Leading Int’l Legal Scholar Kontorovich Emphasizes at ZOA New York Event: US Embassy Should Move to Jerusalem

Zionist Organization of America (ZOA) President Morton A. Klein released the following statement:
One of the world’s leading international law and Constitutional law scholars, Northwestern University Law School Professor Eugene Kontorovich, emphasized that it is important to move the U.S. Embassy in Israel to Jerusalem – and in particular, urged moving the U.S. embassy to the eastern portion of Jerusalem, during Professor Kontorovich’s well-attended speech at an event sponsored by ZOA  New York and Safra Synagogue on Thursday January 19, 2017.

Professor Kontorovich noted that the best way to combat UN Security Council Resolution 2334 is to combat the false idea that any Jewish presence beyond the 1949 Armistice lines is “illegal.” And the best way to do that is to put the U.S. Embassy in eastern Jerusalem.  European ambassadors will visit and do business there.
Prof. Kontorovich stated: “The PLO was originally widely thought of a terrorist group making outlandish demands.  The way the PLO has stuck to its false narrative should be a powerful lesson for us. We have not even begun to insist on our viewpoint.”  We need to proclaim and insist upon our truthful claim of sovereignty. When someone says that it is “illegal” for Israel to allow Jews to live in eastern Jerusalem or Judea/Samaria, he is really saying that “the areas from which Jordan expelled the Jews in 1949 need to be depopulated of Jews forever.”

Israel has Lawful Sovereign Right to Judea/Samaria and All of Jerusalem:  Professor Kontorovich explained that Israel has the lawful sovereignty rights to all of the former British Mandate for Palestine, from the river to the sea – including Israel within the 1949 Armistice lines as well as Judea/Samaria and all of Jerusalem.  (The original mandate also included the area that is now Jordan – but Britain gave that area to the Hashemites.)
Prof. Kontorovich explained that under a well-established, clear (“hard and fast”) border-determination rule of international law, called uti possidetis juris (Latin for “as you possess under law”), a new country (in this situation, Israel) is entitled to the borders of the preceding top level administrative mandated territory (in this situation, the British Mandate for Palestine).   The international legal entitlement to the full mandatory borders applies despite the fact that various sectarian groups are frequently unhappy with the new country’s borders.
(As ZOA and others have also pointed out, in addition, the British Mandate was a trusteeship, specifically held in trust for the reestablishment of the Jewish national home.)

The fact that Jordan illegally occupied Judea/Samaria and eastern Jerusalem for 19 years (after invading Israel in 1948-1949), did not alter Israel’s sovereign rights to these areas. UN General Assembly Resolution 181 (the 1947 partition resolution) also did not alter Israel’s sovereign rights to the entire mandate area.  UNR 181 specifically stated that it was a (nonbinding) recommendation.  The UN General Assembly also did not have the power to impose partition without the agreement of the parties, and the Arabs rejected UNR 181. (See also “Myths and Facts.”)

The Jewish Presence in Judea/Samaria is Legal:   Professor Kontorovich also stated that it is a “core value” that the Jewish presence in Judea/Samaria is legal, and explained:  When someone says that it is “illegal” for Israel to allow Jews to live in eastern Jerusalem or Judea/Samaria, he is really saying that “the areas from which Jordan expelled the Jews in 1949 need to be depopulated of Jews forever.”  However, in fact, there no legal obligation to keep Judea/Samaria depopulated of Jews.

The false claim that Israeli communities (a/k/a “settlements”) are “illegal” comes the misapplication of a sentence in an inapplicable, obscure treaty: the Fourth Geneva Convention, Article 49, paragraph 6 – which states that “The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.”
The Fourth Geneva Convention is inapplicable because: (1) the Convention is a specialized treaty among the “high contracting parties” – which applies to wars between the countries who signed this treaty.   The Palestinian Authority is not a signatory.  (2) Israel is not an “Occupying Power” because Israel has the sovereign right to Judea/Samaria.  Judea/Samaria is not the territory of another sovereign country that signed the treaty.

Moreover, even if, for argument’s sake, the Fourth Geneva Convention applied to a non-signatory, and even if Israel were considered to be an “occupying power” of “occupied territories,” the Fourth Geneva Convention has never been interpreted to impose upon any other occupying power an obligation to prevent its citizens from moving into its occupied territories.  No other occupying power has ever been asked to cleanse its citizens’ presence from its occupied territories, or to stop providing services to citizens in its occupied territories.  No one has ever complained that there was a violation of international law when 70,000 Russians moved to Crimea; 200,000 to one million Vietnamese moved to Cambodia; or many Americans moved to Allied-occupied West Berlin.  Numerous other examples abound – and the Fourth Geneva Convention has never been applied to any of these situations the way that Israel’s opponents are attempting to apply the Convention to Israel.

No occupying power has been accused of international law violations for providing services to its territories.  Only Israel is accused of violating international law for providing water and roads to Judea/Samaria.   (In fact, the Fourth Geneva Convention affirmatively requires occupying powers to administer and provide services to the occupied territories.)

In order for a rule to be considered a rule of international law, the rule must be applied universally.  Law is a system of general rules, applied to all applicable situations.  If a rule is only applied to one country, that “rule” is not international law.  Israel is not violating international law.  Rather, Israel is being singled out with a novel interpretation of an inapplicable treaty.

UNSCR 2334:   Prof. Kontorovich also explained that the UN Security Council does not have the authority to make or interpret international law.  Nevertheless, UNSCR 2334 will have a practical impact, and serve as a rallying cry for international boycotts against Israel.  The best way to combat this is on the ground:  by moving the U.S. Embassy to the eastern portion of Jerusalem, and insisting upon Israel’s lawful sovereign rights.