Dershowitz: Legal Implication of the United Nations Resolution on Palestine

December 2, 2012 2:10 am 6 comments

The United Nations logo.

The General Assembly vote declaring that Palestine, within the pre-1967 borders, is a “state”, at least for some purposes, would have nasty legal implications, if it were ever to be taken seriously by the international community.  It would mean that Israel, which captured some Jordanian territory after Jordan attacked West Jerusalem in 1967, is illegally occupying the Western Wall (Judaism’s holiest site), the Jewish Quarter of old Jerusalem (where Jews have lived for thousands of years), the access road to the Hebrew University (which was established well before Israel even became a state) and other areas necessary to the security of its citizens.  It would also mean that Security Council Resolution 242, whose purpose it was to allow Israel to hold onto some of the territories captured during its defensive 1967 war, would be overruled by a General Assembly vote—something the United Nations Charter explicitly forbids. It would be the first time in history that a nation was required to return all land lawfully captured in a defensive war.

If all the territory captured by Israel in its defensive war is being illegally occupied then it might be open to the newly recognized “Palestinian State” to try to bring a case before the International Criminal Court against Israeli political and military leaders who are involved in the occupation.  This would mean that virtually every Israeli leader could be placed on trial.  What this would entail realistically is that they could not travel to countries which might extradite them for trial in the Hague.

These absurd conclusions follow from the theater of the absurd that occurred when the General Assembly, for the thousandth time, issued an irrelevantly one sided declaration on Palestine.  As Abba Eban once put it:  “If Algeria introduced a General Assembly Resolution that the world was flat and that Israel had flattened it, it would pass 100 to 10 with 50 abstentions.”  That’s pretty much what happened the other day.  I wonder whether the European countries that voted for the Resolution knew what a tangled web they were weaving.

Nor was this Resolution a recognition of the two-state solution, since a considerable number of states who voted for it have refused to recognize Israel’s right to exist.  What they were looking for was a one state resolution—that one state being yet another Islamic country that voted for Hamas in the last election and that is likely to be governed by Sharia Law that will not allow Jews or Christians equal rights.

Neither will the General Assembly’s actions move the Palestinians closer to accepting the ongoing Israeli offer to begin negotiations toward a two state solution with no prior conditions.  The Palestinians now have little incentive to negotiate a state, which would require considerable compromise and sacrifice on all sides.  They now think they can get their state recognized without the need to give up the right of return or to make the kinds of territorial compromises necessary for Israel’s security.  The United Nations action will only discourage the Palestinians from entering into serious negotiations with Israel.

The United Nations’ action will also incentivize Hamas to continue firing rockets into Israel on a periodic basis in order to provoke Israeli retaliation.  Many in Hamas believe that the recent fighting in Gaza actually helped the Palestinians get more votes in the General Assembly.  They are certainly taking some of the credit for these votes.

All in all, the United Nations vote will make it harder to achieve a peaceful two state solution, acceptable to both sides.  But that has been the history of General Assembly actions with regard to Israel, beginning with the lopsided vote in 1975 that challenged Israel’s very existence by declaring Zionism—the national liberation movement of the Jewish people—to be a form of racism.  Although the General Assembly was ultimately pressured into rescinding that blood libel, its bigoted spirit still hovers over numerous United Nations agencies which continue to regard Israel as a pariah.  It could be felt in the General Assembly hall when so many countries that refused to recognize Israel voted to recognize Palestine.

This is all a prescription for continued warfare, lawfare and enmity.  It is not a prescription for resolving a complex and difficult issue in a realistic manner.  But what else is new at the United Nations!

6 Comments

  • Dear Mr Dershowitz, you write about the Legal Implications of the UN resolution as if these are undesirable outcome for all. Those who voted for the resolution, indeed want and wish further negative implications for Israel. I’d expect you to delve into the legal ramifications for the Arabs, for example: the annulment of the OSLO agreements due to fundamental breach. Come on Alan, lend us your sharp legal mind.

    • Dear, o h dear.
      Dershowitz still REFUSES to get.
      Two states living in peace next to each other? ABSURD
      What is keeping this learned, smart professor from admitting the truth?

  • Voice of Truth

    Don’t worry, Israel has it all covered. Let the PA just try and take this insanity to court, I promise, it will not turn out like they plan. They best beware of who they are messing with. Any man or nation that comes against Israel comes against the G-d of Israel and no man or nation stands against HIM…. HE wins…. they loose…. that simple. You would think they would learn by now…. Ya Think!

  • Théâtre de l’Absurde! The United Nations didn’t make a move to save Rwanda from its horrific plunge over the edge of darkness. Later, the UN dragged its feet rather than do anything about Darfur. It’s getting hard to tell whether its list of unaccomplishments is longer than it is bloody. Such a mess!

    The United Nations, as an organisation of states, may be uniquely unsuited to protecting the rights of individuals — especially those cowering under the tyranny of ‘popular’ member states.

    Where is the integrity?

  • Yes and why were the Jews in America so quite while all this was taking place. Why were they not demonstrating outside the UN? Why do the Jews in America remain so quite every time the palestinians attack us? Why dont they demonstrate outside the UN and the Whitehouse? The reason is simple, they dont want to rock the boat in America. Heaven forbid that israel should be more important to them than abortion and gay rights,

  • Jon, a Brit in Euroland

    This article, as most I have read in the past week from the word processors of eminent people focus on the inconveniences of a Palestinian State crawling out from under the UN. It seems to me that there is one huge advantage that accrues from this creation of a state, and that is the well established fact in law that states can go to war.

    It does seem quite clear that Hamastan (which may or may not be part of the “palestinian state” recently posited, is at war with Israel. The fact that the PA has declared, through its leader that the Western wall, incorporated by Israeli law into Israel, is actually part of Palestine “state”, seems to suggest that the PA areas are also at war with Israel.

    In a war a beligerant can do whatever is required to end the beligerency of the other party or parties, since it is assumed that a state’s authorities are speaking (even in dictatorships) for their populations. This Israel can bomb or blast them into submission, leaving ramala is the same state that the Allies left Berlin, or Hamburg, or Cologne. States of rubble. This was less legally possible with a non state….

    Thus Israel can rosecute a war with a state until unconditional surrender, leading to war crimes tribunals etc. In the interim it can cut off all power, water and food imports, as has traditionally been done by force or arms intimes of war.

    Israel would also be “entittled”, at its own expence, in preparing a generation long reeducation programme for the survivors of the comming, or current war, just as Japan and Germany were reeducated into democracy by the allies….

    Perhaps this might be worth considering….

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