Jay Sekulow of ACLJ Says: United Nations Vote Backing Palestinians Threatens Israel & Peace

We knew it would be an uphill battle at the United Nations. The UN today voted to give the terrorist-led Palestinian Authority (PA) “non-member observer state” status. Such a move is deeply flawed and violates international law. By upgrading the status of this terrorist-led organization, the UN is setting the stage for more instability in the Middle East.

This is a flawed legal decision — and one intended to divide Jerusalem and put Israel at greater risk. Lets review point by point some of the Palestinian arguments and the UN Decision.

POINT: The PA seeks UN recognition of a state of Palestine “on the Palestinian Territory occupied [by Israel] since 1967” within “the pre-1967 borders.”

REBUTTAL: The territory to which the PA is referring is the West Bank and the Gaza Strip. At no time in history has there been an Arab Palestinian state or similar Arab Palestinian political entity exercising any form of national sovereignty over either parcel of land. After the British departed Palestine in 1948, Jewish Palestinians declared their independence, thereby establishing the State of Israel. Israel’s Arab neighbors immediately attacked the fledgling Jewish state. Rather than annihilate the infant state of Israel, Israel actually gained additional territory than originally allotted to it by the UN Partition Plan. The war ended with a series of armistice agreements that, at Arab insistence, determined that the armistice lines were not lawful borders, meaning that actual borders must still be negotiated. Further, no Arab: Palestinian: political entity was established in 1949. For 18 years, both territories remained under belligerent occupation by foreign Arab armies until captured by Israel in 1967. Moreover, since 1967, no Arab Palestinian political entity has exercised sovereign control over such territories. Additionally, UN Security Council Resolution 242 (1967) only required that Israel return “territories” captured during the 1967 war, not “the” or “all the” territories it captured. Such wording was intentional.

Moreover, because the terms of the British Mandate have never been superseded, the right of Jews to settle throughout Palestine is still valid. As such, since Israelis (as successors to: JewishPalestinians) retain the right to settle throughout Palestine, they not only have the right to establish settlements in the West Bank, they also have an equal claim to the territory, thereby negating the Arab Palestinian claim that the territory is “occupied.”

POINT: The PA is asking the UN General Assembly to take unprecedented and improper action in granting Palestinian statehood.

REBUTTAL: The UN does not have the authority to recognize a state nor does it claim to have such power. Such actions are the responsibility of individual governments: The recognition of a new State or Government is an act that only other States and Governments may grant or withhold. . . .: The United Nations is neither a State nor a Government, and therefore does not possess any authority to recognize either a State or a Government. As an organization of independent States, it may admit a new State to its membership or accept the credentials of the representatives of a new Government.

Thus, existence as a “state” is an a: priori: requirement for UN membership, and the UN realizes that it does not have the power to recognize a state. Instead, any determination of statehood by the General Assembly would be a raw exercise of politics, not law. As such, any state recognition by the General Assembly would be illegitimate, as would be the “state” so recognized.

The UN does not have the authority to recognize a Palestinian state. To try to do so subverts international law. Consequently, any General Assembly recognition is a legal nullity. Further, even seeking such a result demonstrates that the PA is incapable of keeping its words vis-à-vis treaty partners.

POINT: The PA argues that Israel acquired unlawful control over Palestinian territory by aggressive war.

REBUTTAL: It is well-settled that international law forbids acquiring territory through aggressive war. The issue is whether territory can be obtained through defensive measures. In effect, when a state violates international law by engaging in aggressive war and that state loses territory it occupies, there is no requirement in international law that such territory be returned to the violating state. In fact, any asserted requirement to do so would reward the aggressor vis-à-vis the victim. As such, Israel reasonably believes that territory may indeed be acquired through defensive measures.

In the case of the West Bank and the Gaza Strip, when Israel captured those territories in 1967, both areas had been under belligerent military occupation by foreign Arab armies for eighteen years. Neither of the occupying states, Jordan or Egypt, had any right to sovereignty over the respective territories they were occupying. Further, no Palestinian successor state existed anywhere in the territories of the former Mandate for Palestine other than Israel, the Jewish Palestinian successor state. As such, when Israel occupied the West Bank and the Gaza Strip as a result of winning a defensive war against neighboring Arab states bent on Israel’s destruction, it acquired territories with no prior Palestinian sovereign. As such, since Israel was a Palestinian successor state to the British Mandate,: Jewish: Palestinians had a valid claim to such territories, a claim equal to that of Arab Palestinians. Because both Jews and Arabs can advance valid claims to the West Bank and the Gaza Strip, such territories are disputed territories. Consequently, negotiations between the parties are necessary to determine to whom the various territories belong.

In short, Israel’s control of the West Bank, East Jerusalem, and the Golan Heights is fully consistent with international law. Israel has never occupied the West Bank and is not currently occupying the West Bank (one cannot occupy, in the sense of the Fourth Geneva Convention, territory to which it can–and does–assert a valid claim of sovereignty).

POINT: The PA acknowledges the necessity of conducting bilateral negotiations with Israel to resolve outstanding core issues, all the while attempting to bypass such negotiations in obtaining statehood recognition directly from the UN.

REBUTTAL: In its draft resolution, the PA recognizes the need to resume negotiations to resolve the crucial issues currently barring the two-state solution, namely, the control of Jerusalem, settlements, and borders–issues that are prerequisite to a two-state solution. Despite its apparent acknowledgment of its obligations to negotiate, the PA is attempting to circumvent the negotiation process altogether by appealing directly to the UN for statehood.

By attempting to obtain a declaration of statehood via the UN, the PA is in direct violation of a series of Israeli-Palestinian agreements that require: bilateral negotiations. By taking its case directly to the General Assembly, the PA is openly and notoriously breaching its treaty obligations with Israel, obligations it freely assumed under the auspices of the international community. For example, Palestinian officials explicitly agreed not to change the PA’s status outside of peace talks pursuant to the Interim Agreements. By appealing to the UN instead of negotiating, the PA is undermining all of the UN’s efforts for peace to date. Were the General Assembly to recognize a form of Palestinian statehood via a status change, the UN would simply undermine its own legitimacy in the international community.

Because Israel has correctly concluded from the PA’s request for statehood that the Palestinians have breached their solemn agreements and, thus, have no intention of honoring their obligations under such agreements, Israel is, consequently, also freed from fulfilling its reciprocal obligations under the same agreements. Viewed from such a perspective, the PA’s course of action is destructive to long-term Palestinian interests. For example, Israel could withhold from the Palestinians approximately $1 billion in collected taxes. Further, Israel could take steps to reassert direct political control throughout the West Bank or unilaterally incorporate portions of the West Bank deemed necessary for national security into the State of Israel.

POINT: The PA cites in support of its claim to statehood status UN General Assembly Resolution 181(II) and UN Security Council Resolution 242, arguing that the resolutions call for creation of an Arab state in Palestine and return of territories occupied after the Six-Day War of 1967, respectively.

REBUTTAL: The UN General Assembly adopted Resolution 181 in November of 1947, setting forth a Partition Plan that called for establishing an Arab State, a Jewish State, and an area around Jerusalem to be under international control. While the Palestinian Jews accepted the Plan, the Palestinian Arabs rejected it. Although the Palestinians cite Resolution 181 in support of their claim for statehood, the following must be kept in mind: (1) all Arab states rejected outright Resolution 181 at the time of its promulgation; (2) the Palestinians continue to reject recognizing Israel as the Jewish state called for by the resolution; and (3) the Palestinians simply ignore the fact that Resolution 181 places Jerusalem and its environs under international control. Since the UN partition plan was contingent upon acceptance by both parties, its rejection by Arab Palestinians–coupled with the Arab attack on the newborn State of Israel in May 1948–effectively torpedoed the Resolution.

Further, the PA’s claim that the Security Council Resolution 242 supports their notion that the boundaries of a future Palestinian State are already fixed and that Israel must return all lands occupied as a result of the Six-Day War wilfully ignores the text of the resolution. First, the Resolution makes no mention whatsoever of “Palestinians” or their cause (no Palestinian entity existed at the time–hence, Resolution 242 was aimed solely at Israel, Egypt, Jordan, and Syria). Second, Resolution 242 contemplates a “withdrawal . . .from territories: occupied in the recent conflict,” not withdrawal fromthe territories or all territories, proposed language that had been considered and rejected. As such, the actual boundaries of a future Arab Palestinian State are yet to be determined, further undermining the notion that a Palestinian State currently exists, let alone that one exists with the pre-1967 boundary lines as recognized borders.

In citing General Assembly Resolution 181 and Security Council Resolution 242 as support for the Palestinian claim of statehood status, the Palestinian Authority demonstrates their propensity to pick and choose from UN resolutions those portions that support their asserted claims while simply ignoring portions that undermine their positions.

In conclusion, the General Assembly decision to recognize the PA as a “state,” is an illegitimate act. Further, the PA’s very act of seeking such recognition from the General Assembly reveals the Palestinians to be wholly unworthy of trust, thereby precluding future negotiations with Israel, since Israel cannot be expected to enter solemn agreements with a party that lacks the integrity necessary to keep its word.

We know that the PA has been working for years to implement a strategy to gain worldwide recognition and to generate as much opposition as possible to the state of Israel and the Jewish people. Don’t think for a moment that the PA is satisfied with this new “non-member observer state” status. They will use this vote to march forward – to push for complete UN member state status – giving this terrorist-led group broader reach and influence.

What’s even more troubling is the fact that this UN vote opens the door for more false war crimes trials against Israeli citizens. Two years ago, the ACLJ stood before the Prosecutor of the International Criminal Court (ICC) in defense of Israel and two soldiers who that were falsely accused of war crimes. We successfully got the ICC to dismiss those false charges, in part because Palestine was not a state as recognized by the UN. We must make sure Palestine never achieves full member state status at the UN.

Today’s UN vote only underscores the need to keep up this fight – to continue to oppose a Palestinian state – to prevent a divided Jerusalem. Israel Prime Minister Netanyahu said the vote does “not change anything on the ground. It will not further the establishment of a Palestinian state, but will make it more distant.”

The one-sided resolution approved by the UN, Netanyahu said, doesn’t advance peace – it pushes it backward. “No force in the world will get me to compromise on Israel’s security,” said Netanyahu. In the words of the Prime Minister: “No decision by the UN can break the four thousand year old bond between the people of Israel and the land of Israel.”

Very true.

Jay Sekulow: is Chief Counsel of Washington based: the American Center for Law and Justice (ACLJ).: Jay Sekulow: is a renowned constitutional attorney, an international expert on religious liberty, and an acclaimed and distinguished broadcaster.

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