Leonard Fein's ignorance - or malice - in discussing the Levy Report

From Leonard Fein in The Forward:

Considerable attention has been focused these last several weeks on the report of Israel’s Levy Commission. No great surprise: The three-person commission, appointed by Prime Minister Benjamin Netanyahu to render an advisory opinion regarding Jewish settlement in the West Bank, determined that there is no barrier to such settlement and, indeed, that the legality of all such settlements that may have been thought clouded could and should be retroactively affirmed. Essentially, the Commission asserted, as has been noted in all analyses of its report, that the occupation is not an occupation, not according to its detailed analysis of the relevant international law.

Criticism of the report has been widespread and has focused on the devastating consequences were it to become state policy. But there’s a prior question: Is the report’s analysis correct?

The report tells a detailed history that begins with the Balfour Declaration (1917), goes on to the San Remo Conference (1920), where groundwork was laid for the League of Nations, goes from there to the award to Britain by the League of Nations a mandate for governing Palestine (1922) and thence to Article 80 of the United Nations Charter, which affirms that all mandate arrangements established by the League were in effect inherited, verbatim, by the UN.

All that history is, with two exceptions, quite accurate. The first exception has to do with interpreting the words of the Balfour Declaration: “His Majesty’s Government view with favour the establishment in Palestine of a national home for the Jewish people.” The Levy Commission, as many observers have over the years, chooses to see “national home” as the equivalent of sovereignty. But the problem with such an interpretation is that the choice of “a national home” (rather than, say, “state” or “the national home of the Jewish people” or, maximally, “the establishment of Palestine as the national home”) was not accidental; it was unambiguously deliberate. Indeed, it was not until 1942, at a conference at the Biltmore Hotel in New York, that the Zionist movement itself formally endorsed Jewish sovereignty — statehood — as it aim.

This is disingenuous. For political reasons, the mainstream Zionist leadership felt it was best to cooperate with Great Britain and as such did not want to publicly go beyond the purposefully ambiguous language of San Remo that said "Recognition had thereby been given to the historical connection of the Jewish people with Palestine and to the grounds for reconstituting their national home in that country." Anyone with any knowledge of the Zionist movement in the 1930s and 1940s know that the Zionists were building the institutions of a full-fledged state in Palestine. (To give a relevant example for today, the Palestine Olympic Committee, founded by Jews [although it included Arabs,] was established in 1934.)

The reason that Biltmore went beyond the minimalist interpretation of San Remo was because the British were violating San Remo's provision to "facilitate Jewish immigration under suitable conditions and shall encourage, in co-operation with the Jewish agency referred to in Article 4, close settlement by Jews, on the land..." The British White Paper of 1939 shut the door on immigration of millions of doomed Jews in Europe and Biltmore reflected the Zionist leaders' political break with Great Britain's betrayal. Fein's neo-minimalist interpretation of San Remo ignores all these facts (actually, he essentially  ignores San Remo altogether to concentrate on the Balfour Declaration, which does not have the same legal weight. Levy's arguments were based on San Remo, not Balfour.)

Fein barrels on:

But set that exception to the side, because the next is the pill that fatally poisons the Levy Commission report. If you’re going to review a dense history, there’s something of an obligation not to end your review in midstream. Here’s what’s missing in Levi: In September of 1947, the British announced their intention to relinquish the Mandate; two months later, on November 29, 1947, the UN, in its Resolution 181, voted to approve the partition of Palestine (by then, the area from the Mediterranean to the Jordan River); the British Mandate formally concluded on May 14, 1948, and within hours, David Ben Gurion and his colleagues announced the establishment of a Jewish state.

Thus, had the Commission told the whole story, it would have had to acknowledge that UN 181 — to which it makes no reference at all — in fact and in law rendered all the earlier history irrelevant. In its place, a decision by the UN that Palestine be divided into two, that there be established side-by-side two states, one with a Jewish majority, the other with an Arab majority.

But, it will be said, UN 181 was legally only a recommendation by the General Assembly; it did not have the force of international law.

Look farther: Much happened in the aftermath of the Partition Resolution and the declaration of Israel’s sovereign independence. A war happened, and was terminated only with cease-fire agreements (not peace treaties). And, critically, in May 1949, after the cease-fire agreements were in place, the UN admitted Israel to membership, making explicit reference to the Partition Resolution and de facto accepting that Israel’s borders had been “amended” by the cease-fire lines (i.e, the “Green Line”). And that was no longer merely a recommendation; it was a binding act.

Really? UNGA 273, that admitted Israel to the UN, says nothing about borders. The word "amended" that Fein puts into quotes as if part of the resolution defines Israel's borders does not exist in 273. Nor does it exist in the UNSC recommendation for Israel to be admitted as a state. In fact, the only UN document referred to in UNGA 273 that even mentions the word "boundaries" is its reference to Israel's declarations and explanations spoken by Abba Eban, which among other things states explicitly that the question of boundaries had not yet been solved.

Fein made this claim up.

Admittedly, UNGA 273 "recalls" the earlier partition resolution in the preamble, but that has no legal weight.  (It also "recalls" UNGA 194, which among other things calls for Jerusalem and Bethlehem to be under UN control. Does Fein consider that international law?) The fact is, as Fein notes and then discards, that UNGA 181 has no status in international law because the Arab states did not accept it. (If they would have, it would be considered an agreement between Israel and the Arab states and would then have legal validity, like a treaty.) But the UN never established borders for Israel, and Israel only had arbitrary armistice lines between 1949 and 1967.

Surely Fein knows this, and yet he says:

The fact that the Arabs opposed 181 and never established a state within its proposed parameters roils the waters but does not change the law: According to Israel’s birth certificate, it is not the sovereign authority in the West Bank. The Zionist movement was Israel’s father; the United Nations was its mother.

Israel exists not because the UN created it - it exists because the Jewish state survived and won a war of annihilation against them. The borders of that state were not defined by the UN - to say it was is simply a lie.

The legal status of Judea and Samaria was not set by the UN either. It certainly never declared it part of a Palestinian state, nor did the UN recognize it as part of Jordan. And Fein knows that as well.

Fein's analysis, in the end, is not only flawed - it is purposefully misleading.

Fein's attempt to find that the Levy report is in error only proves that it is Fein himself who not only omits relevant facts - but he makes them up when it suits him.

His zeal to discredit Levy only ends up discrediting Fein himself.

(h/t EBoZ)