Eugene Kontorovich: “Resolution 242 Revisited”: new research on Security Council’s approach to Israel-Arab conflict
My new article, “Resolution 242 Revisited: New Evidence on the Required Scope of Israeli Withdrawal” has just been published in volume 16 of the Chicago Journal of International Law, and is available here. 242 may be the Security Council’s most famous resolution, yet amazingly, there are entire veins of evidence about its meaning that have remained untapped.Lawfare bulwark: Israel has become a convenient target
The article happens, fortuitously, to be quite relevant to the drama that will likely unfold in the Security Council this fall. So let me say a few words here about what the evidence developed in the paper suggests about these developments. (When I began working on the article last year, I did not know anything about a potential new Council resolution.)
France will reportedly soon introduce a new proposed resolution about the Israeli-Arab conflict in the Council. President Obama has repeatedly hinted that he might not veto such a resolution.
One thing the paper makes clear is that Res. 242 represented a territorial compromise, with accommodations to Arab and Israel positions. The French resolution – which mandates a withdrawal to the 1949 Armistice Lines – would specifically undo the parts of that compromise that were in Israel’s favor, and essentially “reverse” 242, replacing it with the resolution demanded by the U.S.S.R and Arab states in 1967. If the U.S. allows this to happen, it would be a fundamental reversal of 50 years of Middle East diplomacy.
About two months ago, Professor Eugene Kontorovich stood before a special US congressional committee and laid out what he sees as the irrationality of boycotting Israel.Are Abbas’s threats to quit part of a ploy to embarrass Israel?
Kontorovich, 40, is considered a world-class expert in constitutional and international law, and deals mainly with the issue of international boycotts. Kontorovich said the committee members sought deeper understanding of boycotts against Israel and so invited him to speak.
The professor delivered a comprehensive overview: Among other things, Kontorovich detailed a series of laws legislated in the US in the 1970s, which stated that Arab League pressure to boycott Israel should be rejected. At the end of the meeting, says Professor Kontorovich, the committee expressed unequivocal opposition to boycotts of Israel.
“The problem is that now the boycott is not led by Arab countries, but by the European Union,” he explains. “Still, the Americans listened carefully, and I am convinced that my words convinced them that boycotting Israeli companies’ goods is a move that is dangerous for the free world no less than for Israel.
Is that also an empty threat? Possibly. If Abbas were to declare Palestine an occupied state, ties between Israel and the PA wouldn’t end that very day. But the move would undoubtedly embarrass Israel in the international arena and beyond, and raise serious doubts about the Netanyahu government’s continued cooperation with the PA. It’s also possible that the declaration would lead to a resolution echoing the same content in the Security Council, seriously complicating things for Israel.Israel unfazed by PA threat to end Oslo accords, declare Palestine occupied state
In the meantime, senior PLO and Fatah officials are gearing up for the Palestinian National Council. Senior members of Fatah are competing for three spots reserved for the movement in the PLO Executive Committee — including one for Abbas if he ultimately decides to run.
Another three spots are reserved for independent contenders who are also likely to be close to the PA president.
After all is said and done, his position will only be strengthened after the elections.
And who is running for the rest of the seats? As one senior member of the Executive Committee, Tawfil Tirawi, put it, “Who isn’t?”
Everyone, it seems, wants a seat at the table of what is considered, at least symbolically, as the international Palestinian leadership.
“It’s an empty statement,” said Alan Baker, a retired Israeli diplomat and former legal adviser to the Foreign Ministry. “I don’t think it has any significance whatsoever. Nothing Abbas says, no declaration he makes at the UN, will change anything on the ground.”
The only thing it would achieve, Baker said, is to invalidate his status as president of the PA, as well as the legitimacy of the Palestinian parliament and courts. “It would also open up the opportunity for Israel to do whatever it deems necessary to protect its security and political interest, and could even cause possible termination of security and economic cooperation and other measures that are intended for the benefit of the Palestinian people.”
Is it even possible for Palestine to become a “state under occupation”? In his speech in New York later this month, Abbas will point to the General Assembly’s 2012 decision to accept “Palestine” as a non-member observer state and argue that Israel refuses to end the occupation of his state.
However, some argue that only existing states can be considered occupied, such as France during World War II or, more recently, Ukraine’s Crimea, which was occupied by Russia. But “Palestine” seeks to achieve statehood while under occupation, a situation without historical precedent. A state can only become “occupied” if parts or all of the territory it controlled is in effective control of another power, some legal scholars argue. That would not be the case here.
The Palestinians, however, are likely to argue that a sovereign “Palestine” existed before the 1967 Six Day War, when Israeli captured the West Bank and Gaza Strip, even though that appears to be a difficult position to defend among international law scholars.