UN Security Council resolution 2334 of December 23, 2016 is designed to redivide Jerusalem and to stamp Israeli authority, currently exercised throughout the city, as illegal. In effect, it would put the Jewish Quarter, as well as the Temple Mount and the Western Wall, under Muslim authority, and make all Jewish residents in the outlying suburbs of Jerusalem into squatters earmarked for expulsion, since the resolution marks them as “settlers.”
In short, the heart of Jerusalem, with its Jewish holy sites, would become stripped of its Jewish population. The divided city would become reminiscent of the 19-year embargo imposed on the eastern part of the city from 1948 to 1967, when Jordan exercised suzerainty and Jews were expelled and not even allowed access to their holy sites.
An even more graphic example of Jewish expulsion from Jerusalem occurred in the time of the Crusaders, who pillaged and destroyed Jewish communities on their way to the Holy Land, and upon seizing Jerusalem butchered the Jewish residents therein and proclaimed that no Jew was to set foot again in the Holy City.
It is a sad reflection on the Obama administration that it allowed a resolution with such fateful consequences to be adopted by the world body that is charged with maintaining international peace and security.
Had president Barack Obama fully appreciated the implications of the resolution, he could at least have secured the removal of the references to the June 4 line, which amount to an attempt to impose new lines on the parties to which they had never given their sanction. It is less than amazing that in this day and age, any world leader, let alone a president of the United States, could endorse, even implicitly, a program to dislodge thousands of Jews from their homes in Jerusalem. And this in the face of genocidal mobilization by a relentless foe that for 70 years has not desisted for a moment from its murderous campaign to destroy the Jewish state.
Several previous American presidents adopted a very different attitude in relation to the Arab-Israeli dispute.
In his long address attempting to justify the American abstention in the Security Council vote, Secretary of State John Kerry claimed, time and again, that condemnation of settlements and allotting eastern Jerusalem to the Palestinians is in accordance with long-standing American policy.
He declared: “Every US administration since 1967... has recognized east Jerusalem as among the territories that Israel occupied in the Six Day War.” Likewise, Ambassador Samantha Power’s essay, after the Security Council’s vote, stated that “for nearly five decades... through the administrations of presidents Lyndon B. Johnson” through to Obama, have sent messages ”that the settlements must stop.”
This simply does not concur with the facts. There were no settlements during the Johnson administration and he never sent any such message.
In outlining “five great principles of peace” Johnson said there must be “adequate recognition of the special interest of three great religions in the holy places of Jerusalem.” It has been noted that this formula relates to interest in holy places, but does not bear on Israeli administration in the city.
The approach was changed under the Nixon administration, which tried to attribute the term “Israeli occupation of Jerusalem” to the Johnson administration. This provoked a vigorous denial from Arthur Goldberg, US ambassador to the UN under president Johnson, that appeared in The New York Times. He declared: “This is entirely inaccurate... At no time... did I refer to East Jerusalem as occupied territory.”
Clearly, Kerry’s and Powers’ references to the Johnson administration are inaccurate.
Moreover, president Reagan, shortly after he entered the White House, stated that settlements in the territories were not illegal. This was supported then by a comprehensive legal analysis drafted by former US under-secretary of state and former dean of Yale Law School Eugene Rostow, who declared categorically that, on the basis of Security Council Resolution 242, “Settlement was never illegal.” As a presidential candidate, Reagan had acknowledged Israeli sovereignty over all of Jerusalem. In 1982, president Reagan published a peace plan. On that occasion, Reagan said: “I have personally followed and supported Israel’s heroic struggle for survival since the founding of the state of Israel 34 years ago: in the pre-1967 borders, Israel was barely 10 miles wide at its narrowest point.
The bulk of Israel’s population lived within artillery range of hostile Arab armies. I am not about to ask Israel to live that way again.”
It is interesting to observe that the editorial of a noted newspaper described the Reagan peace plan as “promis[ing] a thinly disguised Israeli domination over all of Jerusalem.”
This paper was not The Jerusalem Post.
It was the New York Times. Thus, talk of consistent American policy under each administration since 1967 in defining east Jerusalem as occupied territory is simply not borne out by the facts.
Fortunately for Israel, resolution 2334, with its proclamation that the definitive boundary is that of June 4, ’67, is simply an exercise in futility in international law, for several reasons.
First of all, noted authorities on international law, including former American president of the International Court of Justice Stephen M. Schwebel, have declared that Israel’s sovereign claim to all of Jerusalem is indefeasible. Furthermore, 2334 contravenes Security Council Resolution 242, the bedrock foundation of all resolutions in the search for Middle East peace, supported also by resolution 338, which confirmed that Israel is entitled to “recognized and secure boundaries.” This right that accrued to Israel cannot be nullified by a wave of the hand. Moreover, 2334 in its preamble “reaffirms” the aforementioned resolutions, so any rights accruing to Israel under those resolutions are reaffirmed automatically by 2334. The Security Council can, of course, alter an earlier resolution, but it cannot deprive a state of its just rights, territorial or otherwise, based on and affirmed by the earlier resolutions.
And in this regard, it is imperative that members of the Security Council bear in mind the limits of their own authority. It was stated most bluntly by the eminent British judge on the International Court of Justice Sir Gerald Fitzmaurice. He declared that the Security Council, even when acting genuinely for the preservation of peace, is not empowered to effect legal changes “in territorial rights whether of sovereignty or administration.... It was to keep the peace, not to change the world order, that the Security Council was set up.”
The attempt of 2334 to fix a boundary of June 4, 1967 between Israel and a Palestinian entity is in accordance neither with United Nations Charter law nor international law. It is not binding on anyone, least of all on Israel.The author is the James G. McDonald professor emeritus of American history at the Hebrew University of Jerusalem and is the author of ‘Jerusalem in America’s Foreign Policy.’