palestine would consist of the 22 percent of Mandatory Palestine outside those borders, namely the West Bank and Gaza. There would be some mutually agreed adjustments to the West Bank border.

It is also widely believed that such borders are mandated by UN Security Council Resolution 242. This article will show, by careful study of the wording of the resolution, that it makes no such prescription.

Confining the Palestinians within 22% of their homeland would be manifestly unjust, and could not possibly lead to a lasting peace, or a viable, contiguous Palestinian state. Palestine needs, and justice demands, much more territory than that. A new border between Israel and Palestine should be negotiated.

The Six Day War and Resolution 242

On June 5, 1967, after a period of increasing tension between Israel and the neighboring Arab states, and with Egyptian forces massing in the Sinai, Israel made a preemptive strike which destroyed the Egyptian air force on the ground. In the following war, which lasted only six days, Israeli forces comprehensively defeated the combined forces of Egypt, Syria and Jordan.

The ceasefire at the end of the war left Israel in military control of four territories that were outside its de facto borders, the Armistice lines of 1949 (Green Line). These territories were: the Sinai, part of the sovereign territory of Egypt; the Gaza strip, part of Palestine, under Egyptian military occupation since 1949; the Golan heights, part of the sovereign territory of Syria; and the West Bank (including East Jerusalem), part of Jordan, but held in trust for the Palestinians.

In all four territories Israel started to build settlements for Jewish Israelis, showing that it intended to make the conquered territories part of the State.

This repeated the pattern of the 1948-49 war. The State of Israel was proclaimed on May 14, 1948 within the borders specified in the UN Partition Plan, constituting 55% of Mandatory Palestine. Its forces were already operating outside those borders, and in the subsequent war with the Arab states Israel continued to conquer Palestinian territory and illegally incorporate it into the State. By the end of the war in 1949 78% of Palestine lay within the Green Line.

Now, after the six-day war, Israel had military control over 100% of Mandatory Palestine, plus territory in Egypt and Syria.

On November 22, 1967 the UN Security Council passed Resolution 242, which has been the basis of all subsequent attempts to reach a peaceful conclusion to the Arab-Israeli conflict:

The Security Council,

Expressing its continuing concern with the grave situation in the Middle East,

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,

Emphasizing further that all Member States in their acceptance of the Charter of the United Nations have undertaken a commitment to act in accordance with Article 2 of the Charter, [“All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.”]

1. Affirms that the fulfillment of Charter principles requires the establishment of a just and lasting peace in the Middle East which should include the application of both the following principles:

(i) Withdrawal of Israel armed forces from territories occupied in the recent conflict;

(ii) Termination of all claims or states of belligerency and respect for and acknowledgment of the sovereignty, territorial integrity and political independence of every State in the area and their right to live in peace within secure and recognized boundaries free from threats or acts of force;

2. Affirms further the necessity

(a) For guaranteeing freedom of navigation through international waterways in the area;

(b) For achieving a just settlement of the refugee problem;

(c) For guaranteeing the territorial inviolability and political independence of every State in the area, through measures including the establishment of demilitarized zones;

3. Requests the Secretary-General to designate a Special Representative to proceed to the Middle East to establish and maintain contacts with the States concerned in order to promote agreement and assist efforts to achieve a peaceful and accepted settlement in accordance with the provisions and principles in this resolution;

4. Requests the Secretary-General to report to the Security Council on the progress of the efforts of the Special Representative as soon as possible.

Read the words

There has been much controversy over the meaning of this resolution. It is said that to understand it you need to study the intent of the drafters. But the reason that it may seem vague and ambiguous is that the drafters did not all have the same intent. That is why it took them several days to arrive at wording they could all accept. The final version was passed unanimously. We can only work from those words. A Security Council resolution is not a puzzle to be solved; it is a legal document which means what the words say.

Principle(i) is a specific response to the recent war. There could not be a just and lasting peace that left Israeli forces in occupation of the territory they had taken in the war. They must go back to where they came from. That is, back to Israel, inside Israel’s de facto border, the 1949 Green Line.

Principle(ii) is general, and could be applied in any conflict situation. Put colloquially, it says that states in the area should stop fighting, agree where their borders are, and stick to them.

It is not difficult to work out how Principle(ii) applies in this case. The Arab states had not even recognized the existence of Israel, let alone its right to have recognized boundaries. Israel had not respected the right of the Arab states to have secure boundaries and had violated their territorial integrity.

The Resolution says nothing about the timing of the withdrawal. As far as the Arab side were concerned, Israel had taken their territory by force, and were intending to keep it and colonize it with Jewish settlers. They wanted an immediate return to the prewar positions before they would consider a permanent settlement. Israel said that, for its own security, it would need to leave its forces in place until there was a peace agreement.

If the drafters had said, in Principle(i), “Immediate withdrawal”, we might not have had 49 years of on-going Israeli occupation of the West Bank and Gaza. But they didn’t.

The Resolution is addressed to “states in the area.” It says nothing about the Palestinians and the territory of Palestine. If the drafters had included a third principle about the right of the Palestinian people to self-determination within Palestine we might not have had 49 more years of the denial of that right. But they didn’t.

Misunderstanding 1: New borders are to be negotiated to make Israel more secure.

According to the Jewish Virtual Library:

The parties were expected to make territorial adjustments in their peace settlement encompassing less than a complete withdrawal of Israeli forces from occupied territories, inasmuch as Israel’s prior frontiers had proved to be notably insecure.

This is fiction. Read what the words say. Principle(i) makes no reference to borders or a final settlement. It speaks only of the ending of the recent occupations. Principle(ii) says nothing about renegotiating any borders, it simply says that borders must be secure, recognized and respected. And that applies to all states, not just Israel.

The borders between Palestine and its neighboring states, Egypt, Syria, Lebanon and Jordan, were established and recognized in 1923 when Palestine was under the British Mandate. The borders between Israel and these neighbors followed the same lines. Israel did not respect the right of these states to have secure and respected borders when it crossed those borders in 1967 intent on conquest and colonization. The idea that the Resolution ‘expects’ Israel to gain territory as a result of those actions is ludicrous, because the preamble emphasizes the “inadmissibility of the acquisition of territory by war”.

There is no reason why these long-established borders should be re-negotiated. Of course, two neighboring states are always free to make changes to their mutual border by agreement (and with the consent of the population effected), but they will not come to agreement unless such a change will enhance the security of both.

The internal border between Israel and the rest of Palestine, including the West Bank border, is in a different category. Israel was initially recognized by other states in 1948 on the borders it claimed on May 14, the UN Partition Plan lines. These are the only recognized borders that Israel has ever had.

At the attempted peace conference between Israel and the Arab states in Lausanne in 1949 both sides accepted that the partition line would be the basis of discussion of the territorial question, but Israel then refused any retreat from the Green Line. This does not mean that the Green Line is recognized as anything other than a temporary de facto border. The armistice agreements themselves make it clear that:

The Armistice Demarcation Line is 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.

The Partition Plan border between Israel and the rest of Palestine, although recognized by outside states, was never agreed with the Palestinians or with the Arab states. The border between Israel and the rest of Palestine was therefore indeterminate in 1967, as it still is today. Principle(ii) requires a recognized border to be established, and this will involve negotiations between the parties.

Misunderstanding 2: Israel must withdraw from some territories, not all.

The resolution says “withdrawal from territories occupied”. Israel and its supporters point out that it doesn’t say ALL territories, and conclude that it means SOME territories. But one could equally conclude that because it does not say SOME territories it must mean ALL territories, and I suggest most people would regard this as a more reasonable interpretation.

Nevertheless, there is a degree of ambiguity. This is easily resolved by the Resolution itself: it emphasizes “the inadmissibility of the acquisition of territory by war”. It was Israel that had attempted to acquire territory by war, and therefore its forces had to withdraw.

Note also that Principal(i), when speaking of withdrawal, uses the plural ‘territories’ rather than ‘territory’, referring to the four separate territories which Israel had conquered. If Israel was allowed to keep ‘some territories’, it would mean that it could keep the whole of two or three of the four. It is preposterous to suggest that the Security Council, simply by omitting the word ‘all’, had thereby legitimized some of Israel’s recent conquests.

How did this ambiguity arise? Members of the Security Council who leaned to the Arab side wanted it to say ‘all territories occupied’. When the Council decided to omit the ‘all’ these members said they would still interpret the phrase as meaning ‘all territories occupied’. The Wikipedia page on Resolution 242 quotes Dean Rusk, US Secretary of State, explaining his reason for omitting the ‘all’:

We wanted that to be left a little vague and subject to future negotiation because we thought the Israeli border along the West Bank could be ‘rationalized’.

This is a perfect example of the futility of attempting to interpret the Resolution by considering the ‘intent’ of the drafters. The use of deliberate vagueness to express intention produces only confusion: drafters should say what they mean.

In this case, there is actually no need to say anything. The border to which the forces must withdraw is the de facto border of Israel, the 1949 Green Line. This was decided in 1949 by agreement between the parties, based on military considerations and other factors such as minimizing interference with the lives of local residents.

The process of withdrawal will involve discussions between the parties: there is nothing to stop them ‘rationalizing’ the lines by mutual agreement, providing it is stated that this is done without prejudice to a final border determination. Such a provision is always included in armistice agreements.

Misunderstanding 3: The permanent borders are to be based on the Green Line.

Lord Caradon, British representative at the United Nations, said the following when asked about the meaning of resolution 242 and the use of ‘territories’ rather than ‘all territories’ (my emphases):

What it states, as you know, is first the general principle of inadmissibility of the acquisition of territory by war. That means that you can’t justify holding onto territory merely because you conquered it. We could have said: well, you go back to the 1967 line [by which he means the 1949 Green Line] But I know the 1967 line, and it’s a rotten line. You couldn’t have a worse line for a permanent international boundary. It’s where the troops happened to be on a certain night in 1948. It’s got no relation to the needs of the situation.

Had we said that you must go back to the 1967 line, which would have resulted if we had specified a retreat from all the occupied territories, we would have been wrong… If we had attempted in New York to draw a new line, we would have been rather vague. So what we stated was the principle that you couldn’t hold territory because you conquered it, therefore there must be a withdrawal to – let’s read the words carefully – “secure and recognized boundaries.” They can only be secure if they are recognized. The boundaries have to be agreed; it’s only when you get agreement that you get security.

If we read the words of the resolution carefully we find that it does NOT say that withdrawal must be to ‘secure and recognized boundaries’, nor that it must be delayed until these permanent boundaries have been agreed. The plain words of Principle(i) say clearly that Israeli forces must withdraw to the Green Line. Principle(ii) says there must be recognized borders. It says nothing about where such borders might be. That is for the parties to decide. The two Principles are independent: both must be satisfied. Withdrawal of Israeli forces to the Green Line does not solve the border problem, but it is a necessary part of a solution to the conflict: a minimum requirement for territory that Israel must return to its rightful owners.

Caradon’s intent was that the permanent borders should be based on negotiations around the Green Line: negotiations in which Israel could only gain territory, not lose it. There is no support for this idea in the words of the Resolution. Nor could there be. This was the second time Israel had acquired territory by war. It is preposterous to suggest that a Resolution which begins by emphasizing “the inadmissibility of the acquisition of territory by war”, simply by omitting the word ‘all’, could have legitimized Israel’s land theft in the 1948-49 war.

Judge Al-Khasawneh of the International Court of Justice confirms this view:

The Green line is the starting line from which is measured the extent of Israel’s occupation of non-Israeli territory. There is no implication that the Green Line is to be a permanent frontier.

Establishing new borders

Principle(ii) is looking for a border determination as part of a just and lasting settlement of the Israel-Arab conflict. An Israel-Palestine border based on the Green Line would leave the Palestinian people with just the West Bank and Gaza, 22% of their homeland. Given an Israeli population of around 8 million, and a Palestinian population of around 9 million (including the West Bank, Gaza and refugees with a right to return), such a border would be manifestly unjust, and could not possibly lead to a lasting peace, or a viable, contiguous Palestinian state. Palestine needs, and justice demands, much more territory than that.

Lord Caradon said the Green Line is a “rotten” border. I am not sure on what grounds, but it was certainly rotten from the point of view of the Palestinian Arabs since it allowed Israel to keep the 23% of Palestine that Israel conquered in 1948-49. The partition border was also a rotten border because the territory allocated to the Jewish state in the Partition Plan included an almost equal number of Jews and non-Jews. Neither is a suitable basis for establishing the new border: it requires a complete rethink, with the aid of a Boundary Commission of experts from both sides, under independent chairmanship.

The work of the Commission will be influenced by the the future relationship envisaged between Israel and Palestine. This is unlikely to consist of two completely independent sovereign states. Given that the infrastructure and economy were developed for a single state in Mandatory times, and have been under single control since 1967, this would be impractical. At the minimum, I would expect an economic union and a mutual defense pact. There might be further integration with some form of federation or union into a single state. In all these cases, the border being defined would be an open one, (open to transit, not necessarily to change of residence) which should be a much less contentious task than defining the sovereign border between two states. (Interestingly, an economic union, open border and non-sovereign states were part of the 1947 UN Partition Plan.)

The Border Commission will need to consider such factors as demography, geography, transport, infrastructure, natural resources, industry, agriculture, and, above all, the wishes of residents. It may suggest a transfer of some Arab-majority towns close to the Green Line from Israel to Palestine, and perhaps some of the major Israeli settlements in the West Bank, close to the Green Line, would be transferred to Israel.

But the major recommendation must surely be for a transfer of a substantial amount of the sparsely populated Negev region from Israel to Palestine.

This is not a new idea. The Negev was allocated to the Jewish state in the Partition Plan as an area capable of absorbing large numbers of Jewish immigrants, having at the time only a small population of mostly Bedouin. The UN Mediator was the first to suggest,in 1948, that some of the Negev be transferred to the proposed Arab state, at that time as compensation for the loss of western Galilee. The Arabs, at the failed attempt at a peace conference in Lausanne in 1949 said that they would need the Negev to accommodate the returning refugees, since Israel was not willing to accept them. During the conference President Truman wrote a secret letter to Ben-Gurion deploring Israel’s refusal to provide territorial compensation for areas it had acquired outside the Partition Plan borders. Furthermore, the expulsion of 750,000 non-Jewish Palestinians and Israel’s de facto enlargement in the 1948-49 war meant that the original reason for allocating the Negev to Israel became obsolete.

Such a transfer would achieve three things:

1. provide territorial contiguity between the West Bank and Gaza;
2. provide space for the returning refugees, for Israeli Arabs who would prefer to live in Palestine, for returnees from the Palestinian diaspora, and for relocation of some residents from the over-populated Gaza Strip;
3. place the Bedouin population within Palestine rather than Israel, if that is their wish.

To keep contiguous both Israeli and Palestinian territory, there could be a neutral crossing point between the two states, similar to those in the UN Partition Plan (see map in a previous article).

The refugees

Resolution 242 also calls for a “just settlement of the refugee problem”. Previous resolutions had talked of a “return” by the refugees. What was just in 1949 is not necessarily what was just in 1967, or is just in 2016. My view of justice now is that the refugees should be given a lot of money, by Israel, to go where they want. Some may want to go to Israel or Palestine, some to stay in other Arab states, and some to go to ‘the West’. Recent history has shown that the preferred destination of displaced Arabs is Europe. I suggest that Britain in particular should be willing to accept Palestinian refugees, since it was the British Government’s policy of establishing a Jewish national home in Palestine that was the root of the conflict. I hope the US would also accept responsibility, since it was President Truman’s premature recognition of Israel that prevented a temporary UN Trusteeship which might have prevented the 1948-49 war.

A question for readers

I am an outsider with very little knowledge of the geography and demography of Israel/Palestine. Am I right in thinking that a Palestinian state or national area of around 9 million inhabitants in the West Bank and Gaza would not be viable? And if so, why has the PLO apparently been willing to accept this concept? I will reply to all comments.

dgfincham
About David Gerald Fincham

Dr. David Gerald Fincham is a retired academic scientist from the United Kingdom. He now writes about the relationships between religion, science, and peace. His website is religion-science-peace.org.

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118 Responses

  1. HarryLaw
    HarryLaw
    May 11, 2016, 6:43 pm

    In my opinion the wording of UNSC Resolution 242 is plain, and I am in agreement with you in its interpretation. It is a fact that several forests have been used to supply the paper needed to accommodate all the differing views on this subject. UNSC Resolutions are only of any consequence when all five permanent members can agree. The US would never agree with our interpretation, therefore any attempt at implementing it would be vetoed and consigned to the memory hole. Dr David Morrison has a good article on veto wielding members, and how they are above the law for all time. http://www.david-morrison.org.uk/iraq/ags-legal-advice.pdf
    “There is a fundamental contradiction written into the UN Charter, on the one hand article 2[1] states “The organization is based on the principle of the sovereign equality of all its members” but on the other hand, article 23 of the charter grants five of the members permanent seats on the Security Council, and article 27 gives each of them a veto over decisions of the council. Clearly, all members are equal, but some members are more equal than others”. The only way this will be resolved is in a Court of law with lawyers acting impartially, without any political maneuvering, [a tall order]. The ICC have the PA’s complaint to address and it is hoped that they will reach the same conclusions as the World Court [ICJ] in the ‘Wall case’ when all 15 Judges, including the US Judge offered the unanimous opinion that all the settlements are illegal. Thanks for all your very informative posts.

    • dgfincham
      dgfincham
      May 12, 2016, 3:36 am

      Harry Law: Thank you for commenting. I agree that the US veto is the biggest stumbling block to progress. Ultimately that depends on the American people. American politicians need to realize that they need votes more than they need money. How about starting an internet campaign where citizens can pledge that they will never vote for a politician who takes Zionist money?

      Another problem is that the PLO seems to have accepted the Zionistic interpretation of 242. (I have another article coming up about that.) They need to be convinced that the Israeli land theft of 1948-49 has not been legalized, and that Palestine has a good case for territorial compensation, as demanded (secretly, and so without effect) by President Truman.

  2. pabelmont
    pabelmont
    May 11, 2016, 9:44 pm

    The boundary between Israel and a projected actual Palestinian State will have to be agreed and as all know today, Israel has no interest in making any agreement of that sort which the PLO or any other Palestinian group could accept.

    If after all these years (almost 50 since 1967) the nations wish to intercede, good luck to them. UNSC 242 might be a guide but all it says is that Israel and Palestine must agree. The nations will have to coerce that agreement or (as we’ve seen in 49 years) that agreement will not occur.

    What might the nations do to coerce Israel? My recommendation, often made in this space, is that the nations require Israel to remove all settlers, demolish all settlements and the wall, and end the blockade of Gaza — and do all this in a shortish time, maybe a year or two. and this requirement must require Israel to publish a plan to accomplish all this, and require the publication thereof within a very short time, perhaps a month or two. Failure to publish the plan or to act according to the plan will bring on sanctions. A program of increasingly severe sanctions must accompany this international action. Israel always ignores “mere words”.

    So, an international requirement that Israel act backed up by sanctions. The actions required are clearly consistent with or even required by international law, so the international community would not be requiring anything other than a return to international legitimacy.

    Israel may ignore all this and put up with the sanctions. Of course. But my feeling is that if the sanctions are realistic and fierce and begin to be applied in good earnest, Israel will — not do what is required but — start negotiating with the Palestinians for peace!

    That is the coercion-towards-peace that I can imagine.

    For what it’s worth.

    • wondering jew
      wondering jew
      May 12, 2016, 12:57 am

      The change that will come to the Middle East will not be affected by a new interpretation of 242 published on mw. Certainly the timing of such a change will be key to what the new border between israel and palestine will look like. The closer we are to 2000 when Clinton proposed his parameters and 2003 when beilin and abd rabbo proposed a possible solution, the closer those borders will resemble those near misses. As time goes on other factors may make the 67 borders more sacrosanct than those proposed in 2000 and 2003. Or not. But a lawyerly disposition on the uselessness of statements by those who actually wrote the resolution, well, this is just politics. and easily forgettable politics as well.

      • dgfincham
        dgfincham
        May 12, 2016, 6:00 am

        Hello Yonah. Please do not accuse me of being lawyerly. The responsibility of a lawyer is to twist the meaning of the law as far as he can in favor of his client. That is, until he becomes a judge, when he must decide cases on the basis of the evidence without any bias. That is why I quoted Judge Al-Khasawneh.

      • Walker
        Walker
        May 12, 2016, 1:23 pm

        Yonah, you may suppose that UNSC 242 is irrelevant today. It’s certainly clear that Israel’s leaders and many of its citizens would prefer the “move along, there’s nothing to see hear” approach to this issue. But they are deluding themselves. Outside of the US, the world has not forgotten that Israel is violating the law. In the end Israel and the US will have to come to terms with this.

      • hophmi
        hophmi
        May 13, 2016, 12:00 pm

        Quite right, Yonah. This guy is just a polemicist who makes legal judgments as they suit his politics.

      • Mooser
        Mooser
        May 13, 2016, 1:28 pm

        ” This guy is just a polemicist who makes legal judgments as they suit his politics.”

        I’m sorry “Hophmi” perhaps I missed something . What are “his politics”?
        Could you give us a description of Prof. Fincham’s “politics”?

        I don’t think you can.

      • Mooser
        Mooser
        May 13, 2016, 1:41 pm

        “Thanks for the privilege of more than half of my people’s population on the European continent being murder”

        “Catholic conversion was not benevolent. It was often forced upon my people.”

        ” But I also hope that my people have ONE SINGLE STATE to call their own,”

        “My people stand to lose much more from the dismantling of their state than the dismantling of a Christian or Muslim one”

        “No need for a nation? Are you kidding? My people went through thousands of years of persecution in part because they did not have a land of their own”

        “Do you think I care whether some crazy academic denies the history of my people?”

        No polemics there. “Hophmi” is just like Herzl! “Herzl could reasonably say, “I’m a Jew acting on behalf on my people”

        Or “Hophmi” could put the words in his mouth, non-polemically.

      • Mooser
        Mooser
        May 13, 2016, 3:02 pm

        “This guy is just a polemicist who makes legal judgments as they suit his politics.”

        “Hophmi” I did some close reading, and you are right! Fincham’s politics stick out all over! The way I see it, he seems to be a person who thinks that Israel could be a legally delineated, agreed upon state which can live in peace and security. And that the Israelis are capable of working out some kind of agreement.

        Of course, I can see why you don’t agree.

      • Talkback
        Talkback
        May 13, 2016, 5:25 pm

        yonah fredman: “The change that will come to the Middle East will not be affected by a new interpretation of 242 published on mw.”

        Of course not, the Jewish rogue state doesn’t abide to international law.

        hophmi: “This guy is just a polemicist who makes legal judgments as they suit his politics.”

        The plank in your eye seems to be growing towards your brain rapidly.

    • dgfincham
      dgfincham
      May 12, 2016, 4:01 am

      pabelmont: thank you for commenting. I agree that there needs to be a great deal of pressure on Israel from the UN, and also from the BDS movement. The first step is an enforceable SC resolution demanding a complete halt to the settlement activity. Demanding demolition of the settlements and removal of the settlers won’t work. The SC would not vote for it, and Israel would fight even NATO to stop it. What to do about the settlements can be worked out later. The second step is an enforceable SC resolution demanding an end to the occupation of the West Bank. The modalities of the withdrawal need to be worked out between Israel and Palestine under UN auspices, and with a UN peace-keeping force, as suggested by the Arab states many years ago.

      • Mooser
        Mooser
        May 14, 2016, 12:04 am

        “Demanding demolition of the settlements and removal of the settlers won’t work.”

        Wait a minute. There’s not a thing, in Israeli or international or American or Canadian law, which says those settlers have to stay there a moment longer than they want to. Please keep that in mind.

  3. talknic
    talknic
    May 11, 2016, 11:16 pm

    @ DGF A few key points should be emphasized.

    A) UNSC res 242 clearly only calls for respect for and acknowledgement of the sovereignty, territorial integrity and political independence of every State in the area and their right to live in peace within secure and recognized boundaries free from threats or acts of force;”

    B) Law is by its very nature binding. The UN Charter is also binding in its entirety on all UN Member States, as are Conventions ratified by UN Member States.

    Although resolutions adopted by UNGA, other UN bodies and agencies or under Chapter VI by the UNSC are non-binding, the International Laws, UN Charter and Geneva Conventions emphasized and re-affirmed in those resolutions or in fact any UN resolution, are binding!

    C) Subsequent UNSC resolutions reminding Israel of its legal obligations make it very clear which territories were to be withdrawn from. UNSC Resolution 476 is one of at least EIGHT reminders of the 21st May 1968 UNSC Res 252, 267 (1969) of 3 July 1969, 271 (1969) of 15 September 1969, 298 (1971) of 25 September 1971, 446 (1979) of 22 March 1979, 452 (1979) 20 July 1979, 465 (1980) of 1 March 1980, 476 June 30 1980 and 478 August 20 1980

    D) By its references to UNSC res 242, the Egypt/Israel Peace Treaty very clearly shows the purpose of UNSC res 242. The treaty also tells us that withdrawal by Israel was a prerequisite for peace. http://wp.me/pDB7k-ZZ

    The only ‘negotiations’ were how and when withdrawal would take place.

    • dgfincham
      dgfincham
      May 12, 2016, 5:48 am

      Hi talknic: “The only ‘negotiations’ were how and when withdrawal would take place.” Absolutely. However, I am not sure whether you accept my contention that the border between Israel and Palestine is in a different category to the borders with neighboring states, and does need to be negotiated.

      • talknic
        talknic
        May 12, 2016, 9:27 am

        @ David Gerald Fincham ” … the border between Israel and Palestine is in a different category to the borders with neighboring states, and does need to be negotiated”

        How is it in a different category?

        Israel’s borders were proclaimed in order to gain International recognition.

        By default any territory outside of Israel’s proclaimed and recognized borders at 00:01 May 15th 1948 (ME time) when those proclaimed borders came into effect and were “recognized” by a majority of states, was quite simply not Israeli.

        Territories not within Israel or the already “recognized” pre-1948 borders of Lebanon, Syria, TransJordan, Egypt, were by default the territory of whatever remained of Palestine.

        The Israel/Lebanon Armistice Agreement of 22 MARCH 1949 for example is quite clear

        “Article V

        1. The Armistice Demarcation Line should follow the international boundary between Lebanon and Palestine.” http://unispal.un.org/DPA/DPR/UNISPAL.NSF/0/71260B776D62FA6E852564420059C4FE

        Israel’s 31st August 1949 letter to the Conciliation Commission also makes it clear that the territories Israel occupied under the Armistice Agreements and wished to claim at that time were not yet Israeli. MORE @ http://wp.me/pDB7k-l5#israels-intentions

    • dgfincham
      dgfincham
      May 12, 2016, 11:28 am

      talknic, re your comment May 12, 2016, 9:27 am “Why is the border between Israel and Palestine in a different category to the borders with neighboring states?”

      Well, I think I explained that, but here goes again. The borders between Israel and the neighbors were the same as those between Mandatory Palestine and the neighbors, and recognized as such on all sides. The border between Israel and Palestine was announced unilaterally by Israel, and recognized by powers outside the area, but it was not recognized by the Arab States or the representatives of the Palestinian people. The border between two states has to be established by agreement. Although Israel’s border declaration is binding on itself, in the sense that territory outside those borders, obtained by war, is legally not part of Israel, it is not binding on Palestine. Therefore the border is indeterminate, and open to negotiation. There was an attempt at that negotiation at Lausanne in 1949. Israel’s opening and final offer was everything inside the Green Line: the Arabs wanted the area of the Arab state in the partition plan, PLUS the Negev.

      • talknic
        talknic
        May 12, 2016, 11:58 am

        @ David Gerald Fincham “The border between Israel and Palestine was announced unilaterally by Israel, and recognized by powers outside the area, but it was not recognized by the Arab States or the representatives of the Palestinian people. The border between two states has to be established by agreement”

        John Quigley in a Memo to the Prosecutor – ICC

        ” THE CREATION OF STATES IN INTERNATIONAL LAW refers to secession as separation “from a State” [p. 388] and defines secession as “the creation of a State by the use or threat of force without the consent of the former sovereign” [p. 375]. As regards secession by Israel, the only possible “former sovereign” was Palestine. https://www.icc-cpi.int/NR/rdonlyres/D3C77FA6-9DEE-45B1-ACC0-B41706BB41E5/281879/JohnQuigleyiccmemoPNADeclaration3.pdf

        “Although Israel’s border declaration is binding on itself, in the sense that territory outside those borders, obtained by war, is legally not part of Israel, it is not binding on Palestine. “

        Majority rules. The majority of the International Comity of Nations recognized Israel.

      • pjdude
        pjdude
        May 12, 2016, 2:13 pm

        @ talknic

        funny on the 1948 illegal borders your no different than the most murderous zionist terrorist. the 48 borders have no legal validity despite your sense of entitlement to them. Israel was not a secession from palestine as you oh so dubiously want it to be. it was a violent foreign conquest. just because the US and countless other states violated international law to recognize Israel doesn’t magically make Israel’s terrorist war of conquest in 48 legal. in fact the United States recognizition is unconsititional. the montevideo convention preculdes the regonition of gains through force and coercion. all of Israel was gained that way. Despite your pretense to belief in the law you have the same sense of zionist entitlement belief in conquest makes right. either go all the way in defending the law or just quit pretending you care about it at all. this half way stuff just makes you look like an intellectual coward.

      • talknic
        talknic
        May 12, 2016, 4:40 pm

        @ pjdude

        “… the 48 borders have no legal validity despite your sense of entitlement to them”

        Uh? I have no sense of entitlement what so ever towards them or the rogue State of Israel.

        As far as I am concerned the Zionist Colonization of Palestine is a vile pyramid scheme that will require more and more territory to survive. It should never have been allowed to form a state. But illegally, violently, like it or not, Israel has become a state!

        ” Israel was not a secession from palestine as you oh so dubiously want it to be.”

        Like it or not, Israel exists, it can only have seceded from the Nation State of Palestine (see the LoN Mandate for Palestine Article 7 under which Palestinian Nationality Law was adopted in 1925). The territories didn’t belong to any other entity or state other than Palestine

  4. for-peace
    for-peace
    May 12, 2016, 1:20 am

    This article touches on a fundamental component of the long term intractability of the conflict: there are no recognized borders of Israel. What comes closest to it, the Partition Plan, is so far from the facts on the ground and the ideological goals of the Zionist movement such that, a transformation comparable in scope to the origins of Zionism may be needed for the eventual resolution.

  5. silamcuz
    silamcuz
    May 12, 2016, 4:16 am

    David

    “I am an outsider with very little knowledge of the geography and demography of Israel/Palestine. Am I right in thinking that a Palestinian state or national area of around 9 million inhabitants in the West Bank and Gaza would not be viable? And if so, why has the PLO apparently been willing to accept this concept? I will reply to all comments”

    The majority of Palestinians reject the international laws that gifted Israel territories that it had no right whatsoever to take, and this include all of the land within 1948 and 1967 borders. Palestinians do not want their homeland split, be given free of charge, to a bunch of fascist European settlers who essentially committed armed robbery when they arrived on Palestine.

    Any individual who commits armed robbery would rightfully be jailed for a really long time, but when a bunch of ideological fanatics do it, they get to keep their loot and be protected by the law too? Israel has no right to exist in any form on Palestine, and this will never change regardless which superpower gets to define “international law”.

    Israelis need to decide whether to be in the side of justice, and live equally with respect and dignity alongside humanity, or remain wallowing in their filthy delusions of European supremacism, disgraced and detested.

    • dgfincham
      dgfincham
      May 12, 2016, 4:31 pm

      silumcuz: “Israel has no right to exist in any form on Palestine”. I agree. The creation of Israel cannot be justified by the Jewish right to self-determination, by the Mandate for Palestine, by the Partition Plan, or any system of law, justice or morality known to mankind. It was accompanied by horrific crimes against the Palestinian people, which are ongoing to this day.

      But it is impossible to rewind history back to 1917 and start again. Israel is recognized by a majority of the world’s states, as is Palestine. Two nations exist in Palestine, and there is no possible political process which can make either disappear. The two nations have distinct identities, one as a mainly Jewish state, and the other as a mainly Arab and Islamic state. The only possible peaceful future is one in which the two peoples share the land as good neighbors.

      We cannot change the past: but what we do in the present does create the future. We need a vision of a better future, and then work out practical ways to achieve it.

      • silamcuz
        silamcuz
        May 15, 2016, 6:37 am

        A better future is Israel dismantled wholly without a trace, simple as that. Two states would be a merely stepping stone to that future, because Israel won’t be able to maintain its original lie when there is a legitimate Palestinian nation just next door it for everyone to see. Zionism depends on there not being a Palestine for it to be legitimate. Why would Israelis stay in a place and pay fealty to a government that is obviously illegitimate and has no reason in existing?

        “Two nations exist in Palestine, and there is no possible political process which can make either disappear. The two nations have distinct identities, one as a mainly Jewish state, and the other as a mainly Arab and Islamic state. The only possible peaceful future is one in which the two peoples share the land as good neighbors”

        I’m sorry but you are maddeningly ignorant on global politics and the current status of IP conflict. So what if two nations have distinct identities? National identities are fluid and dynamic and can easily change under transformative circumstances.

        And there are definitely political processes that will result in a unified Palestine.
        First we promote BDS to financially restrict the Zionists and uncloak their inferiority, then we empower the Palestinians by political support in the UN through electing pro-Palestine candidates. It’s not that hard. Countless countries do not recognize Israel as we speak, so it’s not really that impossible for the US to do the same.

    • Mooser
      Mooser
      May 13, 2016, 7:10 pm

      “Two nations exist in Palestine, and there is no possible political process which can make either disappear”

      Other possible processes might. When the stupid fad for Zionism finally winds down among Jews and others in the US and Europe (especially the US, nowadays) Israel will become “a Grossingers’s among the nations.”

      If a “two-state solution” should be arrived at, I hope nothing in the agreement would preclude Israel’s further shrinkage and return of more territory.

  6. Talkback
    Talkback
    May 12, 2016, 9:07 am

    A “just” solution to the refugee problem is the one the UN General Assembly has reaffirmed countless times and that is resolution 194 and the inalienable right to return. It has become customary law.

    • dgfincham
      dgfincham
      May 12, 2016, 3:53 pm

      Talkback, thank you for commenting. Of course the refugees have a right to return, I did not say otherwise. But they are human beings who have a right to decide for themselves where and how they want to live their lives. In my view, the most just solution is that they should be be given that opportunity.

      • hophmi
        hophmi
        May 13, 2016, 11:56 am

        If Palestinian refugees have a customary law right to return, then, of course, there are millions upon millions of other refugees who retain similar rights, including Sudeten Germans.

        One thing is crystal clear. No such right of return exists in international law for a population of refugees hostile to the existing government in a country to return enmasse to that country seven decades after the fact. 194, which is not binding, is clear. Refugees wishing to return must be willing to live in peace. I see no evidence that this is so with Palestinian refugees.

      • Mooser
        Mooser
        May 13, 2016, 12:35 pm

        “If Palestinian refugees have a customary law right to return, then, of course, there are millions upon millions of other refugees who retain similar rights, including Sudeten Germans.”

        Coming from you, “Hophmi” that means so much. I’m sure the disgruntled Sudetenland Germans appreciate the boost.

      • Mooser
        Mooser
        May 13, 2016, 2:45 pm

        “No such right of return exists in international law for a population of refugees hostile to the existing government in a country to return enmasse to that country seven decades after the fact.” – See more at: http://mondoweiss.net/recent-comments/#sthash.TsT9zTTl.dpuf

        Awww, “Hophmi’s” sooo cute when he sneaks in some Nakba denial.

        So you admit, by the way that the Zionists were in no sense refugees and simply invaded Palestine? They never lived there, and were quite hostile to the “existing government”!

        I know, “Hophmi”, I know, they got the Torah land-deed.

      • dgfincham
        dgfincham
        May 13, 2016, 3:01 pm

        @hophmi
        The right of return is an individual right, not a collective one. Whether those who wish to return are willing to live peacefully must be decided on an individual basis – difficult I know, but that’s what must be done.

        Refugees give up the right to return if they take up citizenship in another country.

      • hophmi
        hophmi
        May 16, 2016, 10:32 am

        “The right of return is an individual right, not a collective one.”

        It’s also not customary international law.

      • talknic
        talknic
        May 16, 2016, 1:25 pm

        @ hophmi May 16, 2016, 10:32 am

        // “The right of return is an individual right, not a collective one.” //

        “It’s also not customary international law”

        Best you tell Germany http://forward.com/news/154277/jews-stream-back-to-germany/

  7. Misterioso
    Misterioso
    May 12, 2016, 12:21 pm

    After having been denied admittance twice, Israel again sought UN membership in 1949. This time, however, in order to be considered, Israel formally agreed at the United Nations to obey the UN Charter, comply with General Assembly Resolution 194, which is based on the Universal Declaration of Human Rights, and to accept Resolution 181, the Partition Plan, as a basis for negotiations. Israel also signed the Lausanne Protocol at the 1949 Lausanne Peace Conference and thereby reaffirmed its commitment to Resolutions 194 and 181.

    Israel’s pledge to abide by the terms of Resolution 194 (as well as the Partition Plan as a basis for negotiations) and the UN Charter was made legally binding by including it in General Assembly Resolution 273 (11 May 1949) granting Israel UN membership. The full text of Resolution 273 is as follows:

    “Having received the report of the Security Council on the application of Israel for membership in the United Nations,

    “Noting that, in the judgment of the Security Council, Israel is a peace-loving State and is able and willing to carry out the obligations contained in the Charter,

    “Noting that the Security Council has recommended to the General Assembly that it admit Israel to membership in the United Nations,

    “Noting furthermore the declaration by the State of Israel that it ‘unreservedly accepts the obligations of the United Nations Charter and undertakes to honour them from the day when it becomes a Member of the United Nations,’

    “Recalling its resolutions of 29 November 1947 [UNGA Resolution 181, the Partition Plan] 3/ and 11 December 1948 [UNGA Resolution 194 regarding repatriation of Palestinian refugees] and taking note of the declarations and explanations made by the representative of the Government of Israel before the ad hoc Political Committee in respect of the implementation of the said resolutions,

    “The General Assembly,
    “Acting in discharge of its functions under Article 4 of the Charter and rule 125 of its rules of procedure,

    “1. Decides that Israel is a peace-loving State which accepts the obligations contained in the Charter and is able and willing to carry out those obligations;

    “2. Decides to admit Israel to membership in the United Nations.”

    Israel is the only state admitted to the UN on the condition that specific resolutions would be obeyed.

    Shortly after gaining UN membership Israel reneged on its commitment to abide by the terms of Resolution 194 (and the Partition Plan), which the Arab delegation, including Palestinian representatives, had accepted as a basis for peace negotiations at the 1949 Lausanne Peace Conference.

    There is no question whatsoever that Israel is legally bound to abide by the terms of Resolution 194.

    Commenting on Israel’s refusal to live up to its commitment to abide by Resolution 194 as a precondition for gaining admittance to the UN, Francis A. Boyle, Professor of International Law, declared: “Insofar as Israel has violated its conditions for admission to UN membership, it must accordingly be suspended on a de facto basis from any participation throughout the entire United Nations system.” (Palestine, Palestinians and International Law)

    • dgfincham
      dgfincham
      May 13, 2016, 8:42 am

      Hello, Mysterioso, thank you for reminding us of that important bit of history. The GA made a huge error in admitting Israel to Membership when it was still at war with Syria, and in the middle of peace negotiations in Lausanne where Israel was refusing to let any refugees return or return any of the territory it had captured in the war. And yes, it should have been suspended many years ago.

      • hophmi
        hophmi
        May 16, 2016, 10:35 am

        Which other nations do you believe should have been suspended besides Israel?

      • talknic
        talknic
        May 16, 2016, 1:29 pm

        @ hophmi May 16, 2016, 10:35 am

        “Which other nations do you believe should have been suspended besides Israel?”

        For Israel’s crimes … the USA!

  8. Antoine Raffoul
    Antoine Raffoul
    May 12, 2016, 2:44 pm

    David Fincham’s excellent analysis should have gone a bit further to expose the ‘illegality’ of the action by the UN General Assembly to force a partition plan upon a Mandated Nation – Palestine (Grade A Mandate).

    What legal power did the UNGA have to impose such a decision?

    Why was UNGA Res 181 not put forward for a vote by the UN Security Council?

    Why were the Palestinians – the indigenous people of Palestine – not consulted?

    • dgfincham
      dgfincham
      May 13, 2016, 9:11 am

      Thank you Antoine for commenting. To answer your questions:

      There was a long period of consultation, including with the Palestinians and Arab states, who comprehensively rejected any partition, proposing instead an independent Arab-majority Palestine with guarantees for minority rights.

      The GA did not have any right to impose partition. It recommended a Plan of Partition with Economic Union to the Mandatory and other Members, but also set up a Commission of three members to implement it. The resolution included a clause asking the Security Council to declare a threat to international peace and order if there was any attempt to prevent implementation of the Plan by force (which would have enabled the SC to implement it by force) but the SC did not respond.

      The Mandatory Power (Britain) refused to co-operate with the Commission in implementing the Plan against the wishes of the Arabs, and refused them permission to enter Palestine until 14 days before the end of the Mandate. The Commission asked the SC to provide troops to restore law and order in Palestine, thinking that the Arabs would then agree to partition. The SC declined.

      The UN Charter created a system of Trusteeship to take over from the Mandates if the mandated territory was not ready for independence. When it became clear that the partition plan was leading to all-out war, the US State Department tried to replace it with a period temporary trusteeship, and was still arguing for this in the UN on the evening of May 14, 1948, when news came in of Israel’s Declaration and its recognition by President Truman. The next day the GA withdrew the Commission.

  9. shakur420
    shakur420
    May 12, 2016, 4:46 pm

    As far as I understand, once Palestinian National rights on the ’67 borders were incorporated into the international consenus (what the UNGA votes on every year, the “Question of Palestine” resolution), the PLO and Syria joined that international (and Arab states) consensus. This is usually ignored, but critical to acknowledge.

    In 1976 there was a UNSC draft resolution backed by Syria and the PLO accepting the ’67 borders, vetoed by the US. If you go to the archives on the Israel Foreign Affairs Ministry website and search for it, you find that Israel boycotted the session because it claimed the resolution was “drafted by the PLO”. This is when you begin to start hearing about Israeli fears about, and actions to attack, what they referred to as “peace offensives” by the PLO – that is. The Palestinian leadership had largely accepted the international consensus on a peaceful solution.

    The PLO, by the mid-70s had accepted that there was no military option against Israel anymore. Egypt had demonstrated that it could challenge Israel, and subsequently with Israeli/American acknowledgement of this, saw that it could get back the Sinai in return for removing itself from the conflict. The PLO understood that it’s only weapon now was the law – that 242 had been passed by the UNSC – resolutions binding on all member states – and that this was as far as the world was willing to back the Palestinians. Historic Palestine, what’s refered to here in the article as Mandate Palestine, had been lost.

    This thought process is reflected in commentary and political records from the time (I can gather some examples if you’re interested), from Israeli, Palestinian and international sources, as well as by the attacks on this position by various Palestinian factions within the PLO that rejected the international consensus.

    I have to disagree with the idea presented here that the ’67 borders are not the legal, defined borders of Israel and reserved for a future Palestinian state. Having read about the issues faced by the drafters of 242, I agree that your representation is pretty accurate – “all” was excluded so as to appease certain hawkish elements pressuring the UN to avoid making hard commitments on borders. But ultimately, the drafters agreed that with the preamble regarding the acquisition of territory, “all” could be omitted without affecting the basic principles. It was understood then and it is understood now by any serious scholar on this issue (Alan Dershowitz, for example, barely counts as a clown, nevermind a scholar lol) that the only change to the ’67 borders would be “minor” and “mutual” landswaps, nothing else.

    Where does this leave us on the acquisition of territory though? Because it’s true that the ’49 armistice lines were considerably further out than the Partition boders. Well, from correspondence with experts on this issue, people like Richard Falk and Norman Finkelstein, and given that every UNGA/SC resolution that has passed since the 70s has refered to 242 in terms of settling the conflict, it’s also understood that Israel has been granted the only exception in history to the acquisition of territory rule, since it’s implementation – Israel has been allowed to withdraw to the armistice lines and adjust that border only on the basis of “mutual” and “minor” landswaps with the Palestinians.

    From understanding this international consensus to having done some homework on the drafting of 242 and various other binding and non-binding resolutions dealing with the issue, to seeking the opinions of the foremost experts on the issue regarding the political and legal record, I don’t feel anything presented in this article supports the idea that the ’67 border is not final and legal (save for the “mutual” and “minor” adjustments). This includes not only UNSC resolutions, but the ICJ ruling of 2004 confirming that territory outside the Green Line is “Occupied Palestinian Territory”. This reference is not made to anything on the Israeli side of the ’67 borders.

    I’ve seen some of the references presented here, about the drafters, but never interpreted in this way. The idea that a withdrawal to ’67 borders would not be largely representing a final border was an outlying position and by the mid 70s as all the Arab states, the Islamic Conference countries, all the NAM countries and the PLO itself had excepted this position, I don’t see how – even if it were true, what’s been said here about the rigidness of the ’67 borders – the interpretation presented here matters whatsoever.

    Not to be rude, of course, but it is the same, insurmountable obstacle that peopling supporting a single state in Israel-Palestine face – the law, the international consensus say, without a doubt, that ’67 borders are the borders. Of course, this is violated daily by Israel with full US support but all that’s needed (like in the case of Indonesia, South Africa) is for the US to tell Israel, enough. Israel will fall in line. For those proposing 1 state, or here the idea that ’67 borders are far from final, does 2 very, very critical and dangerous things – it weakens the Palestinian position regarding the law, the only arena where they are untouchable, and it damns Palestinians living under a brutal military occupation to another few decades of misery and erasure while a few of us try to change the law and the positions of literally the entirity of world governments (the US and Israel are virually alone in rejecting the annual “Question of Palestine” resolution at the UNGA, supported only by a few pacific islands no one’s ever heard of and sometimes in recent years, Australia and/or Canada).

    So while we may not feel the ’67 borders are historically just, our feelings are largely irrelevant and dangerous to the lives of Palestinians in the OPT if we use them as a basis for a solution. A legal, binding solution already exists, and has for about 40 years. The only obstacle to implementing it is US support for rejecting it. Palestinians have no military option but the law is on their side in terms of removal of all settlements, reparations, ’67 borders, East Jerusalem and natural reources. A “just resolution” to the refugee question may be less satisfactory but it us at least legally based on the principles of return and/or compensation. The entire world agrees, all major human rights regimes agree, the ICJ agrees (except on refugees, which it did not approach) and all of this is supported by the principle of self-determination enshrined in the UN Charter, decided by binding UNSC resolutions to mean a fully viable and independent state in the whole of the West Bank, including East Jerusalem, and Gaza.

    In this arena, the law, Israel and it’s Godfather the US, have no legs to stand on and they know it. That’s why they always reject the UN’s invlovement and demand that military power and “facts on the ground” determine the starting point for a solution, rather than the conflict. If we are to shed this weapon, and instead join Israeli hasbarists who try to ignore, distort and interpret the law as they fit, we weaken the Palestinian position. If we decide to follow that path further, we are asking Palestinians to hold on – perhaps for decades, maybe another half century – while we try to change the international consensus to align with our feelings of what’s just – at the price of freedom for Palestinians in the OPT in a relatively short time. That as, as soon as enough pressure can be put on the US government to stop supporting Israeli rejection of the law and international consensus.

    As a matter of tactics, to achieve the most humane and bearable solution, to pursue a path that will end the occupation as fast as possible, I decided to cast aside my personal feelings and take up the only defence the Palestinians have – international law. BDS would be far more effective if it focused more efforts on US support for Israeli rejection of the law, instead of towards Israel itself.

    Something to think about.

    • dgfincham
      dgfincham
      May 12, 2016, 6:18 pm

      Shakur: thank you so much for your thoughtful and informative comment. Of course, I disagree with your disagreement.

      1. You say “It was understood then and it is understood now by any serious scholar on this issue that the only change to the ’67 borders would be “minor” and “mutual” landswaps, nothing else”. Surely the legal effect of the resolution is determined by the words of the resolution, not by what some serious scholar thinks it ought to mean. The words of the resolution say nothing about the position of any borders.

      2. Surely the border between two adjacent states can only be agreed by those two states? The UN and the international consensus can put forward ideas, but those ideas are not legally binding. Nowhere in the Charter is the UN given the authority to tell two states where their border must be.

      3. You say that the Arab states and the PLO have accepted the Green Line (o.k, I give in, the 67 borders). Now I am not on firm ground here because I am still researching this topic, but I think that there is misunderstanding of various statements made in which they accepted resolution 242, and that was taken to be an acceptance of the 67 borders because of the prevailing false belief that what was 242 specified. As far as I have determined so far, the PLO did not explicitly accept the idea of a Palestinian state consisting only of the West Bank and Gaza until the Clinton parameters: and that of course was part of a failed negotiating process, not a commitment to which they can be held.

      4. You say “the ICJ ruling of 2004 confirms that territory outside the Green Line is “Occupied Palestinian Territory”. This reference is not made to anything on the Israeli side of the ’67 borders.” You cannot draw any conclusion from this, because the ICJ was not asked about the status of territory inside the Green Line.

      5. You cannot get peace unless you have justice. In 1948-49 Israel stole 23% of Palestine from the Palestinians. The Palestinian people will not and should not accept a settlement that does not compensate them with sufficient territory to make a contiguous and viable state.

      6. I did not “interpret” the quotes from Rusk and Caradon. I pointed out that their interpretation was not supported by the words of the resolution.

      • shakur420
        shakur420
        May 12, 2016, 9:22 pm

        To address your points:

        1. I don’t accept positions because scholars – credible or otherwise – believe them, rather through making their case based on available data, you reach a conclusion on whether you agree or disagree. This is a small sample, citing many of the same things you did, but the interpretation is different (another mistake you make about my comments that I will address later).

        http://www.counterpunch.org/2006/12/28/the-ludicrous-attacks-on-jimmy-carter-s-book/

        The US position was clear that only minor and mutual swaps on the ’67 border were acceptable, a near unanimous view at the UN was that withdrawal was to be to ’67 borders. This is not in dispute by anyone except the biggest of Israeli hasbarists, like Dershowitz for example. Palestinians who reject then’67 borders generally do so on the basis of Balfour and Partition, rejecting 242 outright as insufficient. They don’t cite it as malleable in terms of borders.

        242 states a withdrawal from territories occupied in the “recent” conflict, not to the Partition borders. Does this automatically erase your point about final borders? In itself, no, but we shall see with the following points.

        2. Perhaps in situations pre-dating the UN Charter (membership) or when negotiations bring about agreed borders, the UN Charter is not the deciding factor. Not after and certainly not once the UNSC takes control of an issue. This is a stipulation of the Charter, the UNSC literally can re-write or override international law once it adopts an issue.

        The Charter is a binding treaty on all member states and membership in the UN requires domestic ratification of it. Acceptance in the UN as a member state does not come with ambiguity on borders. In the case of Israel, as I pointed out, no binding resolution (by the UNSC) has ever disputed Israel’s borders and has never demanded more than a withdrawal to the Green Line. As I mentioned, asking whether this constitutes an exception to the acquisition of territory rule, led to the same answer by 2 undisputed experts on the issue – Richard Falk on the law and Finkelstein on the political record. They both agreed that binding UNSC resolutions – meaning the law – have only gone as far as demanding Israel withdraw to the Green Line.

        Whether Israel chooses to withdraw further is up to it. De facto positions, once accepted by setting a legal precedent – in this case the UNSC demanding only withdrawal to the Green Line and no further – become law.

        3. This can be further studied by looking into the vetoes 1976 resolutiin backed by Syria and the PLO, the Israeli rejection of it at the time, and commentary on it from various Palestinian factions, as well as the Israeli press. It is usually claimed that the PLO accepted the ’67 borders (lol if at all) in the 80s when they declared a state, or as you mentioned, during the Clinton negotiations.

        A simple look at the resolution I mentioned, the Israeli position on it and the commentary of that period, tells otherwise. I understand the confusion and disbelief about this given the attacks on the position from within the PLO itself, as well as from the outside. You can google “1976 Syria PLO draft resolution veto” as a starting point or check out Finkelstein and Noam Chomsky’s commentaries on the “PLO peace offensive”, and go through some of the references they cite. I can also help with this if you want.

        I believe there is also the matter of PLO leadership being shuffled in the late 60s or early 70s as preparation to adopt this position. I can’t remember the details but they did remove rejctionist factions/persons. I will look it up if you want.

        4. The ICJ did in fact address the Israeli side of the Green Line. The ruling is about the illegal wall Israel has been building in the OPT. The reason borders, Jerusalem and settlememts were tackled in this ruling was because those issues had to be finitely determined before ruling on the legality of the wall – or rather it’s route (this is why refugees were ignored, as it has no bearing on the wall). The ICJ clearly stated that if Israel built the wall on it’s side of the Green Line, it would be legal because that is within its legal borders.

        5. No peace no justice is a great slogan. I would never denounce or disagree with the principle. But in this case, the law has determined that “justice” includes the state of Israel on the ’67 borders. Again, back to feelings and reality.

        My personal feelings are that there should be no states in the world, no borders. But outside of a theoretical discussion with my buddies about how great it would be if we could be like Star Trek 200 years in the future, it has no basis in reality today or tomorrow. And probably not even next year. It’s a noble position and on a personal level I agree, I’m just not going to organize any campaigns around it cause I would prefer that more than 5 people show up to a rally on erasing borders lol.

        I’ve decided that a realistic freedom and quick as possible end to misery for millions of people is more important – more worth struggling for – than my personal maximum beliefs, wants, wishes and aspirations. You must decide for yourself what’s right for you. Don’t take this as preaching, I’m just saying it’s me. I didn’t vote for 10 years because of my principles. Now my principles force me to vote becasue of the life or death difference it can make for thousands of people – not people like me, but those who suffer greatly from cuts to social programs and benefits, the small differences that you see between major political parties in my country.

        As I’m also not Palestinian or Israeli and don’t live there, I really don’t have anything to say, or an opinion that matters. The most I can do, I think, is help from the outside and from that vantage point “enforce the law!!” strikes me as a more effective, more rational and tactically superior slogan than “no justice, no peace” – in the case of borders here.

        When Israel launches illegal military attacks on the OPT (Geneva IV, which governs belliegerent occupations, does not allow for any military attacks whatsoever by an Occupying Power on occupied territory and the ICJ was clear in 2004 when it stated that as an Occupying Power Israel has no ability to invoke the right to self-defence found in the UN Charter in regards to the OPT) and virtually all commentary/analysis (from so-called “pro” Palestinian or Israeli, to the major human rights regimes. to the UN Sec-Gen, to various governments) talks about “disproportionate” attacks or Israeli self-defence, I will stand and say loud and clear “no justice, no peace”. Because in that case, a violation of law is taking place, which can empirically be described as “no justice” – I can cite the law – and on the flip side, peoples under occupation have a right to use force, that is the law as well, so no peace until justice is achieved (adherence to the law). When a police officer shoots a child holding a toy gun and clearly violates the rules of engagement, yes, “no justice, no peace”.

        But when, because of my personal beliefs, I feel it’s unjust that a heroin addict is arrested and condemned to jail for possession, I cannot credibly and empirically say “no justice, no peace”. According to the law, justice was achieved as long as due process was not violated. If I don’t like it, to remain credible and within the relm of reality, I must work to have the laws changed, to shift society towards treatment instead of punishment.

        In the case of ’67 borders, international law has accepted a position that a historical injustice – the colonization and theft of the majority of historic Palestine – will be just once a Palestinian state is established on the ’67 borders. I can accept the historical injustice of wiping out the Natives of my land, and at the same time accept that the law normalized that injustice by granting my country sovereignty over that land. I may not like it, but I accept it. Not that you or anyone else should, again not trying to preach, I just don’t see the tactical relevancy of going outside the law in the case of Palestine, especially when the law is so strongly in favour of the Palestinians.

        Nothing I support, nor the law, says anything about Palestinians having an incontinguous state. A fully viable and independent state is demanded. Palestinian negotiators – take Taba as an example – have presented maps allowing Israel to keep hundreds of thousands of settlers in place on the border, while agreeing on equal territorial swaps and have presented acceptable solutions like tunnels or bridges to connect Gaza. None of the serious Palestinian positions (up untill Taba, after that is a different story as the Palestine Papers revealed) accepted the “swiss cheese” option of allowing Israel to keel the major settlement blocks and correponding bypass roads that carve up the West Bank. ’67 borders and a contiguous Palestinian state are 2 seprate matters. Borders here, was what I thought we were discussing.

        6. I have never seen anyone interpret 242, or the positions of the framers, to mean Israel gets less than the ’67 borders. I have seen hundreds of examples of Israeli propaganda trying to interepret it as meaning Israel may withdraw to a point a deems fit meaning annexing large portions of the West Bank. My understanding of the acquisition of territory principle and the binding nature of all UNSC resolutions (ICJ confirmed this in it’s 1949 resolution on reparations) leads me to accept that since all UNSC resolutions since 1967 go no further than ’67 borders, and in fact reiterate this over and over again, the de facto annexation of territory from the Partition border to the ’49 armistice lines has been accepted by the UN as an official border.

        Please let me know if you would like actual references to some of the stuff I cited.

      • Sibiriak
        Sibiriak
        May 13, 2016, 12:20 pm

        David Gerald Fincham: The Palestinian people will not…
        —————-

        The Palestinian people don’t have a unified position, and what would be acceptable in an agreement cannot, imo, be predicted in such a categorical manner.

        and [the Palestinian people] should not accept a settlement that does not compensate them with sufficient territory to make a contiguous and viable state.

        ———————————–

        Can you please define “viable”–it’s a central term in your argument. What evidence do you have that a Palestinian state in 22% of mandatory absolutely cannot be “viable”? Can you cite any studies to that effect?

        Currently, it is the Israeli occupation and blockade which are the major obstacles to economic development in Palestine. This has been shown in detail in various UN and EU economic analyses.

        Once the occupation ends, the Palestinian entrepreneurial spirit would be unleashed, foreign capital and aid would flow in, and Palestine would be free to form various kinds of special regional economic agreements, with Israel, Jordan, Egypt, the EU, the U.S. etc.

        On the other hand, you argue that that Palestine could never be “viable” without the addition of a small bit of Negev desert? On what empirical basis do you base that categorical assertion?

        It’s not clear to me why you are attaching such critical importance to such a border change–especially since it is a major departure from the international legal and political consensus, as Shakur has cogently argued

        And as far as contiguity is concerned, Gaza and the West Bank can be connected by a corridor (various proposals have been made.) On what empirical basis do you argue that such an arrangement would make Palestine “unviable”?

        ——————–

        You cannot get peace unless you have justice.

        The demand for the full measure of justice rarely leads to peace, especially apart from total military victory. History is full of unjust peace agreements; many have lasted, for a very long time– others have not. It’s a matter of the degree of justice, balanced against the power differentials of the groups involved. Take Crimea, for example (no parallel to I/P implied). Russia took it. Many Ukrainians consider that a great injustice. The demand for full justice would lead to war, not peace. Acceptance of the injustice will lead to peace.

        “No justice no peace” may be a good slogan, but its still only a slogan. The issue of exactly how much injustice is acceptable to avoid worse injustices, worse evils, still remains.

      • otc
        otc
        May 14, 2016, 9:46 pm

        @David Fincham.

        “As far as I have determined so far, the PLO did not explicitly accept the idea of a Palestinian state consisting only of the West Bank and Gaza until the Clinton parameters: and that of course was part of a failed negotiating process, not a commitment to which they can be held.”

        It may be too late for that.

        Palestine(as represented by the PLO) has been recognized by over 100 nations, as it has asked to be recognized, on the basis of the 4 June 1967 borders, in its plea for recognition.

        http://www.nad-plo.org/userfiles/file/fact%20sheet/who%20and%20why%20recognize%20Palestine%20Factsheet%20-%20english%20July%202011_pdf.pdf

        Also, from its application for Admission to the UN in 2011

        “Furthermore, the vast majority of the international community has stood in support of our inalienable rights as a people, including to statehood, by according bilateral recognition to the State of Palestine on the basis of the 4 June 1967 borders, with East Jerusalem as its capital, and the number of such recognitions continues to rise with each passing day.”

        And from resolution 67/19 admitting Palestine.

        “Reaffirming its commitment, in accordance with international law, to the twoState solution of an independent, sovereign, democratic, viable and contiguous State of Palestine living side by side with Israel in peace and security on the basis of the pre-1967 borders”

        http://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/a_res_67_19.pdf

      • otc
        otc
        May 15, 2016, 11:47 am

        Correction – resolution 67/19 upgrades Palestine to non-member observer status

      • MHughes976
        MHughes976
        May 15, 2016, 2:18 pm

        i think that the documents quoted by Dan do show that the Palestinian leadership of recent years has made a commitment before the UN, before the world, to accept the 67 borders and this commitment is binding in the same way as acceptance of 242 has been, since in negotiations one may be bound by promises made to third parties, a promise still being a promise. One may reply that the current leadership is not representative or legitimate or that any promise of that kind is morally forbidden, like selling some of one’s children into slavery. But those are other matters.
        The 2012 UN resolution creating observer status – in a way, what a wretched, insulting thing! – also makes it the official UN view that the Palestine of the classic 2ss – 67 lines and all – is ‘viable’. A World Bank report is cited. I don’t agree but I’m not much of an authority.
        Meanwhile, the Israeli interpretation of ‘withdrawal from territories’ is rubbish. If I say ‘I’m withdrawing my custom from restaurants that serve pink drinks’ I can only keep to my assertion if I withdraw from all of them. If I keep visiting some of them I’m clearly not doing what I said.

      • talknic
        talknic
        May 16, 2016, 1:45 pm

        @ shakur420

        “De facto positions, once accepted by setting a legal precedent – in this case the UNSC demanding only withdrawal to the Green Line and no further – become law. “

        No it doesn’t. The law effects all states and all similar situations at all times until it is rescinded. The UNSC demanding only withdrawal to the Green Line and no further effects only the few parties involved and stands only while the issue is an issue

        Furthermore all Law is binding and the UN Charter is binding in its entirety on all Member States, as are ratified conventions. When a majority of the International Comity of Nations adopt a legal custom or ratify a convention, it passes into Customary International Law.

        The Laws, UN Charter and relative conventions re-affirmed and emphasized in any UN/UNSC resolution are binding!

      • shakur420
        shakur420
        May 17, 2016, 9:25 am

        This for talknic. Not sure why but it doesn’t give me the option to reply directly ro your comment about the UN Charter and UNSC.

        In fact, in the Charter it sepicifically states that once the UNSC adopts an issue, it becomes the reponsibility of the UNSC, which then holds sole jurisdiction over it. The UNSC can in fact override existing int’l laws and the Charter itself. This was confirmed in the ICJ’s 1949 ruling in reparations where it defined the UNSC clearly as the executive arm of the UN able to enforce binding decisions on member and non-member states, overriding any other agreements, treaties, etc.

        It does mean there is conflicts in the law, this is completely normal to anyone who knows how laws are crafted and enforced, from municipal all the way to the international level. It’s crude, unjust, possibly ineffective and just all around ridiculous, but it is what it is.

        To drop 2 examples, let’s take the Palestinians right to use armed force. The major studies into the ability of peoples struggling for self-determination to use armed force have concluded that there are no int’l laws barring such actions – it’s absolutely legal. The UNGA also confirmed this multiple times in resolutions during the 80s, citing the specific examples of South Africans and Palestinians. The “rockets” from Gaza, the suicide bombs from the West Bank – we’ll ignore the details about their effectiveness and nature for our purpose here – can possibly be defined as “reprisals” under international military laws (the ICRC has an online database where you can see details on the concept). We don’t have any credible analysis by the major human rights regimes on this issue though, since they have conciously decided to ignore this law – they wish it were not legal so they ignore it. In any case, we have multiple UNSC resolutions – which are binding on member states and enforcible on non-member states, remember – every time “hostilities” flare up or whatever you wanna call it, that demand an end to the “rockets” or whatever possible legitimate/illegitimate armed resistance the Palestinians are engaged in. What this does then is override any int’l law that could deem these actions legal and makes them illegal, a violation of binding UNSC orders.

        It’s not fair, it’s not right, but it is. If we are to support Palestinians on the basis of the law, we must accept the whole of the law to remain credible. That’s what I’ve decided to do, others must decide for themselves. People analyzing or predicting likely final agreements on the Israel-Palestine conflict have brought this up in the context of Palestinian rights codified in int’l law, and correctly warned about it.

        The 2nd example, we can take the Palestine Papers exposing the Fatah/PA leadership’s willingness to waive their rights on borders, settlements, Jerusalem, refugees, reparations and resources. It’s alarming because as the powet of the UNSC stands right now, it could codify grave violations of Geneva IV – which governs belligerent occupations – as law. It’s stated clearly in Geneva IV that nobody – not the Occupying Power, not the leadership of occupied peoples, not any external int’l actor including organizations or states – has the ability to waive or forfieit the rights of occupied peoples. Meaning according to occupation law, not a single settlement can remain in place, no change to ’67 borders, no waiving of reparations or appropriation of resources from occupied territory can be legitimized. The danger is, if a settlement agreed upon by the PA leadership gets passed at the UNSC, violating some or all of these principlesnof occupation law, there’s no going back, UNSC orders override the Geneva Conventions.

        In the 90s, the ICJ ruled on the legality of nuclear weapons. They refused to render a ruling, expalining that the magnitude of attack and obvious violations of cusomary int’l law regarding military conduct were plain to see but the court was not willing to waive the right of self-defence of countries in situations where a nuclear deterent seemed necessary. 1 of the judges in his opinion kind of pointed out how ridiculous this ruling was given that decades ago the int’l community had decided to ban the dum dum bullet or whatever because of the extreme sufferinf it caused a single person, yet there was a debate on the legality of nuclear weapons lol. That’s how the law works, full of contradictions and ridiculous positions that don’t make sense, because of competing jurisdictions, methods of legislation, etc. It is what it is. You accept it or don’t, that’s up to you.

        I’ve decided that in the case of int’l geopolitics, I’m going to run with the slogan of “enforce the law!!”, so I have to accept the law as it is, with all it’s contradictions and deficiencies, if I want to cite and use those parts that are favourable to my position. I can’t pick and choose what I like, discard what I don’t. Either I accept it all, or reject it all. Both legitimate positions, I’ve decided to adopt the first position.

      • talknic
        talknic
        May 17, 2016, 11:48 am

        @ shakur420 May 17, 2016, 9:25 am

        “… as the powet of the UNSC stands right now, it could codify grave violations of Geneva IV – which governs belligerent occupations – as law. It’s stated clearly in Geneva IV that nobody – not the Occupying Power, not the leadership of occupied peoples, not any external int’l actor including organizations or states – has the ability to waive or forfieit the rights of occupied peoples. Meaning according to occupation law, not a single settlement can remain in place, no change to ’67 borders, no waiving of reparations or appropriation of resources from occupied territory can be legitimized. The danger is, if a settlement agreed upon by the PA leadership gets passed at the UNSC, violating some or all of these principlesnof occupation law, there’s no going back, UNSC orders override the Geneva Conventions”

        A UNSC decision on the I/P issue is applicable to the I/P issue. It doesn’t alter or codify any International Law. International Law applies to all states at all times, including those not involved in this particular instance.

      • shakur420
        shakur420
        May 21, 2016, 6:57 am

        Again, this is for talknic. Sorry can’t directly reply, hope you see this.

        Int’l law is not binding on all states at all times. That’s not how it works. The UN Charter and all UNSC resolutions are binding on all UN member states, that’s in the Charter and confirmed in the ’49 ICJ ruling on reparations I mentioned. Membership in the UN requires domestic ratification of the Charter, making it the “law of the land” in that country. Other laws – there are many treaties and such which comprise int’l law – can be binding or non-binding. They can also have partial jurisdiction.

        So the genocide convention, when the US ratified that, it entered reservations to various parts. Specifically, the US never ratified the jurisdiction portion regarding Americans – meaning the US never agreed to allow genocide law to be applicable to the US. Despicable, but that’s the law.

        In the 80s, when the ICJ ruled that the US was engaged in illegal aggression against Nicaragua, the court also admitted that the US had never ratified the jurisdiction of the ICJ to extend to the US and basically said there was nothing they could do, even though a stop to the attacks and reparations were ordered.

        Unfortunately, simply stating that int’l applies to all states at all times, implying that all int’l laws are binding on all states at all times, doesn’t make it true. That’s not how the law works.

        I’m no expert on it or nothing, but from learning about these cases I mentioned, it’s pretty clear that issues of jurisdiction, application and enforcement are specific to the law in question, and the way in which it is legislated.

      • talknic
        talknic
        May 21, 2016, 12:55 pm

        @ Shakur420 May 21, 2016, 6:57 am

        “Int’l law is not binding on all states at all times. That’s not how it works”

        Clue “INTERNATIONAL” Law. Applies to all nations

        ” Membership in the UN requires domestic ratification of the Charter, making it the “law of the land” in that country. Other laws – there are many treaties and such which comprise int’l law – can be binding or non-binding. They can also have partial jurisdiction.

        So the genocide convention, when the US ratified that, it entered reservations to various parts. Specifically, the US never ratified the jurisdiction portion regarding Americans – meaning the US never agreed to allow genocide law to be applicable to the US. Despicable, but that’s the law.”

        A) You’re conflating admittance to the UN whereby all member States agree on admission to uphold the Charter in its entirety at all times and the ratification of individual conventions whereby a country might take exception to some parts

        B) Read the US Proxmire Act https://www.google.com.au/search?q=US+Proxmire+Act

        “Other laws – there are many treaties and such which comprise int’l law “

        No they don’t. They apply only to those countries named in the treaty/ies. It is only when a majority of countries sign the same treaty, encompassing the same set of legal customs, that the substance of that treaty passes into Customary International Law.

        For example: The US adopted the legal custom of requiring a treaty or agreement in order to annex territory to the US. See the annexation of Texas https://www.tsl.texas.gov/ref/abouttx/annexation/index.html by 1st a referendum of the legitimate citizens of Texas who agreed to be annexed, then by a referendum of US representatives agreeing to the annexation.

        The same legal custom of having an agreement/treaty applied to Hawaii, Alaska. Thereby the US was in large part instrumental in that legal custom eventually passing into Customary International Law and subsequently being adopted by the UN in its charter and conventions dealing with Human Rights and Self Determination

        ” … it’s pretty clear that issues of jurisdiction, application and enforcement are specific to the law in question, and the way in which it is legislated”

        Again you’re conflating the ratification of conventions, whereby the ratifying country legislates to adopt that specific convention and its reservations into its own legal system and International Law which exists on the International stage, applying to all nations

      • otc
        otc
        May 21, 2016, 10:24 pm

        @Talknic

        “Clue “INTERNATIONAL” Law. Applies to all nations”

        Just repeating the word international, in capitals, proves nothing.
        It’s called international law because it applies between nations, distinguishing it from law internal to a nation.
        A treaty between only two nations is also international law.
        In the same way, trade that takes place across borders is called International Trade to distinguish it from trade internal to a country. That doesn’t mean that all nations participate in all International trade at all times.

        If you want to prove that “International Law applies to all states at all times, including those not involved in this particular instance” you need provide evidence and also specify which category of laws you are referring to. It probably applies to some and not others – I believe Hostage referred to Jus cogens laws. (but not sure about that). But as Shakur observed, just saying it doesn’t make it so.

      • talknic
        talknic
        May 22, 2016, 6:18 am

        @ Dan May 21, 2016, 10:24 pm

        “Just repeating the word international, in capitals, proves nothing.
        It’s called international law because it applies between nations, distinguishing it from law internal to a nation.”

        Hence the name “International” Law

        “A treaty between only two nations is also international law”

        Under the Law of Treaties, itself an example of International Law applicable to all nations in their treaties with other nations except where the Law of Treaties itself allows exceptions https://www.ag.gov.au/Internationalrelations/InternationalLaw/Pages/default.aspx

        “In the same way, trade that takes place across borders is called International Trade to distinguish it from trade internal to a country. That doesn’t mean that all nations participate in all International trade at all times”

        Trade is by agreement between countries, it can change for many reasons.

        The International Law of Occupation for example is applicable to any state who at any time might occupy territory not belonging to the occupying state https://www.icrc.org/eng/resources/documents/misc/634kfc.htm remaining in force even if no territory were to be occupied.

        The inadmissibility of acquiring territory by force is International Law applicable to all states, it remains in force at all times.

    • Sibiriak
      Sibiriak
      May 13, 2016, 11:23 am

      @shakur420.

      Excellent, well-reasoned post. Your position, which I agree with almost entirely, is not very popular here at MW for the reason you indicate: it seems so deeply unjust and unfair to allow Zionists to get away with so many crimes.

      I hope you stick around to follow this thread.

      • dgfincham
        dgfincham
        May 13, 2016, 3:47 pm

        Sibiriak: no I haven’t any empirical evidence that a Palestinian state on 22% of historical Palestine would not be viable: that is why I asked for such evidence at the end of the article, to which I have had no response. But with 8.5 million Israelis on 78% of the land, and a similar number of Palestinians on 22%, the latter are likely to be very overcrowded and life could be very difficult.

        I agree that there is no perfect justice, and the most just situation is not necessarily the best situation. But the thought of the Palestinian people, guardians of the Holy Land, being squeezed into 22% of their homeland, breaks my heart, and must surely break Palestinian hearts.

        I did not mention “a small bit of the Negev”. How much and where depends on what the Border Commission decides.

      • shakur420
        shakur420
        May 13, 2016, 3:56 pm

        Well I totally get it, I understand. I used to feel the same way and most certainly still do. I just realized that my personal feelings do nothing to help the situation – and might make it worse. Israel went from laughing at BDS to rallying govs all over the world to proclaim and even legislate that it seeks the destruction of Israel and is anti-semitic. Look at England right now, just disgusting and crazy. Sticking to the law avoids this completely.

        Like I keep saying, tactical decisions can lead you to different actions than your maximum goals and wishes. At the end of the day, you can’t eat principles and can’t pay your rent with morals. Real life is real and to ignore when trying to solve actual problems for breathing human beings, phew, it can be tough to accept but what’s more important? My feelings, pride and principles? Or actually achieving something?

        It’s a centuries-long conflict, this idea of principles vs pragmatism and given that I lean towards political anarchism, respect Bakunin’s position in the First International and absolutely hate marxists lol, I understand the difficulty people have. I’m an anarchist who quoted Joseph Stiglitz and Dean Baker on the economy lol.

        And yeah I’ll be around, I check Mondoweiss every day and make comments on twitter here and there but I just signed up finally, to bring my perspective since the article asked for it.

        At the end of the day, thus site is amazing and growing in terms of credibility. If we can help that growth, that would be grear.

      • Sibiriak
        Sibiriak
        May 13, 2016, 7:37 pm

        David Gerald Fincham:

        1) Confining the Palestinians within 22% of their homeland would be manifestly unjust, and could not possibly lead to a lasting peace, or a viable contiguous Palestinian state. [emphasis added]

        2) I haven’t any empirical evidence that a Palestinian state on 22% of historical Palestine would not be viable.
        —————————

        How can you state that 22% of their homeland “cannot possibly lead” to a “viable” Palestinian state, when you can provide no definition of viability nor any empirical evidence about it.

        Shouldn’t you assess the empirical evidence before making a categorical statement of impossibility?

  10. dgfincham
    dgfincham
    May 12, 2016, 4:53 pm

    @talknic May 12, 2016, 11:58 am. I completely fail what you are trying to say in this post.

    I say that the border between two states can only defined by agreement. If one state makes a unilateral declaration of the mutual border, the other is not bound to accept it, just because external states have recognized it.

    • talknic
      talknic
      May 13, 2016, 4:31 pm

      @ David Gerald Fincham May 12, 2016, 4:53 pm

      “I say that the border between two states can only defined by agreement”

      AGAIN : John Quigley in a Memo to the Prosecutor – ICC

      ” THE CREATION OF STATES IN INTERNATIONAL LAW refers to secession as separation “from a State” [p. 388] and defines secession as “the creation of a State by the use or threat of force without the consent of the former sovereign” [p. 375]. As regards secession by Israel, the only possible “former sovereign” was Palestine. link to icc-cpi.int

      ” If one state makes a unilateral declaration of the mutual border, the other is not bound to accept it, just because external states have recognized it”

      Quite true, however, independence by its very nature can only be unilateral. Israel unilaterally declared itself to be independent. Independent of what or who? Not the British, Palestine was not theirs and the Israeli declaration only came into effect at 00:01 May 15th 1948 (ME time). One minute AFTER the Mandate for Palestine expired. Israel became independent from Palestine. An act of secession.

      When a majority of nations adopt the custom of a convention, it passes into Customary International Law. Likewise when a majority of nations recognize a state., it becomes irrevocable. Majority rules, democracy at work, right or wrong, just or unjust, like it or not.

      For example, the majority of the International Comity of Nations has recognized Palestine as they asked to be recognized and;

      By their unilateral declaration of statehood, the Palestinians themselves have afforded Israel more territory than is legally, ethically, morally or logically due. All Israel has to do is end occupation. There is no legal, moral or ethical justification preventing it from doing so beginning immediately.

      However, Israel refuses to accept the fact that Palestine has a right to be independent. If the Jewish State recognizes Palestinian statehood Deuteronomy 20:15 becomes defunct.

      When the acquisition of territory ends, the Zionist colonial pyramid scheme will be starved of the one basic requirement it needs for its survival, more and more land

      On the other hand if Israel were to now adhere to International Law, it would be sent bankrupt, withdrawing, resettling hundreds of thousands of its citizens back into Israeli territory, paying for 68 years of intransigence.

      UNSC resolutions aren’t the problem. The Palestinians aren’t the problem. The US UNSC veto vote, Zionist Colonialism and this are the problem “THE STATE OF ISRAEL … will be based on freedom, justice and peace as envisaged by the prophets of Israel;”

      • MHughes976
        MHughes976
        May 13, 2016, 5:10 pm

        If borders can rightfully be defined by, and only by, agreement – treaty – between those concerned then international committees and general assemblies have no rights at all in such matters.

      • Mooser
        Mooser
        May 13, 2016, 11:53 pm

        “On the other hand if Israel were to now adhere to International Law, it would be sent bankrupt, withdrawing, resettling hundreds of thousands of its citizens back into Israeli territory, paying for 68 years of intransigence.”

        It wouldn’t take too much of that to put a damper on the Zionist project. Take all the fun right out of it.

      • dgfincham
        dgfincham
        May 14, 2016, 3:44 pm

        talknic: I still fail to understand what you are getting at.

        Do you agree with me that the border between two neighboring states must be determined by agreement; that there is no such agreement between the State of Israel and the State of Palestine; therefore that they must negotiate a border in order to arrive at a peace agreement; that the UNSC does not have authority to determine where the border must be; that Resolution 242 does not specify that the Green Line must be the basis of negotiation of the border; and that it has not legalized Israel’s land theft in 1948-49?

        If not, why not?

      • talknic
        talknic
        May 14, 2016, 7:21 pm

        @ David Gerald Fincham May 14, 2016, 3:44 pm

        “Do you agree with me that the border between two neighboring states must be determined by agreemen; that there is no such agreement between the State of Israel and the State of Palestine; therefore that they must negotiate a border in order to arrive at a peace agreement”

        Being in breach of the law and UN Charter, Israel must plea bargain with the Palestinians in order to remain solvent, within the law and hopefully at last at peace with its neighbours

        I’ve written extensively on the matter http://mondoweiss.net/profile/talknic/?keyword=plea+bargain

        “the UNSC does not have authority to determine where the border must be; that Resolution 242 does not specify that the Green Line must be the basis of negotiation of the border; and that it has not legalized Israel’s land theft in 1948-49?”

        I agree based on the actual and only wording of ALL the official documents including those of the Jewish Agency prior to Israeli statehood and the Israeli Government post Israeli statehood

  11. otc
    otc
    May 12, 2016, 9:44 pm

    @David Fincham,

    Before commenting on this article I have a question.
    Are you a lawyer, and/or do you have any training/experience in international law?
    If so I’d assume your bio would say so, but I just want to make sure.

    • dgfincham
      dgfincham
      May 13, 2016, 10:47 am

      Hello Dan, no I am not a lawyer and have no training in international law. The responsibility of a lawyer is to twist the meaning of the law as far as he can in favor of his client. Only when he becomes a judge is he required to make unbiased decisions on the basis of the evidence. That is why I quoted a judge of the ICJ who has expressed the same view as myself as to whether the Green Line is to be the permanent border.

      I am better than a lawyer, I am a scientist. My whole career has been spent in defining concepts precisely and drawing conclusions on the basis of reliable evidence.

      Please go ahead with your comment, I look forward to reading it.

      • hophmi
        hophmi
        May 13, 2016, 11:47 am

        Not every lawyer is an adversarialist with a client. Some are academics and some work for NGO’s and government and do not “twist” anything.

        I have no idea why Mondoweiss feels that a person with no training in international law, customary or otherwise, let alone standards of interpretations as they apply to UN resolutions and international treaties and conventions, or there International Court of Justice, should be given a platform here to give his layman’s opinion regarding 242. The Resolution is one of the most widely written about there is, and Mr. Fincham’s view isn’t particularly relevant. Rather than offer his uneducated legal opinions, he should research the issue using respected legal analyses of the law, and primary sources of those who were involved in drafting the Resolution.

      • John O
        John O
        May 13, 2016, 3:27 pm

        @hophmi

        “I have no idea why Mondoweiss feels that a person with no training in international law… should be given a platform here to give his layman’s opinion regarding 242.”

        It’s called free speech.

  12. dgfincham
    dgfincham
    May 13, 2016, 11:47 am

    @talknic, @shakur

    talknic: you seem to be saying, on the basis of a letter written in May 1948 defining the borders of Israel, that the partition line is, in 2016, the legal border between the States of Israel and Palestine, and that the Palestinians can therefore have no claim to territory within the partition line.

    This was not even true in 1949. When Israel refused to retreat from the Green Line, President Truman demanded that Israel provide territorial compensation to the Arabs. No-one said that the border was already determined, and could not be negotiated. In fact, the Conciliation Commission initiated negotiations, in which the Arabs asked for the territory of the Arab state of the partition plan, PLUS the Negev, to accommodate the refugees, since Israel was refusing to accept them.

    shakur: you are saying, on the basis of remarks by some “serious scholars” plus the “international consensus” that the Green Line is the legal border between the States of Israel and Palestine, and that the Palestinians can therefore have no claim to territory within the Green Line. But you, and those scholars, and the consensus, and many other people, have made a mistake: they have jumped to the conclusion that the withdrawal line is to become the basis of the permanent border. It is an easy mistake to make: I made it myself initially. But the words of the resolution do not say that: read the words again. Serious scholars do not define the law: judges do, and I quoted the words of a judge of the ICJ who said that “there is no implication that the Green Line is to be a permanent frontier”.

    talknic and shakur: you cannot both be right; please consider the possibility that both of you are wrong.

    The ‘legal’ border between two neighboring states is one that they have agreed. There will not be a peaceful future for the two states if they have not agreed their mutual border. States are sovereign: no outside body can tell them where their border must be (unless of course they cannot agree, and go into arbitration). The border between Israel and Palestine has never been agreed: it needs to be negotiated.

    The negotiation must take into account the events of 1948-49. Israel committed a crime: the acquisition by war of territory outside its declared borders. There must be territorial compensation for this in order to produce a just and lasting peace and a viable Palestinian state.

    Both of your views are prejudicial to this cause. I implore you to consider what I have said and think again.

  13. irishmoses
    irishmoses
    May 13, 2016, 2:09 pm

    I find my heart is with David Fincham but my brain sides with Shakur.

    The former seems to be saying ‘what might have been can still be so’, while the latter (Shakur) is saying ‘face reality’. The reality is that Israel created “facts on the ground” in 1948 (ethnic cleansing + territorial expansion, again in 1967 (more ethnic cleansing and territorial expansion), and has continued to do the same since (land seizures and settlements in the OPT).

    These “facts” won’t be reversed without massive intervention by either the UNSC or the EU, or the US, or some combination, which has so far proved unlikely. The success of the Iran nuclear agreement gives me a faint hope: the international community, faced with the possibility of the chaos that would be created by an Israeli attack on Iran, imposed severe sanctions on Iran to create leverage for an agreement whereby Iran would stop its nuclear program.

    That approach worked and could also work for the I-P conflict given similar unanimity of goals and sufficient resolve by the major powers. I can’t imagine anything more than 67 borders and token refugee return being imposed in such a scenario.

    UNSC 242 is pretty much a dead letter in my view other than being useful as a partial justification along with the much stronger Geneva 4 convention articles. What is required is unanimity and resolve by the major powers to impose a solution (a la Iran deal) leveraged by massive sanctions. Without that kind of major power resolve nothing will happen and the facts on the ground will become more and more permanent.

    What’s needed is dire enough circumstances for the international community to want to take such extraordinary measures. Unfortunately, Israel has always been clever enough to incrementalize its actions so the changes never appear severe enough to justify such measures. It is also very good at holding out the faint hope of negotiated settlement.

    • Mooser
      Mooser
      May 13, 2016, 2:32 pm

      “These “facts” won’t be reversed without massive intervention by either the UNSC or the EU, or the US, or some combination, which has so far proved unlikely.”

      So I guess in that case, there’s no possibility that dwindling Jewish numbers, and the alienation of Zionist support around the world will have any effect, much less any repudiation of Zionism by Jews? Oh well, then I guess it’s pretty much out of our hands.

      But, I think it’s only fair to demand the same guarantees for our numbers, unity and enthusiasm for Zionism as we demand for Israel’s “qualitative edge” in security, if any of this is going to work out.

      • irishmoses
        irishmoses
        May 13, 2016, 3:58 pm

        Per the Moose,

        “So I guess in that case, there’s no possibility that dwindling Jewish numbers, and the alienation of Zionist support around the world will have any effect, much less any repudiation of Zionism by Jews? Oh well, then I guess it’s pretty much out of our hands.”

        That would be nice: an outbreak of anti-Zionism-as-practiced self-shaming. That could do the trick if it caught on. Can’t see it happening though. The ostrich gene is too strong.

      • Mooser
        Mooser
        May 13, 2016, 6:47 pm

        “That would be nice: an outbreak of anti-Zionism-as-practiced self-shaming.”

        Not quite what I had in mind. I think we can do better. I think Jews can repudiate and oppose Zionism.
        No, it won’t have any effect on the intra-Jewish debate, that’s a one-way thing. Zionism can tell Judaism what to do, but never, ever the reverse!
        But Jewish opposition to Zionism may have an important symbolic effect and possibly even material effects.

      • Mooser
        Mooser
        May 14, 2016, 12:20 am

        “irishmoses” I guess what I’m trying to say is that I hope any two-state plan leaves lots of room for Israel to shrink from natural causes.

      • irishmoses
        irishmoses
        May 15, 2016, 3:24 pm

        Per the Moose: “So I guess in that case, there’s no possibility that dwindling Jewish numbers, and the alienation of Zionist support around the world will have any effect, much less any repudiation of Zionism by Jews? Oh well, then I guess it’s pretty much out of our hands.”

        I think we’re on the same page. I think shaming is a very powerful tool and can provide disaffected Jews with a way of repudiating and opposing Zionism or Zionism-as-practiced. (i.e. tribal self-shaming). There’s a new group doing that. Is it “Not in Our Name”?

        I like your new slogan: ““Any two-state plan must leave Israel all the room it needs to shrink.””

    • Sibiriak
      Sibiriak
      May 14, 2016, 9:55 am

      irishmoses: …the international community […] imposed severe sanctions on Iran to create leverage for an agreement whereby Iran would stop its nuclear program. That approach worked and could also work for the I-P conflict given similar unanimity of goals and sufficient resolve by the major powers. [emphasis added]
      —————

      To be effective, the severity of sanctions must be commensurate to the national resistance to their attached conditions.. The more powerful the national resistance, the more severe the sanctions need to be.

      In the case of Iran, agreeing to some limitations on its nuclear program hardly represented a major national capitulation or challenge the legitimacy of the Islamic revolutionary state. There certainly has been no popular nationalist rebellion against the concessions to the West.

      In the case of Russia, moderately severe sanctions might be effective in getting Russia to accept some aspects of an agreement on Eastern Ukraine that it might otherwise oppose. However regarding Crimea, sanctions would have to be an order of magnitude more severe, producing widespread social catastrophe, before Russia could possibly be induced to give the island back. And even then, who knows.

      In the case of Israel, demands (per DGF’s proposal) that it not only give up the entire West Bank and all the settlements and the dream of an undivided Israeli Jerusalem, but also a large portion of the Negev, significantly reducing its overall territorial extent, would represent a far greater, far more painful, far more divisive and far more explosive national capitulation, than Iran’s nuclear concessions, or even Russia giving up Crimea. Therefore, the sanctions would have to be of cataclysmic severity to compel such a capitulation.

      The third factor, of course, is the “unity of goals” you mentioned. IMO, the only possible unity can be around the enforcement of the international legal and political consensus, which, like it or not, recognizes the Green Line as the basis for a final settlement, allowing for mutually agreed land swaps.

      The idea that a unified international community would put drastically severe, potentially catastrophic sanctions on Israel to force a major violation of its territorial integrity — to give up (not swap) a substantial amount of Israeli territory inside the Green Line is– to put it bluntly, a complete and utter fantasy.

      • irishmoses
        irishmoses
        May 14, 2016, 11:48 am

        Per Sibiriak:
        “The idea that a unified international community would put drastically severe, potentially catastrophic sanctions on Israel to force a major violation of its territorial integrity — to give up (not swap) a substantial amount of Israeli territory inside the Green Line is– to put it bluntly, a complete and utter fantasy.”

        You misread my post or conflated with DGF’s. I see no realistic hope of any partition plan or partial-partition plan outcome. Here’s what I said:

        “I can’t imagine anything more than 67 borders and token refugee return being imposed in such a scenario.” In other words, a Geneva or Arab Peace Plan solution, probably including swaps of land for close-in settlements.

        As to your severity of the required sanctions argument, I agree although lessor sanctions might take enough of a long-term toll that Israel might comply. Hard to say. Lessor but still severe sanctions might create a lot of internal political turmoil in Israel (and among US Jews) that could cause many to leave Israel and many Jews in the US to withdraw their support. The bloom would be off the rose so to speak.

        My main point is that the Iran nuclear deal provides an existing template for how the international community (with my caveats) could force a compromise solution that would provide some modicum of justice for the Palestinians. It is the only method I see that could work. Certainly, negotiations, BDS, French plans, etc. how no chance except maybe on the margins.

        Good analysis and good examples on your part.

      • dgfincham
        dgfincham
        May 14, 2016, 5:41 pm

        Sibiriak: you talk of a legal consensus which recognizes the Green Line as the basis for a final settlement. But that legal consensus is based on a Zionistic interpretation of 242 that is not supported by the actual words of the resolution. Furthermore, legality is not determined by consensus, but by authoritative judgment.

        The Zionistic interpretation creates the impression that the SC has legalized Israel’s territorial seizures of 1948-49. As Uri Avnery put it in a recent article, “the world has forgiven us for that”. Well, the world should not forgive it or forget it.

        What I think the Palestinians should do is ask, through the GA, for an Advisory Opinion on whether the territory, outside its declared borders, added to Israel in 1948-49, was acquired by war, in violation of international law. It should also ask whether the regime imposed in those territories violated the sacred trust automatically created under Chapter XI of the UN Charter whenever a state administers the territory of a non-self-governing people. The answer will be yes to both.

        Armed with that judgment, Palestine will have a good case for asking for a substantial border negotiation along the lines I have suggested, and I believe the world will recognize the justice in that.

        I do not think it is a fantasy to suppose that Israel would give up some substantial territory in the Negev. The Negev is much less important to Israel than the West Bank, both emotionally and economically. It is good place to put the military and the nuclear reactor, but it has been hard to persuade Jews to settle there. I think Israel may well see an advantage in letting that go, and perhaps receiving some territory within the West Bank.

      • Sibiriak
        Sibiriak
        May 15, 2016, 8:30 pm

        David Gerald Fincham: Sibiriak: you talk of a legal consensus which recognizes the Green Line as the basis for a final settlement. But that legal consensus is based on a Zionistic interpretation of 242 that is not supported by the actual words of the resolution.
        —————-

        1) The international legal and political consensus is NOT based solely on an interpretation of res. 242; it’s based on legal and political ideas that have evolved over many decades and which are reflected in multiple UN resolutions and the ICJ “Wall Decision”, not just res.242.

        2) The international legal-political consensus is most decidedly NOT a Zionist interpretation. The legal consensus holds that the Green Line divides Israeli territory from Palestinian territory–in fact, Israel from Palestine; Israel entirely rejects that. The legal consensus holds that the West Bank and Gaza are Occupied Palestinian Territory; Israel entirely rejects that, instead labeling the West Bank “disputed territory.” The legal consensus holds that Israeli settlements across the Green Line are entirely ILLEGAL– full stop; Israel entirely rejects that.

        In sum, the idea that the international consensus reflects a Zionist legal interpretation is simple not true.

      • hophmi
        hophmi
        May 16, 2016, 10:40 am

        “I think Jews can repudiate and oppose Zionism.”

        Right, because the status and life of Jews internationally was so, so much better before we had a state.

        I mean, statehood totally sucks, right? I can’t imagine why the Palestinians and their supporters want one.

      • eljay
        eljay
        May 16, 2016, 11:24 am

        || hophmi: Right, because the status and life of Jews internationally was so, so much better before we had a state. … ||

        The way you and your Zio-supremacist co-collectivists tell it, the status and life of Jews internationally is no better now that a (war) criminal and religion-supremacist “Jewish State” exists. Have you forgotten that perpetual anti-Semitism and irrational “Jew hatred” is on the rise?

        || … I mean, statehood totally sucks, right? … ||

        The way you and your Zio-supremacist co-collectivists tell it, it sucks ass. Have you forgotten that every day is filled with threatening demographics and the existential fear of being wiped off the map and pushed into the sea?

      • Mooser
        Mooser
        May 16, 2016, 4:26 pm

        “I mean, statehood totally sucks, right?”

        Most religions can get along without it.
        But you’re right, “Hophmi”, statehood does mean a lot to Jews. Have any Jews ever rejected their US citizenship? Seems to me they enjoy it to the fullest, and a little bit over, when it comes to bending or breaking the law for Zionism.
        They sure do love to keep it when they make “Ali-oops” and make sure their kids have it.

    • dgfincham
      dgfincham
      May 14, 2016, 11:07 am

      irishmoses: you say that I seem to be saying ‘what might have been can still be so’. Not quite, that might be more appropriately applied to talknic, who hopes that Israel can be pushed back to the partition border. I do acknowledge that not all the facts on the ground can be reversed, even with massive pressure, but I think I have found a way that some of the ’48-49 facts might possibly be reversed as well as some of the ’67 facts, through a Boundary Commission.

      • irishmoses
        irishmoses
        May 14, 2016, 11:57 am

        As I said, my hearts with you, but my brain is with Shakur. As I said in my longer post above, any change on the ground would need to be imposed by the major powers and at best that would be 67 borders with swaps for close-in settlements, a corridor to Gaza, token refugee return. In the real world, there is no way you’re going to ever get more than that. Sad, but true.

        Appreciate your article and all the thoughtful comments it elicited.

      • talknic
        talknic
        May 14, 2016, 1:13 pm

        David Gerald “talknic, who hopes that Israel can be pushed back to the partition border “

        Not at all. It’s gone way beyond any hope of that becoming a reality, as planned.

        I contend that people be shown that it is the proclaimed and only Internationally recognized border and;
        armed with that knowledge as a starting point people can eventually arrive at an informed opinion, understand the real cause of the situation, why the UN is not biased against Israel and why Israel is deserving of at least sanctions, boycott and even UN approved military action.

      • talknic
        talknic
        May 14, 2016, 7:50 pm
  14. dgfincham
    dgfincham
    May 13, 2016, 5:07 pm

    @hophmi

    It needs no legal analyses to understand 242. It is extremely simple. You just need to read the words. It says two things. (i) Israel forces mjust withdraw from territories occupied in the recent conflict; (ii) there should be recognized and respected borders.

    Does it say the Israel can keep some of the conquered territory? No.
    Does it say that the Green Line is to be the permanent border? No.
    Does it say the permanent borders must be agreed before Israeli forces withdraw? No.

    • just
      just
      May 13, 2016, 5:19 pm

      Beautifully said, David Gerald Fincham. I have been following this conversation after reading this detailed and important article yesterday. I have enjoyed it, and have learned some things along the way.

      I am impressed and thankful for your efforts here. You are most generous to take the time to respond thoughtfully to the posters.

      • Mooser
        Mooser
        May 14, 2016, 12:37 am

        “Beautifully said, David Gerald Fincham. “

        Yes, and I add my thanks.

      • dgfincham
        dgfincham
        May 14, 2016, 10:49 am

        Just: thank you for your kind words. I have always appreciated your comments here.
        Kind regards, David

        And thank you too Mooser

      • Mooser
        Mooser
        May 15, 2016, 1:40 pm

        “And thank you “

        And thank you for your tolerance and good humor.
        I got a lot out of this thread. I was able to articulate in one sentence (there’s a lot of coffee, milk, and brown sugar in my keyboard, which promotes succinctness.) what I might have rambled on forever trying to say:

        “Any two-state plan must leave Israel all the room it needs to shrink.”

      • just
        just
        May 15, 2016, 2:14 pm

        Beautifully said, Mooser.

    • hophmi
      hophmi
      May 16, 2016, 10:54 am

      Does the resolution say anything about Palestinian national rights? No.

      • talknic
        talknic
        May 16, 2016, 1:19 pm

        @ hophmi May 16, 2016, 10:54 am

        “Does the resolution say anything about Palestinian national rights? No”

        Why would it? UNSC res 242 was to achieve peace between warring UN Member states. Read the Egypt Israel Peace Treaty, an instance where UNSC res 242’s purpose was brought to a close.

    • talknic
      talknic
      September 8, 2016, 4:30 pm

      David Gerald Fincham May 13, 2016, 5:07 pm

      “It needs no legal analyses to understand 242. It is extremely simple. You just need to read the words. … (ii) there should be recognized and respected borders”

      Mmmm … nope. It actually says ” … respect for and acknowledgement of the sovereignty, territorial integrity and political independence of every State in the area and their right to live in peace within secure and recognized boundaries free from threats or acts of force;” Israel, Lebanon, Syria, Jordan, Egypt already had recognized borders and by default so did whatever remained of Palestine after Israel’s borders were proclaimed and recognized

  15. calm
    calm
    May 14, 2016, 1:51 pm

    Is Robert Fisk Right?

    Calm

    Robert Fisk’s World: One missing word sowed the seeds of catastrophe
    No one in 1967 thought the Arab-Israeli conflict would still be in progress 41 years later
    By Robert Fisk
    December 20, 2008
    http://www.independent.co.uk/opinion/commentators/fisk/robert-fiskrsquos-world-how-the-absence-of-one-tiny-word-sowed-the-seeds-of-catastrophe-1205017.html

    The Israelis say that they are not required to withdraw from all the territories – because the word “all” is missing and since the definite article “the” is missing before the word “territories”, its up to Israel to decide which bits of the occupied territories it gives up and which bits it keeps.

    Hence Israel can say it gave up Sinai in accordance with 242 but is going to keep East Jerusalem and much of the West Bank for its settlers. Golan depends on negotiations with Syria. And Gaza? Well, 242 doesn’t say anything about imprisoning one and a half million civilians because they voted for the wrong people. No one in 1967 dreamed that the Israeli-Arab conflict would still be in ferocious progress 41 years later. And as an Independent reader pointed out a couple of years ago, the Security Council clearly never intended the absence of a definite article to give Israel an excuse to stay in the West Bank. Alas, our reader was wrong.

    I’ve been going back through my files on 242 and discovered a most elucidating paper by John McHugo, who was a visiting fellow at the Scottish Centre for International Law at Edinburgh University. He points out that pro-Israeli lawyers have been saying for some years that “Resolution 242 unanimously called for withdrawal from ‘territories’ rather than withdrawal from ‘all the territories’. Its choice of words was deliberate… they signify that withdrawal if required from some but not all the territories”.

    McHugo is, so far as I know, the only man to re-examine the actual UN debates on 242 and they make very unhappy reading. The French and Spanish versions of the text actually use the definite article. But the Brits – apparently following a bit of strong-arm tactics from the Americans – did not use “the”. Lord Caradon, our man at the UN, insisted on putting in the phrase about the “inadmissability of the acquisition of territory by war” in order to stop the Israelis claiming that they could cherry-pick which lands to return and which to hand on to. Britain accepted Jordan’s rule over the West Back – the PLO were still shunned as super-terrorists at the time – but it did no good. Abba Eban, Israel’s man on the East River, did his best to persuade Caradon to delete both “the” and the bit about the inadmissability of territory through war. He won the first battle, but not the second.

  16. talknic
    talknic
    May 14, 2016, 7:48 pm

    An extremely important factor in all of this is the little known or discussed fact that: the UN cannot directly censure non-members, nor can it directly censure members retrospectively for their actions prior to membership.

    A fact that must have been known by the legal teams (they weren’t stupid) for the Zionist Movement, Jewish Agency, Jewish People’s Council, Provisional Government and subsequent illegally elected Israeli Governments ( No Israeli Government has been elected under the required and promised constitution )

    Except in relation to its UN Membership pleas and acceptance, “Israel” is not named in any UN/UNSC resolutions condemning or censuring its actions prior to being accepted into the UN.

    There are no resolutions in regards to territories illegally acquired by war by Israel prior to membership. Never the less International Law including the Laws of War/ laws on occupation and Customary International Law were still applicable to all states recognized or not by the International Comity of Nations.

  17. dgfincham
    dgfincham
    May 15, 2016, 3:44 am

    @sibiriak @everyone

    You do not seem to have noticed my expectation of the context in which the border negotiations will take place. The first step is the end of the occupation and the recognition by Israel of the State of Palestine and the establishment of full diplomatic relations between the two States, and the admission of Palestine as a full Member State of the United Nations. The Green Line will be the de facto temporary border between the States, which is what it has always been. Then the two States can discuss, freely, as legal equals, their future relationship and the final status issues, including borders. The relationship will include at the very least an economic union: this is the only practicable way for it to work. The border will be an open border, crossing it will mean only passing a signboard, as in the EU. The line of the border is no big deal as far as everyday life is concerned.

    • Mooser
      Mooser
      May 15, 2016, 12:55 pm

      “The first step is the end of the occupation and the recognition by Israel of the State of Palestine and the establishment of full diplomatic relations between the two States, and the admission of Palestine as a full Member State of the United Nations.”

      Excellent! And that will be the end of Israel, and the problem will be solved, except for the clean-up.

      Israel without the occupation and all the rest has no reason to go on existing. And the prospect of reparations? Run!

      As I said, the most important thing about any solution is to allow Israel room to shrink and disappear when Zionism the fad is over.

  18. dgfincham
    dgfincham
    May 15, 2016, 9:53 am

    @hophmi you say:

    “I have no idea why Mondoweiss feels that a person with no training in international law, customary or otherwise, let alone standards of interpretations as they apply to UN resolutions and international treaties and conventions, or there International Court of Justice, should be given a platform here to give his layman’s opinion regarding 242”.

    Your desire to suppress my views is a clear indication that, somewhere in the depths of your mind, you know that I am right.

  19. Ossinev
    Ossinev
    May 15, 2016, 12:08 pm

    @hophmi
    “I have no idea why Mondoweiss feels that a person with no training in international law… should be given a platform here to give his layman’s opinion regarding 242.”

    OK then sunshine following your “non-platform” logic you should not be allowed to spout your views on 242 or any other international law issues relating to the I/P situation. Unless of course you have significant training in International Law ?

    So the latter presumably being the case I expect you will be tucking your hasbara manual away for a while and briefly retreating for a well earned spot of Zionic [email protected] before resurfacing perhaps under another pseudonym and a claim to have guess what.

  20. dgfincham
    dgfincham
    May 15, 2016, 6:16 pm

    @Dan, @MHughes976

    Palestine’s Declaration of Independence in 1988 did not define its borders, saying only that it was established “in the land of Palestine with its capital at Jerusalem”. It was recognized by many states on that basis.

    The draft constitution of 2003 did accept the 1967 borders, but it was not adopted.

    The 2011 application for full Membership of the UN did accept the 1967 borders, but that was not successful.

    But here is the bummer: when upgrading the status of Palestine to observer state, Palestine again accepted the 1967 borders and the GA did indeed “confirm its commitment, in accordance with international law, to the two State solution of an independent, sovereign, democratic, viable and contiguous State of Palestine living side by side with Israel in peace and security on the basis of the pre-1967 borders [i.e the 1949 Green Line]”.

    I see a problem with that: is there an international law that says that the State of Palestine must be viable, contiguous and based on the Green Line? If so, it is a very strange law, because the Green Line leaves Palestine with only the West Bank and Gaza, a long way from contiguity.

    The fact that Palestine has already defined its border according to the Green Line will make it more difficult to persuade Israel to enter into serious negotiations over the border issue. But border negotiations have always been envisaged in the Oslo peace process, and the outcome I expect from the Boundary Commission would leave the West Bank largely intact and create contiguity from territory in the Negev, and therefore be in conformity with the GA resolution.

    • Sibiriak
      Sibiriak
      May 15, 2016, 7:36 pm

      David Gerald Fincham: the Green Line leaves Palestine with only the West Bank and Gaza, a long way from contiguity.
      ————-

      To repeat from my comment above: as far as contiguity is concerned, Gaza and the West Bank can be connected by a corridor (various proposals have been made.)

      Are you familiar with those proposals?

      How to Connect the West Bank and Gaza Strip

      During the past negotiations, the parties agreed in principle to create a link between the West Bank and the Gaza Strip. (Bill Clinton referred to it as “permanent safe passage” in the 2000 Clinton Parameters.) According to discussions with those involved in previous negotiations, this territorial-transportational link will likely be a corridor consisting of newly-created infrastructure, 100 to 200 meters in width, and include a road, a railway, and means for running utilities such as pipes and cables.

      The Aix Group has offered proposals for routes and design of such a link. This RAND-sponsored report, titled The Arc, views the Gaza-West Bank link as part of a greater backbone of Palestinian contiguity and viability. (“Friends of the Arc,” a non-profit devoted to publicizing the project, offers more information and an impressive video.) This 2004 Palestinian memo lays out their thinking on the corridor at the time (notably, under the title “Decidable Issues for Borders.”)

      http://www.theatlantic.com/international/archive/2011/10/how-to-connect-the-west-bank-and-gaza-strip/247475/

      One proposal. Check out the graphics.

      The Rand Palestinian Initiative”

      A major part of RAND’s project is a landmark, award-winning proposal, produced in partnership with Suisman Urban Design, for a Palestinian national transportation and infrastructure corridor called the Arc. The Arc proposes a framework for connecting existing Palestinian urban centers, within and between the West Bank and Gaza, via inter-city rail, road, energy and telecommunications lines, and other infrastructure.

      The Arc also constitutes a parallel urban planning framework to accommodate, in economically and environmentally sustainable ways, the significant Palestinian population growth, including from immigration, that is likely in the coming decade and beyond.

      The Arc envisions the West Bank and Gaza as an integrated region of connected cities. One key feature of the Arc is an interurban rail line linking the main cities within the West Bank, and the West Bank and Gaza – including a stop at the international airport – in a journey of just over 90 minutes. Each major city would have a rail station on this main line, located several miles from the historic urban center.

      The second key feature of the Arc is a series of transit boulevards linking these new stations to the historic urban centers, via an advanced form of bus rapid transit, creating a focus for new economic and residential development along the length of each boulevard.

      Along each boulevard, new commercial and residential neighborhoods would be developed — largely by private-sector investment — to accommodate population growth. Housing and jobs would be created within walking distance of the transit system.

      New building design would incorporate sustainable systems using solar energy and recaptured water. Development along each boulevard would pump economic activity into the historic centers of Palestinian cities and assure their preservation and revitalization — an essential strategy for creating a much-needed tourism industry.

      Although the core of the Arc is interurban rail, the Arc design provides for many types of infrastructure. Construction of the transportation line invites concurrent, cost efficient, parallel construction of electricity, natural gas, telecommunications, and water connections.

      A national park following the line of the Arc would provide needed recreation space within each city, and a path for hiking and biking between urban areas. A toll road parallel to the rail line would provide access for vehicles, particularly trucking, linking all urban and rural areas to air and seaports.

      https://www.rand.org/content/dam/rand/pubs/corporate_pubs/2009/RAND_CP562.pdf
      ———————————-

      It’s all doable. Palestine can be built and made beautiful. There will be a lot of help. Only expansionist Israel and her enablers stand in the way.

      • dgfincham
        dgfincham
        May 16, 2016, 6:56 am

        It is a horrible hateful idea: apartheid in steel and concrete.

      • Sibiriak
        Sibiriak
        May 16, 2016, 7:28 am

        David Gerald Fincham: It is a horrible hateful idea: apartheid in steel and concrete.

        ————

        Your are sounding irrational. Building railways, rapid bus-lines, new roads, walkways, parks , along electrical, natural gas, telecommunications, and water connections, in order to link together Palestinian cities and towns within a sovereign Palestinian state–how is that apartheid? Please, explain. (Or is two states be definition for you “apartheid”?)

        In any case, get used to it. Palestine WILL develop economically–it’s going to happen– freely, democratically, imaginatively– roads, railways, infrastructure WILL be built–and yes, some steel and concrete may be used, believe it or not.

        (None of that would prevent myriad types of links to Israel, Jordan Egypt etc.)

  21. dgfincham
    dgfincham
    May 16, 2016, 8:34 am

    sibiriak: my profound apologies, I was overcome with emotion there. I withdraw the word hateful. But it is still a horrible idea.

    • Sibiriak
      Sibiriak
      May 16, 2016, 9:52 am

      David Gerald Fincham: But it is still a horrible idea.
      ———————-

      By all means, explain why, in detail. And please, consider the reality we are dealing with. You yourself wrote:

      The fact that Palestine has already defined its border according to the Green Line will make it more difficult to persuade Israel to enter into serious negotiations over the border issue [emphasis added]

      That, imo, is not only true– it is a gross understatement.

      The pre-1967 border (aka “Green Line”) – not UN res. 181 recommended “partition borders” — is the de jure provisional border between Israeli territory and occupied Palestinian territory.

      That’s the position taken by the UNGA, the UNSC, the International Court of Justice, the state of Palestine in its UN application, the 193 UN member states which have recognized Palestine , the PLO, the Arab League, the BDS movement, etc.

      There will be little if any pressure put on Israel to make concessions beyond those required by the international consensus.

      The international community will only back tough, painful sanctions that attempt to enforce the international “Green Line” consensus. BDS calls for the end of Israeli occupations of lands acquired in 1967 , i.e. BDS adopts the legal consensus that the “Green Line” divides Israel territory for Occupied Palestinian Territory.

      I agree there is no legal impediment to Palestine requesting/demanding more territory –but in previous negotiations (2000, 2008) the Palestinian leadership has already accepted the principle that Gaza and the West Bank be connected via a corridor (or tunnel).

      All those facts suggest that proposals to connect Gaza with the West Bank must be carefully considered–not rejected out of hand, as you seem to be doing.

      What I’m sensing on your part is an extreme–and completely understandable–moral revulsion to the idea of Palestine getting only 22% of mandatory Palestine, and that that moral revulsion is compelling you to reach out for legal, political and practical arguments to bolster the case that Palestine not only should have more territory, but that it must have more territory if it is to be a viable state.

      Your moral position is unassailable, imo, but I don’t find the “viability” argument at all compelling as you have presented it. You have presented no empirical evidence that 22% precludes a “viable” state–you haven’t even defined what “viability” means– nor have you given any reasons why some sort of corridor between Gaza and the West Bank could not work, and you have dismissed the detailed proposals I linked with nothing more than epithets. That’s hardly persuasive.

      • dgfincham
        dgfincham
        May 17, 2016, 1:14 pm

        The two states have to work together to find practical ways in which they can live together as friendly neighbors to the benefit of both peoples. The Boundary Commission is at the heart of this process. Any solution must be acceptable to both peoples, or there will not be peace. Can you see the Palestinian people accepting 22% of their original homeland? I very much doubt it. In fact they have already rejected it when they voted for Hamas.

      • Mooser
        Mooser
        May 17, 2016, 5:42 pm

        “The two states have to work together to find practical ways in which they can live together as friendly neighbors to the benefit of both peoples.”

        Now, that’s just silly. Zionism precludes that possibility. Peace and stability would be fatal to Zionism.

        And remember, Israel has a very, very attractive option which many peoples don’t have, they can give up on the project and go away if the returns are insufficient. It would be wrong to suggest anything which might interfere with that.

      • Sibiriak
        Sibiriak
        May 18, 2016, 10:16 am

        David Gerald Fincham: Can you see the Palestinian people accepting 22% of their original homeland?
        ————————————

        Yes. The Palestinian leadership already has. See Dan’s and others’ comments above.

        Do you think if Israel was forced by BDS etc–as difficult as that will be–. into ending the occupation, the Palestinian people, faced with that huge, almost unimaginable political victory, would then turn around and 1)reject a settlement based on 1967 lines?? And if they did that, 2) would they be able to thwart the will of the virtually the entire international community that supports the Green Line consensus?

        In fact they have already rejected it when they voted for Hamas.

        Hamas officials as well have publicly declared acceptance of pre-1967 borders, though they have apparently rejected land swaps.

        “The whole world knows what Hamas thinks and what our principles are,” Mr. Meshal said in an interview in his Cairo hotel suite. “But we are talking now about a common national agenda. The world should deal with what we are working toward now, the national political program.”

        He defined that as “ a Palestinian state in the 1967 lines with Jerusalem as its capital, without any settlements or settlers, not an inch of land swaps and respecting the right of return” of Palestinian refugees to Israel itself. [emphasis added]

        http://www.nytimes.com/2011/05/06/world/middleeast/06palestinians.html?_r=2&emc=eta1

        ——————–

        Ghazi Hamad: Hamas Agrees to Accept State Within ’67 Borders

        http://www.al-monitor.com/pulse/originals/2013/04/razi-hammed-palestinian-state-67-borders.html#ixzz4916dgzI9

  22. dgfincham
    dgfincham
    May 16, 2016, 4:41 pm

    @sibiriak, in reply to yours of May 15, 2016, 8:30 pm.

    The 1949 Green Line is an Armistice Line, a line agreed between the parties which allows them continued control of the territory on their side of the line on a temporary basis until the conflict is resolved in a peace treaty which will specify the agreed border between the two sides. The Armistice agreements make clear that the line is made without prejudice to a final settlement.

    The PLO has said that, in the interests of peace, it will concede to Israel to territory it captured in 1948-49 and make the Green Line the basis of the border discussions. That does not mean the Green Line IS the border now; it will become the border when there is a peace treaty.

    The ICJ judgment on the Wall concluded that the Wall was built illegally under Geneva IV. Israel could of course build a wall on its side of the Green Line, because it was given control of that territory through the Armistice agreements. This does not mean that the Green Line was already recognized as the permanent border, as one of the judges clarifies in his comment attached to the judgement, which I quote.

    I am sorry I have to leave the conversation now. I hope to present another article in a few weeks time about the ideas of a confederation or union between the two states, which will no doubt touch upon the border question. I hope we can meet again to discuss that.

    David

    • Sibiriak
      Sibiriak
      May 16, 2016, 5:12 pm

      David Gerald Fincham: That does not mean the Green Line IS the border now;
      ———————

      The Green Line is an internationally recognized provisional border, dividing Israeli territory from Palestinian territory. It is provisional only in the sense that it can be modified in a final agreement. Otherwise it has all the legal characteristics of a permanent border.

      Most importantly, if there is no final agreement–and there never may be one!–the Green Line remains the legal border.

      I will shortly post a number of detailed comments in this thread to support that contention.

      I will rely heavily on the analysis of well-known Mondoweiss commenter, Hostage.

      Over years, he posted dozens of comments on this issue– precisely to refute your notion of the Green Line–which shares the basic approach of the post-1967 Zionist legal analysis.

  23. talknic
    talknic
    May 17, 2016, 12:02 pm

    The Palestinians have put forward a set of borders which have been recognized by a majority of the International Comity of Nations.

    However, Israel has not recognized Palestine, has not agreed to those borders, has not proclaimed those borders, nor has it legally annexed any territories it has occupied or acquired by war.

    The only Internationally recognized borders of Israel are those of the May 15th 1948 Israeli Government plea for recognition.

  24. Sibiriak
    Sibiriak
    May 17, 2016, 1:32 pm

    DGF: Some of you seem to believe that there is a mysterious “legal consensus” that forbids the states from agreeing a border that involves a transfer of a substantial amount of territory [emphasis added]
    —————-

    That’s never been my view. In fact, I just wrote above: “there is no legal impediment to Palestine requesting/demanding more territory.”

    do not make a big effort on my account,

    Of course, not for you personally–for anyone who is reading this thread, now or in the future.

  25. talknic
    talknic
    May 17, 2016, 9:23 pm

    @ David Gerald Fincham May 17, 2016, 12:59 pm

    “I showed, by considering carefully the words of Resolution 242, that it does not specify that the permanent borders of Israel with the combatant states Egypt, Syria and Jordan must be based on the 1949 Green Line”

    The borders of “every State in the area” were “recognized” prior to the 1948 Green (ceasefire) Line being incorporated into the 1949 Armistice Agreements. When we read the Egypt Israel Peace treaty, borders are not negotiated, the timing and methodology of Israeli withdrawal is http://wp.me/pDB7k-ZZ

    ” The area inside the Green Line in 1967 included some of the sovereign territory of Egypt (Sinai), Syria (Golan) and even some of the sovereign territory of Jordan, since a part of the Green Line was on the east bank of the river”

    The Green Line was a cease fire line drawn and agreed upon in 1948. It didn’t suddenly change in 1967. It didn’t encompass any territory of Lebanon, Syria, Jordan or Egypt that I’m aware of.

    Here http://wp.me/pDB7k-l5#coveting-land … we see the 31st August 1949 Israeli claim to non-Israeli territories not belonging to any nearby nations

    “If the boundary commission making recommendations about the line of the border determines that “facts on the ground” make it impractical to make large changes within the territory between the partition line and the Green Line, then it could consider giving Palestine territorial compensation from within Israel’s sovereign borders, which in practice would involve mostly territory in the Negev.”

    There are no actual impractical or valid legal, moral, ethical or logical impediments. Illegal Israeli settlers who don’t want to become Palestinian citizens can leave, go live in Israel.

  26. Sibiriak
    Sibiriak
    May 18, 2016, 10:36 am

    David Gerald Fincham : @sibiriak in particular I showed, by considering carefully the words of Resolution 242, that it does not specify that the permanent borders of Israel with the combatant states Egypt, Syria and Jordan must be based on the 1949 Green Line.
    ————————-

    It’s has never been my contention that res.242 specifies that permanent borders must be based on the Green Line.

    Frankly, that’s a straw man.

    The international consensus expressed in various resolutions and statements is that the Green Line is be the basis for negotiations for a final agreement. In those negotiations, anything is theorectically possible. Different boundaries, land swaps etc.

    But the issue you are not addressing is this: there is no legal imperative for negotiations or for a final agreement. There may never be a final agreement. Or it may come far, far in the future.

    In the meantime, until such a final agreement is reached, if it ever is, the Green Line is the legal, internationally recognized border dividing Israeli territory from Palestinian territory. The ICJ made that fact crystal clear. Israel has full sovereign power within the Green Line; outside the Green Line it is a belligerent Occupying Power. That is a legal distinction, not simply a de facto one. Israeli settlement and the extension of Israeli civil law anywhere within the Green Line is completely legal; Israeli settlement and the extension of Israeli civil law outside the Green Line, in the West Bank, is completely illegal.

    In the absence of a final agreement, the Green Line retains all its full legal significance.

    If the Green Line was not a legal boundary, how could the ICJ possible hold that the Wall was being built, not on “disputed territory” but unquestionably on Palestinian territory ?

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