Saturday, 12 May 2018

Iran - Israel

"Israel occupied most of the Syrian Golan Heights in the 1967 Middle East war and later annexed it in a move not recognised internationally," says a BBC news report about the recent spat between Israel and Iran in Syria. Now the words 'not recognised internationally' are weasel words - they do not mean not recognised in international law. The word 'occupied' is also a very loaded word.

I was having a chat with a friend on precisely this subject and what follows is a history from the perspective of international law - it is not a moral judgement. I transcribed it from a presentation I saw by a professor of international law and shortened it:

In 1919, following the Treaty of Versailles, what is now Israel, the West Bank, the Golan Heights, Gaza and the entire area of Jordan were designated as a homeland for the Jews after the breakup of the Ottoman Empire - this was the British Mandate. This was one of many Mandates that broke up Empires that were on the losing side, including the Austro-Hungarian Empire – in all 26 Mandates.

Article 25 of the Mandate says that if there are not enough Jews to create a country, Britain could cut part of it off, which they did - Jordan and Transjordan, the greater part of the Mandate. This was done immediately and the Hashemite Kingdom of Jordan was created as a consequence. The League of Nations said the British could not create separate countries within their Mandate, but they could suspend the Mandate, which suggest a temporary solution.

From 1925 the Jews were left with what is now Israel, the Golan Heights, the West Bank and Gaza (see map above), with the aim of creating a Jewish homeland. After WWII, the newly created General Assembly of the UN sent fact finders to the area in 1947 to propose a solution – the GA Partition Proposal. They recommended cutting what was left of Israel into 6, giving the West Bank (plus some), Gaza (plus a bit), Jaffa and the Golan heights to the Arabs with Jerusalem, which was deep in Arab territory, as an international city policed by the Canadians, and the rest, which were 3 pieces that barely touched, to the Jews. However, fighting kicked off before the Canadians could arrive.

Legally, the GA Partition Proposal has no standing in international law, as:
  • it was a General Assembly proposal and thus only an opinion and not legally binding, and 
  • there’s an article in the UN charter that forbids the UN changing people’s rights under a Mandate. 
Jewish leaders, however, accepted the GA Partition Proposal – the Arab leaders said no. Had the Arabs said yes, then it would have become binding international law, as international law is created by the agreement of countries - a treaty. It is said that Israel was recognised in 1947 by the GA Partition Proposal, but Israel was already recognised legally by the League of Nations Mandate. Far from recognising Israel, the GA Partition Proposal was chipping away at the Mandate.

Note that there was a British proposal in 1937 which gave the Jews a thin sliver of territory in the north of what is now Israel, which the Jews accepted, but to which the Arabs said no.

Five Arab armies (some led by British officers) invaded Israel in 1949 but, in a miraculous turn of events, Israel won the war, having lost some territory, and armistice lines were drawn, roughly approximating to the Israel of today and brought into existence The Green Line, which was the point to which the Jews had pushed the Arabs back from Israeli territory as mandated by the League of Nations.

The Green Line did not exist as a demographic, historical or topographical boundary – is was an armistice line, which is why it goes through a city. An armistice agreement is not a border agreement or a peace agreement, it’s a line at which hostilities ceased by mutual agreement. The very document that crated those lines – the Israel-Jordan Armistice Agreement states that they are not political or territorial boundaries and should not be regarded as an ultimate settlement of the Palestinian Question. To this day it is referred to as a de facto border, which means that it exist in pragmatic reality, even if not legally recognised by official laws.

From 1949 to 1967, these ‘disputed areas’ were under Arab occupation – Egypt and Jordan, respectively. No resolutions have come from the UN condemning this occupation – in the case of Jordan, an annexation rather than an occupation. Only two countries in the world, and certainly not on the basis of international law, recognised Jordan’s claim to the West Bank – Britain and Pakistan. To say that Israel’s rights are limited or suspended within the Green Line, retroactively legitimises the Arab occupation of 1949. In 1949, no-one thought Jordan was entitled to take the West Bank.

In 1967, Israel goes to war again when Egypt tries to close off shipping to Israel and makes fantastic territorial gains by taking Gaza and the entire Sinai Peninsula, as well as the Golan Heights and the entire West Bank - a lot for 6 days. Israel’s claim to Sinai and the Golan Heights are now different, and weaker, than its claims to Gaza and the West Bank, as they are based on conquest and not included in the Mandate. The West Bank and Gaza, however, were that part of the British Mandate legally reserved for a Jewish homeland and therefore Israel had a very good claim to those territories in International Law.

As said previously. those territories either belonged to no-one, or they belonged to Israel and Israel was taking them back – there are no other possibilities in International Law. The Sinai was indisputably Egyptian territory. However, that’s not to say Israel was without a basis in International Law to hold on to Sinai and the Golan Heights, notably ‘defensive conquest’. In International Law you are forbidden to acquire territory by aggressive conquest (unless, inexplicably, you are Arabs trying to conquer the West Bank and Gaza, China conquering Tibet, North Vietnam conquering South Vietnam or Russia conquering whatever country takes its fancy). It is forbidden by the UN Charter – which is why Saddam Hussein was kicked out of Kuwait.

Article 52 of the UN Charter has one exception to the above; self defence. So a defensive war is legal. The 1967 War was almost universally regarded as a defensive war against Arab aggression. The fact the Arabs were almost wiped out was a highly unexpected outcome. If the conquest of territory is gained legally – i.e. through defence – then the law against holding on to conquered territory should not apply. However, ask any international lawyer as to whether defensively conquered territory is held legally, they would say no, because aggressors could claim self-defence to mask aggression (Russia is a prime proponent of that tactic). However, if you can’t tell self-defence from aggression, then a mockery is made of the whole UN peace system, it is incoherent and the Charter has some basic problems. While Israel’s claim to Golan is weaker, it’s less controversial.

Now, Israel was bolstered by the USA while the Arabs were supported by Russia and to prevent a superpower stand-off, the UN Security Council came up with Resolution 242, which stated: Preamble: “…Emphasising the inadmissibility of the acquisition of territory by war... Calls for i) the withdrawal of Israel armed forces from territories occupied in the recent conflict; ii)Termination of all claims or states of belligerency and respect for 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 recognised boundaries free from threats of acts of force….”

As a UN Security Council Resolution, having the force of International Law, this becomes the basis for all future documents. The words; “from territories,” rather than; “all of the territories,” was a diplomatic fudge to prevent the UN looking stupid if Israel refused to give up, for example, the Temple, which it was bound to do. Remember this was before countries regularly ignored UN Security Council Resolutions. However, Israel eventually withdrew from 99% of the territory captured, that’s to say, Sinai, Gaza (fully in 2005) and much of the West Bank, despite having a valid legal claim in International Law. There is no other case anywhere where a defensive conquest has been called illegal. Sinai and Gaza were part of the Egypt / Israel Peace Treaty and therefore had validity in international law.

It cannot therefore be said that the 'occupied territories' of today are occupied by Israel - they are either Israeli (as per the split Mandate that created Jordan) or disputed and there is no other interpretation in international law. They are certainly not Syrian or Jordanian. It was the Arab armies that occupied what was Israeli land in 1949.

To summarise:

  • 1919 Treaty of Versailles – British Mandate – international law – League of Nations – whole area (which included what is now Jordan) allocated as Jewish homeland. 
  • 1925 Britain partitions its Mandate and creates Jordan and Trans-Jordan, in line with conditions of Mandate. Jews were left with what is now Israel, the Golan Heights, the West Bank and Gaza. 
  • 1937 British offer Jews a sliver of land in the north of what is now Israel – Jews say yes, Arabs say no.
  • 1947 General Assembly suggests GA Partition Proposal – no force in international law – Jews say yes, Arabs say no. 
  • 1949 Arab armies invade Israel – Israel pushes back – Green Line armistice line comes into existence - no validity in international law as it was a cease-fire line. 
  • 1967 war breaks out again – Israel takes Golan, Gaza and Sinai.
  • 1967 UN Security Council Resolution 242 – international law - Israel to withdraw 'from territories’ and complies with Sinai, Gaza and much of West Bank, although Gaza took till 2005 and was under the Egypt / Israel Peace Treaty, again international law.

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