Why Israel Must Now Move from Concessions-Based Diplomacy to Rights-Based Diplomacy

, July 1, 2007

No. 554   June-July 2007

  • Israel faces a painful paradox. Its generous territorial concessions climaxing in the 2005 Gaza withdrawal have not resulted in greater international support or sympathy, but rather a further deterioration in its international standing. Indeed, the very legitimacy of the Jewish state continues to be questioned in international circles including the West.

  • Israel unilaterally withdrew its forces from southern Lebanon and the Gaza Strip expecting both peace and broad international understanding in the event that these areas would be used to attack Israel in the future. However, the condemnations of Israel only seem to be worsening. On May 15, 2007, Amnesty International condemned Israel for “war crimes” in its previous summer’s defensive war against Hizbullah. Britain’s University and College Union (UCU), the largest academic organization in the United Kingdom, accused Israel of crimes against humanity and apartheid.

  • Ironically, mounting criticism of Israel has occurred as Israeli civilians have come under repeated attack from Kassam rockets launched from the post-withdrawal Gaza Strip. The concern in Israel over ever-sharpening anti-Israel sentiment even brought the liberal daily Ha’aretz to conclude in its lead editorial of May 27, 2007, that “Britain has become the battlefield in Israel’s fight for existence as a Jewish state, and . . . the anti-Zionist winds blowing in Europe strengthen the position [there] that the birth of the Jewish state was a mistake.”

  • For most of the period from 1993 to 2000, Israel’s overall diplomatic strategy focused on helping the Palestinians achieve their demands for what Arafat and Palestinian spokesmen had always termed their “legitimate rights,” hoping this would result in peace and security for Israelis. Once Israel dropped its past reliance on a diplomacy based on its own rights and adopted a new concessions-based diplomacy instead, its spokesmen essentially acquiesced to the Palestinian historical narrative. The Israelis offered no alternative perspective.

 

The violent takeover of the Gaza Strip by Iranian-backed Hamas and the group’s ongoing Kassam-rocket assaults against southern Israel present a painful paradox for the Jewish state. Israel’s generous territorial concessions climaxing in the 2005 Gaza withdrawal have not resulted in either greater security for Israelis or international sympathy for Israel. In fact, the opposite appears to be true. While Israel continues to absorb attacks from Hamas in Gaza and braces for another possible confrontation with Hizbullah in southern Lebanon and possibly with Syria, the very legitimacy of the Jewish state continues to be questioned in international circles including the West.

In May 2007, Britain’s largest academic union voted to initiate a boycott against all cooperation with Israeli academic institutions. South Africa’s largest trade union also called for a full trade boycott and a break in diplomatic relations.1 The widespread delegitimization of the Jewish state, particularly following fifteen years of Israeli territorial concessions, suggests that Israel should fundamentally reassess its diplomatic strategy.

Government leaders and diplomats would be advised to adopt a more aggressive diplomatic stance based on Israel’s longstanding international legal and historical rights to a sovereign state in its own homeland with a united Jerusalem as its capital.2 Moreover, in 2007, some eighty-five years after the League of Nations established the right of the Jewish people to reconstitute their Jewish homeland throughout the territory west of the Jordan River, fifty-nine years after the founding of the State of Israel established its incontrovertible right to defend against encroachments on its sovereignty, and forty years after UN Security Council Resolution 242 affirmed Israel’s legal rights to secure borders, the State of Israel should reassert its sovereign rights to secure boundaries in the West Bank opposite Palestinian demands for a state in Gaza, the entire West Bank, and Jerusalem.

Generous Israeli concessions have, if inadvertently, reinforced the charges by some that Israel not only lacks legal rights to the disputed territories of Gaza and the West Bank, but that Israel’s very legitimacy is inextricably linked to further territorial concessions. Therefore, Israel should now recalibrate the moral force of its rightful claims that today have been all but lost to the Palestinians in the international court of public opinion.

The Failure of the “Concessions-Based Paradigm”

The tepid international response to continuing, Iranian-backed, Hamas and Palestinian Islamic Jihad rocket attacks on southern Israel points to an uncomfortable conclusion. Israel’s far-reaching diplomatic concessions to its Arab and Palestinian neighbors – full withdrawal from the Gaza Strip in 2005, the offer of nearly 95 percent of the West Bank at Camp David in 2000, continuous territorial withdrawals during the Oslo process from 1993 to 2000, and the IDF’s unilateral withdrawal from southern Lebanon in May 2000 – have failed to generate security for Israelis, diplomatic progress with Palestinian and Arab neighbors, or greater international support for Israel’s diplomatic positions.

Following the Hamas takeover of Gaza in June 2007, Prime Minister Ehud Olmert offered Palestinian Chairman Mahmoud Abbas various concessions including at least $600 million in withheld tax revenues.3 Several months earlier, Olmert accepted the Saudi-inspired Arab League peace plan as a basis for negotiation despite its non-negotiable demand of full Israeli withdrawal to the 1949 armistice lines and the return of Palestinian refugees to Israel. These were two red lines that had prevented former Prime Minister Ariel Sharon from discussing the plan when it was first proposed in 2002.

Transportation Minister Shaul Mofaz confirmed on June 9, 2007, that Olmert had passed secret messages to Syrian President Bashar Assad via a third party offering Syria a full Israeli withdrawal from the Golan Heights in exchange for a peace agreement.4 Olmert was quoted by an adviser as saying in a closed-door meeting that,”My duty as prime minister is to examine [the negotiations option] even if intelligence evaluations say it’s a deception and even when Western and other leaders warn me.”5

Unfortunately, recent experience shows that Israeli diplomatic gestures and territorial generosity have backfired. Since Israel’s unilateral Gaza withdrawal and particularly following last summer’s war with Hizbullah in Lebanon, Palestinian rocket attacks from Gaza have increased exponentially6 despite Sharon’s statement on the eve of the 2005 pullout that removing the IDF was intended to “reduce terror as much as possible, and grant Israeli citizens the maximum level of security.”7 Similarly, Israel’s unilateral withdrawal from southern Lebanon in May 2000 failed to end hostilities with Iranian proxy Hizbullah. Instead, it fueled war preparations that resulted in Hizbullah firing more than 4,200 rockets that paralyzed Israel’s northern cities during the Second Lebanon War.8

Israeli land concessions and IDF pullbacks in Gaza and the West Bank following the 1993 Oslo accords resulted in scores of Palestinian suicide bombings in Israeli cities during the 1990s. Yasser Arafat’s rejection of Israel’s unprecedented territorial offers at Camp David in 2000 resulted in a similarly unprecedented terror campaign known as  the Second Palestinian Intifada. Israel suffered no fewer than 26,000 terror attacks, nearly 1,100 Israeli civilians killed, and more than 6,000 wounded from 2000 to 2005.9

The Global Diplomatic Intifada against Israel’s Legitimacy

Israel’s policy of generous territorial compromise not only failed to improve its security but also did nothing to alleviate – and may well have contributed to – the growing delegitimization of Israel in the West. For example, every year Israel was hammered in the UN General Assembly with the adoption of about twenty anti-Israel resolutions that undermined Israel’s most fundamental diplomatic claims. It was expected that with the signing of the Declaration of Principles (DOP), the first of the Oslo agreements on September 13, 1993, Israel’s international standing would vastly improve and the anti-Israel campaigns in the General Assembly would finally come to an end. Yet exactly three months and one day after the DOP was signed, the General Assembly resumed its ritual adoption of a slew of anti-Israel resolutions. The unprecedented concessions Israel offered in the DOP did nothing to affect UN voting patterns against the Jewish state.10

More recently, on May 15, 2007, Amnesty International condemned Israel for “war crimes” in its previous summer’s defensive war against Hizbullah. Amnesty’s latest annual report essentially equated Israel’s defensive actions with Hizbullah’s unprovoked attacks.11 On May 30, 2007, Britain’s University and College Union (UCU), the largest academic organization in the United Kingdom, accused Israel of crimes against humanity and apartheid, and voted to consider boycotting all academic cooperation with Israeli academic bodies. The UCU also called for full European cooperation in the boycott.12 The British Union of Architects and Civil Service Union have since called to boycott Israel, while Britain’s National Union of Journalists’ embargo remains in effect.

On May 30, 2007, South Africa’s largest trade union also demanded a full government boycott of Israeli products and a cessation of Pretoria’s diplomatic relations with Jerusalem.13 The president of the Congress of South African Trade Unions, Willy Madisha, called for the diplomatic and trade embargo in response to “Israel’s apartheid policies, occupation of Arab land, violation of UN resolutions, and its policy of targeting Hamas leaders.”14

The concern in Israel over ever-sharpening anti-Israel sentiment even brought the liberal daily Ha’aretz to conclude in its lead editorial of May 27, 2007, that “Britain has become the battlefield in Israel’s fight for existence as a Jewish state, and . . . the anti-Zionist winds blowing in Europe strengthen the position [there] that the birth of the Jewish state was a mistake.”15

Israel’s legitimacy problem is not limited to Europe. Former U.S. President Jimmy Carter accused Israel of “even worse instances of apartheid than we witnessed in South Africa” in his 2006 book Palestine: Peace Not Apartheid.16 It may not have been a coincidence that Carter wrote a book about the State of Israel and entitled it Palestine. He may well have wanted to downplay Israel and instead reenergize the importance of the British Mandate of Palestine that preceded it, or perhaps to reassign Israel’s international legitimacy as a state to the Palestinian Authority.17

Britain may be for the moment the epicenter of European anti-Israel indictment. However, demonization of Israel has swelled in Western circles for the past seven years since the failed Camp David peace summit in 2000 and the Palestinian Authority’s ensuing war of terror against Israeli cities. The unprecedented concessions former Prime Minister Ehud Barak offered PA leader Yasser Arafat – Gaza, nearly the entire West Bank, and most of Jerusalem’s historic Old City – did little to upgrade Israel’s diplomatic profile abroad. Indeed, in 2002, Nobel laureate Jose Saramago compared Israel’s policies toward the Palestinians to those of Nazi Germany.18

In 2003, American historian Tony Judt called Israel “anachronistic” and recommended its replacement with a binational state instead.19 Shortly before Israel’s Gaza withdrawal in September 2005, London Mayor Ken Livingstone labeled Prime Minister Sharon a “terrorist” and “war criminal” and accused Israel of “ethnic cleansing.”20 A 2005 German poll undertaken by the University of Bielefeld revealed that 68 percent of those surveyed believed that Israel was waging a “war of extermination” against the Palestinian people.21

Former Canadian Justice Minister Irwin Cotler noted that Israel had been cast as the “Antichrist” and “the world’s meta-human rights violator” at the 2001 UN-sponsored World Conference against Racism in Durban, South Africa.22 It seems clear, therefore, as Prof. Alvin Rosenfeld has pointed out, that the argument advanced by Israel’s harshest critics is no longer about its 1967 “occupation” of the West Bank and Gaza but about 1948 and the alleged “crime” or “original sin” of its very founding.23

Why Did Israeli Diplomatic Concessions Boomerang in International Circles?

Paradoxically, Israel’s readiness to part with territories for peace mirrors the perception of many in the West, particularly in Europe, that the Jewish state is an international outlaw that is merely giving back lands over which it has no claims to the Palestinians, who are seen by many as the sole and rightful displaced owners of “Palestine” on both sides of the 1967 Green Line. Moreover, Israel has inadvertently positioned itself as the only member of the international state system whose very legitimacy is perceived as being justified only as a function of its readiness to make additional territorial concessions to the Palestinian Authority.24

But even today this concessions-based strategy is patently counterproductive. As already demonstrated, it did not help improve Israel’s international status and today it continues to undermine Israel’s position. With the best of intentions, Foreign Minister Tzipi Livni published an op-ed in the London-based Arabic daily Al-Sharq Al-Awsat on June 18, 2007, that detailed her support for the creation of a Palestinian state as well as Israel’s readiness “to take painful steps to advance this goal.” She explained that this would require “additional territorial withdrawal.”25 To her credit, Livni reminded readers that UN Security Council Resolution 242 did not require a full Israeli withdrawal, but this single reference was overshadowed by her effort to reach out to the Palestinian narrative.

A sample of the talkbacks to her article in Arabic showed no appreciation for the depth of the concessions she offered. One reader said Israel must admit to the crime of stealing a land from a people. Another demanded a full “right of return” for the Palestinians. A third talkback preferred to focus on Deir Yassin and Muhammad Dura. Perhaps Livni’s offer of concessions, without sufficient corresponding reference to Israeli rights, only reinforced in the minds of Arab readers that their embrace of the Palestinian narrative had been right all along, causing more rage despite Livni’s conciliatory tone.

Another sharp illustration of the limits of concessions-based diplomacy was revealed in the June 6, 2007, “dueling” op-eds by Prime Minister Olmert and Palestinian Prime Minister Ismail Haniyeh that appeared in an issue of The Guardian commemorating the fortieth anniversary of the 1967 war. In his article, Olmert neglected to mention Israel’s territorial rights and claims opposite the Palestinians. He also did not deny Palestinian rights and claims. Instead, Olmert lamented the negative Palestinian response to Israel’s ongoing concessions.

He wrote, “Nearly two years ago, Israel withdrew its troops and civilians from Gaza, with no preconditions. Last year my Kadima party came to power on an agenda promising further withdrawals. In the face of concessions that have threatened our own domestic consensus, the constant refrain has been the Palestinian refusal to end its violent attacks on our citizens.”26 Nevertheless, Olmert capped his article by reiterating that “Israel is prepared to make painful concessions to pay the price for a lasting and just peace that will allow the people of the Middle East to live in dignity and security.”27

In contrast, Haniyeh’s article delegitimized Israel and reasserted Palestinian claims, averring that in 1967 Israel “seized all that remained of Palestine and completed the process of ethnic cleansing that started in 1948.” Haniyeh continued, “In reality, it is Israel, through the prosecution of colonial war, that has threatened the Palestinians’ right to live in their land…. My people will not repeat the mistakes of 1948. They will remain rooted in their land, whatever the price, and pursue their legitimate right to resist the occupation.”28

The negative result of this type of Israeli diplomacy is twofold. First, by neglecting to make an affirmative case for Israeli rights while Palestinians press for their rights, Israel has created a world stage in which the only affirmative case ever made is in opposition to Israel, and Israel’s diplomats are always on the defensive. Second, by emphasizing that Israeli concessions are the key to peace, Israel creates and reinforces the impression that the demonstrable lack of peace is Israel’s fault and can be rectified only by further Israeli concessions.

Over the past two decades, the Palestinians have succeeded in popularizing the narrative that they were the indigenous population of British Mandatory Palestine and that the Jews arrived later as part of a colonial-settler enterprise supported by European imperialism. It was to promote this version of history that Arafat and much of his Fatah leadership went so far, at Camp David in 2000, as to deny that the biblical Temple of Solomon was ever erected in Jerusalem. Palestinian historical revisionism denies the overwhelming archeological evidence of ancient Jewish life in Jerusalem. No less important is the more recent fact that a Jewish majority in Jerusalem already existed in 1863 – well before the arrival of the British Empire and the era of European military supremacy in the Middle East.29 Indeed, waves of Jewish immigrants came to Palestine in the mid-twentieth century in defiance of British policy. But Israel rarely makes such counterarguments to the Palestinian political narrative.

Neglecting to Reassert Israel’s Rights in Gaza before Disengagement

That Israel was ill-equipped to defend its own legal rights became abundantly clear during its unilateral withdrawal from the Gaza Strip in 2005. At that time, Israel evacuated both its military and civilian presence from the area without first establishing a moral symmetry of claims opposite the Palestinians. Jewish residents had lived in Gaza for centuries, and their legal right to do so under modern international law had been established for four generations. Israel could have asserted its territorial rights under the League of Nations Mandate, a legally binding treaty that even the International Court of Justice has acknowledged constitutes a legal and continuing sacred trust.30 Moreover, the foundational document of the Arab-Israeli peace process for the past forty years – UN Security Council Resolution 242 of November 1967 – reinforces Israel’s right to continue to hold disputed territories pending a satisfactory agreement ensuring Israel’s secure borders. Even Egypt, whose nineteen-year military occupation of Gaza came to an end in 1967, agreed to peace with Israel in 1978 without any assertion of Egyptian claims or any limitations on Israel’s rights to Gaza. Moreover, the 1993 Oslo accords with the PLO did not prejudice Israel’s legal rights to settlement in Gaza, notwithstanding any future political compromise.

True, Sharon did receive a presidential-letter commitment from President George W. Bush on April 14, 2004, affirming Israel’s rights to defensible borders in the West Bank as a quid pro quo for leaving Gaza.31 However, even Bush’s written commitment to Sharon did not compensate for Israel’s failure to emphasize to the international community that Israel was leaving territories over which it had legal claims.32

The resulting European reaction could have been foreseen. Israel’s concession of Gaza has been minimized internationally as organizations such as the United Nations and Amnesty International continue to refer to the post-withdrawal Gaza Strip as “occupied territory.”33 At the same time, Israel’s unilateral pullout has been commonly viewed in international circles as demonstrating the need for yet further Israeli concessions. EU foreign policy chief and then-Spanish Foreign Minister Javier Solana warned in 2004 that the European Union would not support the Gaza disengagement if it did not lead to a full Israeli pullout from the West Bank. Solana called that scenario “nightmarish.”34

Europe’s expectation of future Israeli withdrawals reflects the degree to which Israel’s unconditional unilateral pullout in Gaza would undermine its territorial rights in the West Bank. This was the central reason that Israel’s former Deputy Chief of Staff and National Security Council Head Maj.-Gen. Uzi Dayan had publicly opposed full withdrawal from Gaza. He noted on June 4, 2007, that Gaza established an “immoral and dangerous diplomatic precedent for the West Bank.”35

Oslo’s Shift Away from Rights-Based Diplomacy

Much of Israel’s current diplomatic posture was established with the 1993 Oslo accords. The Oslo process represented a diplomatic paradigm shift for Israel away from “rights-based” diplomacy to “concession-driven” diplomacy.36 The White House signing ceremony in September 1993 was illustrative. Prime Minister Yitzhak Rabin deemphasized Israel’s territorial rights and instead focused on its desire to end its violent conflict with the Palestinians, declaring, “Enough of blood and tears. We have come to try and put an end to the hostilities, so that our children, our children’s children, will no longer experience the painful cost of war, violence and terror.”37 His words were poetic and well-meaning, but they lacked any reference to Israel’s historical rights and claims.

True, at the 1995 Knesset vote to approve the Oslo II agreement, Rabin did insist on Israel’s territorial rights in vital areas for its future survival including the Jordan Valley, other strategic parts of the West Bank, and a united Jerusalem.38 But for most of the period from 1993 to 2000, Israel’s overall diplomatic strategy focused on helping the Palestinians achieve their demands for what Arafat and Palestinian spokesmen had always termed their “legitimate rights,” hoping this would result in peace and security for Israelis. Though well-intentioned, this approach undercut Israel’s longstanding diplomatic policy of asserting both Jewish historical rights to Israel and unconditional demands for security.

David Ben-Gurion, Israel’s first prime minister, had as a rule infused major public addresses with historical references. He asserted to the 1937 British Peel Commission, “I say on behalf of the Jews that the Bible is our mandate, the Bible that was written by us, in our language, in Hebrew, in this very country.”39 He reminded the Knesset in 1949: “Our ties today with Jerusalem are no less deep than those which existed in the days of Nebuchadnezzar and Titus Flavius…our fighting youth knew how to sacrifice itself for our holy capital no less than did our forefathers in the days of the First and Second Temples.”40 A year later Abba Eban would emphasize this theme at the UN Trusteeship Council: “A devotion to the Holy City has been a constant theme of our people for three thousand years.”41

At the 1991 Madrid Peace Conference, Prime Minister Yitzhak Shamir told the opening session attended by nearly all the region’s Arab leaders, “We are the only people who have lived in the Land of Israel without interruption for nearly 4,000 years; we are the only people, except for a short Crusader kingdom, who have had an independent sovereignty in this land; we are the only people for whom Jerusalem has been a capital; we are the only people whose sacred places are only in the Land of Israel.”42

But Israeli diplomats at Oslo advanced a different notion: that Israeli territorial concessions to the newly formed Palestinian Authority obviated the need to promote Israel’s rights and explain its diplomatic positions.43 Foreign Minister Shimon Peres declared at the time that good policy was good public diplomacy.44 Once Israel dropped its past reliance on rights-based diplomacy and adopted a new concessions-based diplomacy instead, its spokesmen essentially acquiesced to the Palestinian historical narrative. The Israelis offered no alternative perspective. Thus Palestinian officials would repeatedly charge Israel with being a “foreign occupier” and, rather than contest that claim, some Israeli diplomats would counter by saying that Israel wanted to “end the occupation” but lacked a reliable peace partner. Even former UN Secretary-General Kofi Annan echoed the Palestinian charge publicly on a number of occasions including in his last major UN address in February 2007.45

Reasserting Israel’s Legitimacy and Rights to Sovereignty

Israel has always expressed its readiness for territorial compromise and this principle will continue to play a role in future diplomatic processes. However, in view of the fundamental doubts expressed regarding Israel’s legitimacy in many international circles, Israeli government leaders and diplomats would be well advised to reiterate to their foreign counterparts the following historical and legal principles of Israel’s rights-based diplomacy.

Historical Context

The modern State of Israel is not a child of European colonialism. Rather, it is the result of Ottoman decolonialization and one of the first fruits of the international community’s commitment to self-determination in the post-World War I era. The State of Israel also is the ancestral homeland of the Jewish nation and the third Jewish commonwealth to arise in the Land of Israel over the past three thousand years. In fact, the Jewish people is the only nation that has ever established an independent homeland in the Land of Israel with Jerusalem as its capital.

Since the destruction of Jerusalem’s First Jewish Temple by the Babylonians in 586 BCE and the Second Jewish Temple by the Romans in 70 CE, the Jewish people maintained an unbroken bond with the Land of Israel. A Jewish rebellion in 132 CE became the first to destroy a Roman legion, the high Jewish court (Sanhedrin) remained a preeminent authority in Israel for centuries, and the Jews of the Land of Israel continued to make such important contributions to Jewish life as the composition of the Sabbath-evening prayer services in the sixteenth century. Jewish communities, though limited in size, remained in ancient Israel even after the Roman invaders renamed the land Palestina, as preeminent Middle East scholar Bernard Lewis has noted, so as to obliterate the memory of Jewish nationhood.46 At the same time, according to Lewis, “from the end of the Jewish state in antiquity to the beginning of British rule, the area now designated by the name Palestine was not a country and had no frontiers, only administrative boundaries; it was a group of provincial subdivisions, by no means always the same, within a larger entity.”47

Despite Jerusalem’s destruction, Jewish religious scholars and political leaders from across the globe still came to Israel and established and maintained vibrant communities in other Jewish holy cities such as Hebron, Tiberias, and Safed.

For the vast majority of exiled Jews over the past two thousand years until the reestablishment of the third Jewish nation-state in 1948, the Jewish yearning and historical commitment to return to its ancient homeland and capital in Jerusalem played a central role in Jewish life throughout the world. It was expressed in thrice-daily Jewish prayer and blessings, and at Jewish holidays – particularly the end of the Passover Seder and the Yom Kippur service. The centrality of Zion and Jerusalem has also played a key role in Jewish lifecycle events such as weddings and funerals.

The Modern Legal Context of Israel’s Rights to Sovereignty

It was the sui generis Jewish historical bond with Jerusalem and Israel that led the League of Nations and then the United Nations during the last century to recognize the Jewish people’s legal right to “reconstitute its national home in that country.”48 In other words, the international community formally recognized a preexisting right to Jewish sovereignty in Western-mandated Palestine from the Jordan River to the Mediterranean Sea. It was Winston Churchill who noted in 1922 that “the Jews are in Palestine by right, not sufferance.”49 The High Commissioner for Palestine reiterated in his first report to the British government in 1925 the basis of international guarantees for a Jewish state. He noted:

The Balfour Declaration was endorsed at the time by several of the Allied Governments. It was reaffirmed by the conference of the Principal Allied powers at San Remo in 1920. It was subsequently endorsed by unanimous resolutions by both houses of the Congress of the United States; it was embodied in the Mandate for Palestine approved by the League of Nations in 1922; it was declared in a formal statement of policy issued by the Colonial Secretary in the same year, “not to be susceptible of change”; and it has been the guiding principle in their direction of the affairs of Palestine of four successive British Governments. The policy was fixed and internationally guaranteed.50

Although the League of Nations was terminated in the wake of World War II in 1946, the mandate was not, and could not legally be abridged. Article 80 of the UN founding charter acknowledged the continuing legal rights of mandate beneficiaries. Moreover, the International Court of Justice ruled in a series of cases concerning South Africa’s mandate over South West Africa (now Namibia) that articles of mandate are binding legal treaties that continue to grant rights to their beneficiaries.51 Although Israel’s neighbors continue to dispute the proper location of its borders, the Jewish state’s fundamental legal rights to a sovereign independent Jewish state in former Western- mandated Palestine cannot be and have never been abrogated or revised by any overriding source of legal authority.

Nothing prevents Israel from conceding its potential claims to sovereignty within the context of a peace process that brings Israel to agreed-upon secure borders. Preemptive concession of such claims, however, is unnecessary and has proved diplomatically counterproductive.

The adoption of a rights-based paradigm for Israeli diplomacy will not likely trigger an immediate improvement in the UN General Assembly’s voting patterns regarding Israel. It also is unlikely that diplomats from Muslim countries will be persuaded by Israel’s rightful claims. However, the international community’s position toward Israel is in greater flux in the wake of the Hamas takeover of Gaza in June 2007. Israel might now begin to enjoy greater understanding in some European and Asian circles. Therefore, rights-based diplomacy can make a difference for those who might express greater sympathy for Israel’s position but would first seek a firm basis in international law before offering diplomatic support.

Israel, therefore, by refusing to stand up for its rights and instead relying on the power of concessions to gain international support, undermines its own interests. That is why the failed paradigm of concessions-based diplomacy must now be replaced.

 

*   *   *

Notes

http://www.haaretz.com/hasen/spages/865408.html.

This recommendation was made in 2003 by former UN ambassador Dore Gold following international calls for the dissolution of Israel as an independent state and its replacement by a one-state solution for Palestinians and Israelis. See Dore Gold and Jeff Helmreich, “An Answer to the New Anti-Zionists: The Rights of the Jewish People to a Sovereign State in Their Historic Homeland,” Jerusalem Viewpoints, Jerusalem Center for Public Affairs (www.jcpa.org), November 16, 2003.

Herb Keinon, “PM: Helping the PA is ‘Risky, but Necessary’,” Jerusalem Post, online edition, June 23, 2007 (http://www.jpost.com/servlet/Satellite?cid=1182409630511&pagename=JPost%2FJPArticle%2FShowFull).

Aluf Benn, “Minster Confirms Gov’t Sent Message to Syria via ‘Secret Channel,'” Ha’aretz, June 9, 2007. See also Associated Press, “PM Willing to Return Golan for Peace with Syria,” Jerusalem Post, June 8, 2007; Aluf Benn, “PM Mulls, via 3rd Party, Resuming Syria Talks,” Ha’aretz, May 31, 2007, http://www.haaretz.com/hasen/spages/865421.html.

Benn, “PM Mulls.”

Israeli withdrawal and subsequent full Palestinian control has transformed Gaza into a center for radical Islamic terror activity against Israel. In 2006 alone, 891 Gaza-based rocket assaults were carried out against Israel compared to a total of 716 for the previous five years. See http://www.terrorism-info.org.il/malam_multimedia/Hebrew/heb_n/pdf/terrorism_2006h.pdf.

Address by Prime Minister Ariel Sharon at the Fourth Herzliya Conference, Israel, Ministry of Foreign Affairs website, December 18, 2003, http://www.mfa.gov.il/MFA/Government/Speeches+by+Israeli+leaders/2003/Address+by+PM+Ariel+Sharon+at+the+Fourth
+Herzliya.htm.

8. Lt.-Gen. Moshe Yaalon, “The Second Lebanon War: From Territory to Ideology” in:

Iran, Hizbullah, Hamas and the Global Jihad: A New Conflict Paradigm for the West (Jerusalem: Jerusalem Center for Public Affairs, 2007), p. 15.

September 29, 2005, marked five years since the outbreak of the violent confrontation. In its course 26,159 terrorist attacks had been perpetrated against Israeli targets, leaving 1,060 Israelis dead and 6,089 wounded, http://www.terrorism-info.org.il/malam_multimedia/html/final/eng/eng_n/pro_13_10_e.htm.

10 Dore Gold, “Europe’s Consistent Anti-Israel Bias at the United Nations,” in Manfred Gerstenfeld, ed., Israel and Europe: An Expanding Abyss?(Jerusalem: Jerusalem Center for Public Affairs, 2005), p. 54.

11 See Amnesty International 2007 Report, http://thereport.amnesty.org/document/15.

12 Ha’aretz News Service, “Israel Condemns U.K. Academic Boycott Bid as ‘Scandalous’,” Ha’aretz, May 31, 2007, http://www.haaretz.com/hasen/spages/865462.htm.. This latest British boycott followed the one in early 2007 by Britain’s National Union of Journalists and two earlier embargoes that were overturned in 2005 and 2006.

13 Cnaan Lipshitz, “South Africa’s Largest Trade Union Seeks to Boycott Israel,” Ha’aretz, May 31, 2007, http://www.haaretz.com/hasen/spages/865408.html.

14 Ibid.

15 “Battle for Britain,” Editorial, Ha’aretz, May 27, 2007.

16 CBS News interview with Harry Smith, November 28, 2006, http://www.cbsnews.com/stories/2006/11/28/earlyshow/leisure/books/main2212124.shtml.

17 Former legal adviser to the Israeli Foreign Ministry Allan Baker noted that the establishment at Oslo of the official nomenclature “Palestinian Authority” and not “Palestine” was a major point of negotiation before the signing of the Oslo accords with Yasser Arafat and the Palestine Liberation Organization. Baker noted in 2003 that premature references to “Palestine” are a de facto delegitimization of Israel’s rights and contravene the carefully crafted language both of the Oslo accords and UN Security Council Resolution 242. Interview with Alan Baker, legal adviser to Israel’s Foreign Ministry, January 17, 2003, as cited in Dan Diker, “Does the International Media Overlook Israel’s Legal Rights in the Israeli-Palestinian Conflict?” Jerusalem Issue Brief, No. 495, Jerusalem Center for Public Affairs, April 1, 2003, http://www.jcpa.org/jl/vp495.htm.

18 Robin Shepard, “In Europe an Unhealthy  Fixation on Israel,” Washington Post, January 30, 2005, http://www.washingtonpost.com/wp-dyn/articles/A46382-2005Jan29.html.

19 Tony Judt, “Israel: The Alternative,” New York Review of Books, October 23, 2003, http://www.nybooks.com/articles/16671.

20 Allan Cowell, “Mayor Accuses Israel of ‘Ethnic Cleansing,'” New York Times, March 5, 2005, http://www.iht.com/articles/2005/03/04/news/london.php.

21 Shepard, “In Europe.”

22 Irwin Cotler, “Durban’s Troubling Legacy One Year Later: Twisting the Cause of International Human Rights against the Jewish People,” Jerusalem Issue Brief, Vol. 2, No. 5, August 20, 2002.

23 Alvin H. Rosenfeld, “Progressive Jewish Thought and the New Anti-Semitism,” American Jewish Committee, December 2006, p. 8, http://www.ajc.org/site/apps/nl/content3.asp?c=ijITI2PHKoG&b=846637&ct=3283863.

24 “Battle for Britain.” Despite the fact that Hamas does not recognize pre-1967 Israel and continues to launch rocket terror assaults against southern Israeli cities in pre-1967 Israel from Palestinian-controlled Gaza, one of the initiators of Britain’s academic boycott against Israel emphasized that, “Justice in the Palestinian-Israeli conflict is entirely on one side” – meaning, of course, the Palestinian side.

25 Tzipi Livni, “The Peace Alternative,” English version of the article by Foreign Minister Livni published in Arabic in Al-Sharq Al-Awsat (London), June 18, 2007. See: http://www.israel.org/MFA/Government/Speeches+by+Israeli+leaders/2007/
The+Peace+Alternative+18-Jun-2006.htm.

26 Ehud Olmert, “1967: Israel Cannot Make Peace Alone,” The Guardian, June 6, 2007, http://www.guardian.co.uk/commentisfree/story/0,,2096527,00.html.

27 Ibid.

28 Ismail Haniyeh, “1967: Our Rights Have to Be Recognised,” The Guardian, June 6, 2007, http://www.guardian.co.uk/commentisfree/story/0,,2096394,00.html.

29 See Dore Gold, The Fight for Jerusalem: Radical Islam, the West, and the Future of the Holy City (Washington: Regnery Publishing, 2007), pp. 276-277.

30 See the following legal precedents of the International Court of Justice: International status of South-West Africa, Advisory Opinion, I.C.J. Rep. 1950, p. 128; South-West Africa – Voting Procedure, Advisory Opinion of June 7th, 1955: I.C.J. Rep. 1955, p. 67; South West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary Objections, Judgment of 21 December 1962: I.C.J. Rep. 1962, p. 319; Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, I.C.J. Rep. 1971, p. 16.

31 Dore Gold, “The U.S. and Defensible Borders” in: Defensible Borders for a Lasting Peace (Jerusalem: Jerusalem Center for Public Affairs, 2005), p.59

32 Israel’s legal and historical claims in the former Palestine Mandate include what are today the West Bank and Gaza. The League of Nations Mandate was the last and still-binding legal instrument to assign rights to the residents of the former British Mandate of Palestine. As early as 1922, the Council of the League of Nations noted Israel’s right to “reconstitute its national Homeland” in the Land of Israel. In other words, the League of Nations recognized Israel’s preexisting rights to settle in what had been Western Mandatory Palestine. See Gold and Helmreich, “An Answer to the New Ant-Zionists.”

33. See, e.g., Report of the United Nations Special Rapporteur on the Situation of Human Rights in the Palestinian Territories Occupied Since 1967, John Dugard, A/HRC/4/17, 29 January 2007 (esp. paragraphs 1, 6 and 22 referring to Gaza as part of the “Occupied Palestinian Territory” and applying the Fourth Geneva Convention regarding “occupied” territory).

34 Herb Keinon and Associated Press, “Solana Says EU Won’t Support a  ‘Nightmare’ Gaza-Only Pullout,” Jerusalem Post, October 24, 2004.

35 Speech by Maj.-Gen. Uzi Dayan at the conference on “40 Years of UNSC Resolution 242,” Jerusalem Center for Public Affairs and Konrad Adenauer Foundation, Jerusalem, June 4, 2007.

36 Dan Diker, “Why Are Israel’s Public Relations So Poor?” Jerusalem Viewpoints, No. 487, Jerusalem Center for Public Affairs, November 2002, p. 7.

37 See: http://www.mfa.gov.il/MFA/Archive/Peace+Process/1993/Remarks+by+PM+Yitzhak+Rabin+at+Signing+ of+DOP+-+13.htm.

38 Speech of Yitzhak Rabin at the Knesset vote to approve Oslo II, September 28, 1995. Rabin’s territorial claims had strong legal and diplomatic grounding. Israel’s legal right to secure and recognized boundaries was affirmed in the British and American-drafted UN Security Council Resolution 242, which the Security Council unanimously approved on November 22, 1967, and was subsequently accepted by both sides of the Arab-Israeli conflict as a basis for peaceful resolution. Indeed, UNSC 242 would be the cornerstone of all Arab-Israeli diplomacy since Israel’s defensive war of 1967. Its major principles are:

1. Israel’s withdrawal from territories to secure and recognized boundaries, which would be different from the indefensible prewar armistice lines that became known in international diplomatic parlance as the Green Line or, in other words, the ceasefire lines of 1949. Israel’s former UN ambassador Dore Gold recently noted that George Brown, the British foreign secretary in 1967, clarified the resolution’s phraseology at the time saying, “Israel will not withdraw from all the territories.” Dore Gold, “Forgotten Legal Rights,” New York Sun, June 8, 2007.

2. UNSC 242 was predicated on the fact that any Israeli withdrawal would take place only with the institution of full peace and recognition from its Arab neighbors, who were branded as the war’s aggressors, before Israel would be required to withdraw from any captured territory. This point was recently emphasized by international human rights attorney Prof. Alan Dershowitz, who was on the U.S. drafting team of UNSC 242 under former U.S. ambassador to the United Nations Arthur Goldberg. See Dershowitz’s speech at the conference on “40 Years of UNSC Resolution 242,” Jerusalem Center for Public Affairs and Konrad Adenauer Foundation, Jerusalem, June 4, 2007.

3. The legal context of Rabin’s postwar claims for a united Jerusalem under Israeli sovereignty also stemmed from preexisting Israeli claims under the Palestine Mandate, which were unaffected by  Jordan’s illegal occupation of Jerusalem and the West Bank in 1948 and its role as an aggressor in 1967. This position was also supported by leading international legal authorities at the time. For example, Stephen Shwebel, former U.S. State Department legal adviser who would become president of the International Court of Justice at The Hague, wrote in 1970, “When the prior holder of territory had seized that territory unlawfully, the state that subsequently takes that territory in the lawful exercise of self-defense, has against that prior holder, better title.” Shwebel would add, “Israel has the better title in the territory of what was Palestine, including the whole of Jerusalem, [emphasis added] than do Jordan and Egypt.” See Prof. Judge Stephen M. Schwebel, “What Weight to Conquest?” in Justice in International Law(Cambridge: Cambridge University Press, 1994).

39 Benjamin Netanyahu, A Place among the Nations: Israel and the World (New York: Bantam, 1993), pp. 14-15.

40 Address by Prime Minister David Ben-Gurion to the Israeli Knesset, December 5, 1949, in Meron Medzini, ed., Israel‘s Foreign Relations: Selected Documents 1947-1974 (Jerusalem: Ministry for Foreign Affairs, 1976), pp. 223-224.

41 Address by Ambassador Abba Eban to the UN Trusteeship Council, February 20, 1950, in ibid., pp. 227-236.

42 Address by Prime Minister Yitzhak Shamir at the Madrid Peace Conference, October 31, 1991. Israel Ministry of Foreign Affairs,http://www.mfa.gov.il/MFA/Foreign%20Relations/Israels%20Foreign%20Relations%20since%201947/
1988-1992/24320Address%20by%20Prime%20Minister%20Shamir%20at%20the%20. Shamir asserted at the opening session:

We are the only people who have lived in the Land of Israel without interruption for nearly 4,000 years; we are the only people, except for a short Crusader kingdom, who have had an independent sovereignty in this land; we are the only people for whom Jerusalem has been a capital; we are the only people whose sacred places are only in the Land of Israel. No nation has expressed its bond with its land with as much intensity and consistency as we have. For millennia our people repeated at every occasion the cry of the psalmist: “If I forget thee, Jerusalem, may my right hand lose its cunning.” For millennia we have encouraged each other with the greeting “Next year in Jerusalem.” For millennia, our prayers, literature and folklore have expressed powerful longing to return to our land. Only Eretz-Yisrael, the Land of Israel, is our true homeland. Any other country, no matter how hospitable, is still a diaspora, a temporary station on the way home.

Former Israeli Foreign Ministry Director-General Eytan Bentsur, one of the Madrid conference’s primary architects, told the author in a conversation on June 9, 2007, that Madrid’s conceptual backbone was that both Israel and Arab countries were guaranteed the freedom to advance their respective claims in their opening statements without preconditions. Bentsur also noted that Madrid’s approach contrasts with the concessions-based approach taken by Israeli policymakers and diplomats today that the “price of peace talks with Syria or the Palestinians is known from the outset.” For example, Deputy Defense Minister Ephraim Sneh said on June 4, 2007, that there is no way to achieve a peace agreement with the Palestinians unless Israel agrees to a near-complete withdrawal to the June 4, 1967, lines and offers the Palestinians additional land swaps to make up for any lands Israel retains east of those lines. See speech by Deputy Defense Minister Ephraim Sneh at the conference on “40 Years of UNSC Resolution 242,” Jerusalem Center for Public Affairs and Konrad Adenauer Foundation, Jerusalem, June 4, 2007.

43 Diker, “Why Are Israel’s Public Relations So Poor?” p. 7.

44 Ibid.

45 Kofi Annan, “Last Speech on the Middle East to the Security Council,” New York Review of Books, February 15, 2007, http://www.nybooks.com/articles/19877. On other occasions Annan labeled Israel’s presence in the West Bank and Gaza an “illegal occupation” of Palestinian lands, http://www.un.org/News/Press/docs/2002/sgsm8160.doc.htm.

46 Bernard Lewis, “The Palestinians and the PLO: A Historical Approach,” Commentary, January 1975, pp. 32-48. See also Bernard Lewis, Semites and Anti-Semites: An Inquiry into Conflict and Prejudice (New York: Norton, 1999), p. 164.

47 Ibid.

48 See Dore Gold, Jerusalem in International Diplomacy (Jerusalem: Jerusalem Center for Public Affairs, 2001), p. 23. See also Netanyahu, A Place among the Nations, p. 408.

49 Netanyahu, ibid., p. 22.

50 Eli Hertz, “Mandate for Palestine”: The Legal Aspects of Jewish Rights (New York: Myths and Facts, Inc., 2007), p. 13.

51.International status of South-West Africa, Advisory Opinion, I.C.J. Rep. 1950, p. 128; South-West Africa Voting Procedure, Advisory Opinion of June 7th, 1955: I.C.J. Rep. 1955, p. 67; South West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary Objections, Judgment of 21 December 1962: I.C.J. Rep. 1962, p. 319; Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, I.C.J. Rep. 1971, p. 16.

*   *   *

Dan Diker is Director of the Institute for Contemporary Affairs (ICA) and foreign policy analyst of the Jerusalem Center for Public Affairs. He also serves as guest Middle East affairs analyst for the Israel Broadcasting Authority’s English News. Email: diker@jcpa.org.

The author thanks Prof. Avraham Bell, Faculty of Law, Bar-Ilan University, for his assistance.