An attempt is made to share the truth regarding issues concerning Israel and her right to exist as a Jewish nation. This blog has expanded to present information about radical Islam and its potential impact upon Israel and the West. Yes, I do mix in a bit of opinion from time to time.
of State John Kerry spent the spring shuttling between his two major
foreign-policy concerns—Russia’s control over Crimea and Israel’s
control over the West Bank—entirely unaware that he was engaged in a
world-historical irony. Both these situations turn on identical
international-law principles. Indeed, the failure of the United States
to apply these principles consistently has led to the long-standing
failure of its Middle East initiatives, while inadvertently opening the
door for Russian aggression.
legal principle that explains why Crimea was and remains under
Ukraine’s sovereignty also validates Israel’s presence in the West Bank.
us start with the less controversial case. The international community
agrees that, despite Russia’s annexation, Crimea remains sovereign
Ukrainian territory. On March 27, the UN General Assembly voted 100 to
11 to continue to recognize Crimea as part of Ukraine. Russia cannot
rewrite Ukraine’s frontiers at will.
But, as many foreign-policy realists argued while Vladimir Putin was making his move, it is not all that clear why Crimea should belong
to Ukraine in the first place. The substantial majority of the
population is ethnically, linguistically, and religiously Russian. The
majority of its population probably prefers to be ruled from Moscow
rather than Kiev (though not by the 90-plus percent margin of the recent
shotgun referendum). The territory is adjacent to Russia and has been
part of Russia historically.
why Ukrainian sovereignty over Crimea? The answer: Nikita Khrushchev’s
caprice. In 1954, the first secretary of the Central Committee detached
Crimea from the Russian Soviet Socialist Republic and gave it to the
Ukrainian Soviet Socialist Republic. He did not consult the Crimeans,
but it did not much matter, as everyone was ruled from the Kremlin
anyway. From that moment on, official internal Soviet borders included
Crimea in Ukraine.
all Ukraine has for its claim of title to Crimea is a dead dictator’s
whim. But for international law, that is more than enough. When new
countries emerge from old ones or from colonial empires, the last
official international borders constitute the new boundary lines. This
doctrine is known as uti possidetis iuris (meaning “you possess
under law”). It has been applied to the borders of new states around the
world and recognized as a basic principle of international law by the
International Court of Justice. Even when several states emerge from
one, as Russia and Ukraine did from the USSR, the prior internal
administrative divisions become the new international frontiers.
striking, this principle applies in full when the old borders were
colonial or otherwise undemocratically imposed. If it were not so, new
countries would be born with all their borders in dispute, and endless
frontier conflicts between neighbors would ensue. That is why
international law sets the last official boundaries, even colonial
provincial boundaries, as the permanent ones. Subsequent aggression
cannot change them, as the reaction to Russia’s Crimean conquest shows.
Now let us apply these principles to Israel.
The disintegration of the Ottoman Empire in World War I led to the
division of its territories in the Middle East. The core of the Ottoman
Empire became the new country of Turkey, which, in turn, surrendered all
Turkish sovereignty over Ottoman territory in the rest of the Middle
East (not just Israel, but also modern-day Iraq, Syria, Lebanon, and
Jordan). Instead of imposing their own sovereignty on the parts of the
Ottoman Empire they conquered, Britain and France allowed the newly
created League of Nations to transform these territories into
“mandates.” The European states were committed to shepherding the
mandates into new independent nation-states. The League did so pursuant
to an explicit clause in its charter that authorized it to create such
mandates out of the lands “formerly belonging to the Turkish Empire.”
1922, the League of Nations established a new “country” to serve as the
Jewish national home. This was the Mandate for Palestine. Under certain
provisions of the Mandate, Palestine was partitioned at the Jordan
River to create the country of Transjordan (now called Jordan) on its
eastern bank. After that, international frontiers of Mandatory Palestine
ran from the river to the sea. The League of Nations Mandate for
Palestine provides the legal basis not only for Israel’s borders, but
for those of Jordan as well, and indeed for Jordan’s entire existence.
Israel is the state created in Mandatory Palestine. Thus under uti possidetis iuris,
it inherits the Mandatory borders. The only question is whether
anything has happened since the 1920s that legally modified these
Three events are commonly cited as justifying the non-application of the uti possidetis doctrine.
First was the UN General Assembly’s 1947 partition proposal, Resolution
181. Second was the partially successful 1948–49 Arab attempt to
prevent the establishment of a Jewish state in Palestine, which led to
the Green Line of 1949. Third was the UN Security Council’s response to
Israel’s retaking of these territories in the Six-Day War.
The Partition Proposal
Resolution 181 did not, as many seem to think, “create” the Jewish
state. That had been done on paper 25 years earlier by the League of
Nations Mandate, and later through Israel’s declaration of independence
and War of Independence—a struggle in which the UN did nothing to
promote the survival of the fledgling state.
181 proposed an elaborate seven-sector division of Mandatory Palestine,
an idea the Jewish leadership was willing to accept, but that the Arabs
rejected. The General Assembly Resolution did nothing to alter the
Mandatory borders because the GA is not a world legislature: It has no
legal power to make any binding rules, let alone redraw the borders of
the resolution itself explicitly recognizes that the Assembly has no
power to legislate its recommendations. If the GA were to vote today to
“partition” Ukraine, it would be similarly ineffectual. The 1947 plan
was a proposal for a compromise that, if accepted by both sides, would
have been binding, but which had no force in itself.
declared independence on May 14, 1948, with a document that
“proclaim[ed] the establishment of the Jewish State in Palestine, to be
called the Medinat Israel.” Under the uti possidetis iuris principle,
the borders of the new state were those of Mandatory Palestine. The new
state was immediately invaded by all its neighbors, who succeeded in
occupying much of its territory. But the 19-year-long occupation of
parts of the Mandate by Egypt and Jordan did no more to change its
borders than has Russia’s equally unprovoked aggression against Ukraine
today. Indeed, if Jordan’s occupation changed Israel’s borders, surely
Russia’s 20 or so years of controlling Transnistria should change
Moldova’s borders and Turkey’s 40-year occupation of Cyprus should
change that country’s borders.
The Green Line
Israel concluded armistices with its neighbors in 1949. These were not
peace treaties. They were temporary agreements to stop shooting. The
“Green Line” of 1949 was simply the demarcation of the separation
between Israeli and Arab forces. Without establishing any sovereign
border, it thereby preserved the Mandatory boundary. All of Israel’s
armistice agreements reflected this, including the Israeli-Jordanian
one: “The provision of this Agreement shall not in any way prejudice the
rights, claims and positions of either Party hereto in the ultimate
peaceful settlement of the Palestine question, the provisions of this
Agreement being dictated exclusively by military considerations.” Other
provisions also made clear that both parties recognized the Mandatory
boundaries as the only international borders for Palestine. The only
dispute was who would ultimately control it.
the very document that formalized the Green Line specifically said it
was not to be construed as a border, or anything other than a temporary
line of separation between Israeli and Arab forces. When Israel expelled
the Jordanian occupation forces after King Hussein attacked across the
Armistice line during the Six-Day War, the need for such a separation
came to an end.
Barack Obama and his secretary of state, like so many others, use the
phrase “1967 borders” to describe the Green Line; but it was explicitly
not a border, nor was it created in 1967. Indeed, with the exception of
Britain, no nation recognized Jordanian sovereignty over the territory
of Mandatory Palestine during its 19-year occupation. When Jordan and
Egypt signed peace treaties with Israel in 1979 and 1994, both nations
expressly referred to the Mandate boundary as the current international
border of Israel, demonstrating its continued relevance.
The United Nations Security Council responded to the Six-Day War with
its famous Resolution 242, which has set the basis for all subsequent
action by the council. Before turning to the resolution’s text, we
should note that, as was true of the General Assembly in 1947, the
Security Council does not have the power to redraw preexisting national
borders. Though the council has power under its charter to take certain
“binding” decisions, those are limited to authorizing economic and
military means to respond to breaches of the international peace; it
cannot alter the underlying dimensions of UN member states.
less important, Security Council practice requires the Council to refer
explicitly to the textual source of its authority as Chapter VII of the
UN Charter in order to make resolutions binding. The resolution does
not include such a reference, showing that the Council understood its
resolution to be nothing more than a recommendation.
242 famously calls for “withdrawal of Israeli armed forces from
territories occupied in the recent conflict.” This language was
deliberately chosen by its drafters to reject demands that Israel
withdraw from all territories it occupied, and instead leaves the scale
of the withdrawal up to future diplomacy. The wording of 242 was drafted
by the British delegation as a replacement for other versions that
would have required leaving “all” the territories.
A vast literature has arisen to cope with the fact that the word the does not precede the word territories in that sentence, but like much discussion of the Arab–Israeli
conflict, it puts questions concerning Israel in a unique legal
universe. In fact, it is fairly easy to see whether using the language
of territories would be a standard way for the Security Council
to require complete withdrawal. I have identified 16 other resolutions
demanding military pull-outs, of which four were prior to 1967. In each
case, the demand for complete withdrawal is explicit, with language such
as “withdraw from the whole territory” and “the territory” and with
references to particular antebellum positions. The language of 242 is
unique in the Security Council’s history, but consistent with its own
drafting history and the document’s intentions.Thus reading 242
to require a complete withdrawal not only misreads the resolution, but
also makes nonsense of 16 other important resolutions.
argue that 242 compels Israel to return to the Green Line, relying on
the resolution’s preamble, which stresses the “inadmissibility of the
acquisition of territory by war.” But that would be a strange way to
require Israel to return their territorial seizures of 1949 to Jordan
and Egypt. The next operative paragraph in 242, moreover, describes a
withdrawal to “recognized boundaries.” The 1949 Armistice Lines were not
“recognized boundaries” in any legal sense. They constituted nothing
more than a stand-off.
to recap: The League of Nations, acting pursuant to powers in its
charter, established the territory of Mandatory Palestine in 1922, much
as the Mandate system established the borders of most other Middle
Eastern states. The UN General Assembly did not have the power to modify
that territory with its 1947 Partition proposal. Nor did the pan-Arab
aggression of 1948–49 and its subsequent reception by the international
be sure, international sentiment has turned sharply against Israel’s
control over much of this territory. But international law is not a
popularity contest; if it were, Israel would have long ago been voted
off the island.
of this undercuts the common arguments for the creation of a
Palestinian state. Those arguments are rooted in diplomatic and
demographic considerations. But even if one accepts the idea that the
Mandate gave Israel borders too large for the Jewish population, it does
not therefore follow that the pan-Arab aggression of 1948–49
established presumptive or default borders. In fact, those can and
should be defined only by mutual agreement between Israel and the
If one believes, moreover, that the vague doctrine of self-determination—which is generally not thought
to entitle a people to an independent state—made an inarguable case for
a Palestinian Arab state somewhere between the Jordan River and the
Mediterranean Sea, uti possidetis would still be relevant. The
doctrine make clear that the relevant boundaries have nothing to do with
the 1949 Armistice Lines unless both parties agree they should.
that when new states emerge, the doctrine dictates that their borders
follow the last prior internal administrative division, such as state or
provincial borders. Under the Mandate, Palestine was divided into six
districts, no combination of which closely approximates the 1949
Armistice Lines. (For example, Gaza was lumped into one district with
the entire Negev, while the area now called the West Bank straddled
three different districts.) The 1993 Oslo Accords create three
administrative divisions (Areas A, B, and C)—two under Palestinian
jurisdiction and one under Israeli jurisdiction. Those lines make more
sense under international law than the sum of the noncontiguous, illegal
conquests by Egypt and Jordan in 1948–49.
The international community has, perhaps in sympathy with Palestinian claims, selectively forgotten the uti possidetis principle
when it comes to Israel. Putin’s actions in Ukraine illustrate the
dangers of such inconsistency. Once the world begins making exceptions
to the uti possidetis doctrine, it opens the door to claims like
Russia’s. After all, if an internationally established mandatory border
does not continue to abide for a new country, why should the arbitrary
frontier of a totalitarian dictator?
quick takeover of Crimea—and, as of this writing, its incremental
invasion of eastern Ukraine—also has significant political lessons for
Israel about any potential agreement with the Palestinians. Russia’s
dismemberment of Ukraine offers a frightening scenario of how a state of
Palestine could continue effective activities against Israel in the
wake of a peace treaty.
of the main rewards promised to Israel for the creation of a
Palestinian state in the West Bank and Gaza is that it would also give
Israel internationally recognized borders. While these borders would be
narrow, they would, it is said, enjoy the deep guarantee of
international legitimacy. Nations would move their embassies to (West)
Jerusalem. Israel would, as Tzipi Livni has said, be “put on the world
map.” The perceived value of this deal stems from the view that in the
21st century, sovereign borders cannot simply be rewritten.
has proven that “19th-century acts,” as Kerry called them, are alive
and well, and that the international community will do little to stop
them. Consider Moscow’s methods for taking apart Ukraine.
it bided its time, waiting more than two decades. Of course, if a deal
with the Palestinians lasts only that long before it is followed by new
demands, it will have proved to be a disastrous bargain for Israel.
Second, Russia focused on areas with significant concentrations of
co-ethnic population. In those areas, it followed Hitler’s Sudetenland
strategy of provoking riots and protests, and then protesting Ukraine’s
is precisely Israel’s greatest fear: that after the euphoria of a peace
deal, a newly emboldened Palestinian government, now with all the
apparatus of a state, would begin stoking disorder among Israeli Arabs
in the Galilee Triangle and Negev. Of course, Palestine would not be
able to grab these territories in a single putsch, as Russia did with
Crimea. Rather, it would seek to destabilize Israel, as Russia is now
doing in Eastern Ukraine.
Machiavellian goal would be to use Israel’s response to the fomented
unrest in a kind of diplomatic jujitsu, to make the case that the Jewish
state cannot be permitted to maintain sovereignty over its non-Jewish
populace. Then would come the kinds of demands that have been afforded
far too much respect when it comes to Russian claims in Ukraine—greater
federalism, decentralization of power, all of which would be designed to
empower disgruntled minorities who show greater fealty to the
neighboring aggressor than to the state of which they are citizens. In
such a situation, would the world rally to defend the internationally
mandated borders when it showed so little appreciation for them in
Israel’s case throughout so many decades?
one with a serious understanding of international law asks if it is
fair or just for Crimea to remain part of Ukraine, no matter the wishes
of Crimea’s population. Entertaining such a question and making it part
of the discussion would eventually lead to redrawing many of the world’s
borders. As we have seen, the same principles that justify Ukraine’s
claims to Crimea justify Israel’s claims to the West Bank.
should not be too put out by the international community’s failure to
apply its general rules to the Jewish state’s rights, for the Ukrainian
crisis also shows the limits of those rules. Ukraine may enjoy
international backing for its claims while Israel does not. But the
Ukrainian crisis also shows that when it comes to action, the
international community will be driven primarily by the exigencies and
conveniences of the moment, not by considerations of legality or past
promises. In the end, as has been the case since 1948, Israel will have
to rely on itself.
About the Author
Eugene Kontorovich is a professor at Northwestern University School of
Law who specializes in international and constitutional law, a senior
fellow at the Kohelet Policy Forum in Jerusalem, and a Lady Davis
Visiting Professor at Hebrew University.