Israel’s “Birth” May Surprise You

Israel’s “Birth” May Surprise You

What you didn’t know about Israel’s modern national birth may surprise you. I wrote about the intriguing legal case for its existence, which is excerpted below from my chapter in the recently released book, Israel, the Church and the Middle East – a Biblical Response to the Current Conflict, Darrell L. Bock and Mitch Glaser, editors, Kregel Publications (2018) with contributions by other scholars & experts as well. Here’s my take –

It was May 1948. The profound question facing the member nations of the United Nations was the existence of the state of Israel. The Arab League nations vehemently opposed it and emotions were running high. In the White House, President Harry Truman was committed to the idea of Israel’s statehood, a position backed by political precedent. After all the precursor to the UN had previously recognized a Jewish homeland in “Palestine,” and following that, a joint resolution was passed in both houses of the United States Congress that expressed the same sentiment.
But Truman’s Secretary of State had a very different idea. George Marshall favored a United Nations “trusteeship” to be imposed over the territory of present-day Israel and tasked his State Department to pursue it within the UN.

Enter Philip Jessup, a former American professor of international law and the U.S. Ambassador to the United Nations. As Jessup hustled toward the podium in the UN’s General Assembly, he held a message in his hand. Ruth Gruber, a New York Times reporter present at the time describes the scene this way:
“I knew, after talking to his aides, that in [Jessup’s] hand he had a speech supporting trusteeship, not statehood, for Israel. The State Department was about to betray the president.”
But Jessup never made it to the podium, nor did Secretary Marshall’s message. Jessup was greeted with an Associated Press dispatch reporting that President Harry Truman had just beaten the State Department to the punch, publicly declaring that the United States of America formally recognized the State of Israel.

Eventually, the UN would follow suit.

But that long hope-for and prayed-for achievement would not have been possible had it not been for the delivery and publication of a single piece of correspondence from years before. On November 2, 1917, a letter from British Foreign Secretary Lord Arthur James Balfour was addressed to Lord Walter Rothschild, a leading British Zionist. Commonly known now as the “Balfour Declaration,” the letter declared, “His Majesty’s Government view with favour the establishment in Palestine of a national home for the Jewish people, and will use their best endeavors to facilitate the achievement of this object …”

The Declaration, however, did not spring full-blown from a vacuum. It had been the product of a labyrinth of negotiations both in England and in other countries, and was preceded by more twists and turns of intrigue than a spy novel. It was, in essence, a single document that on closer examination bore the fingerprints of leaders and nations from around the world. Which is one of the most curious, yet profound aspects of the Declaration. It was not a “legal” document in the strict sense, as England had no legal authority at the time over either the land or the people that were the subject of the letter.
On the other hand, it became the political prologue for the Israel statehood drama that would eventually unfold. The language of the Balfour Declaration was adopted a few years later by the League of Nations, the predecessor to the United Nations which as we have seen was persuaded to recognize Israel as a state, which was then seconded by the American Congress, and two decades later President Harry Truman put the United States on record as recognizing the State of Israel, with the UN finally joining also.

The Balfour Declaration, which initially constituted no law in itself, grew from an acorn into an oak, ultimately becoming both root and branch of Israel’s ultimate recognition under international law. The government of Great Britain, including Prime Minister May, still honors that document.

But this is where the story suddenly takes a troubling turn. Over the decades that followed the UN vote, criticism of Israel has grown steadily. It is now at a fever pitch. The UN and other groups consistently allege a parade of international law violations against Israel. In November 2016, for instance, UN committees adopted ten different resolutions against Israel in a single day.

Of course, international law can play a role as a basis to collectively contain lawless nations like Iran or North Korea or to minimize the collateral damage from failed states like Afghanistan. But the broad, unwieldy nature of international law makes it a blunt axe, best reserved for use against outlaw regimes, rather than nations like Israel that display a history of self-governance under the rule of law. Additionally, international law is largely unenforceable unless the nations at issue have either previously agreed to make it binding or the day ever arrives when global law is actually mandated. But that doesn’t stop allegations against Israel from being used strategically, applying geopolitical pressure on the tiny country.

Current international law threats against Israel invariably relate to the Palestinian people or the Palestinian Authority. For example, a 2016 UN Security Council resolution, where the US abstained rather than vetoed, repeated an old refrain that Israel was in “flagrant violation of International law” by allowing Jewish settlements in the “West Bank” area of Israel ever since its victory in 1967 during the Six Day War. Yet, Israel’s military decimation of the impending invasion from its Arab neighbors had been in self-defense. Keeping control of the sector to the west of the Jordan River that it gained in that war, including Jerusalem, was equally necessary for Israel’s security.

UN resolutions like this illustrate how the use of the broad axe of international law can swing past the facts, particularly those that are politically incorrect.
I agree with the assessment of fellow lawyer Robert Nicholson who describes the international law charges against Israel as “notoriously ambiguous.” The UN’s West Bank resolution not only ignored the fact that Israel defended itself against “existential threats from the surrounding Arab states,” it was also based on shaky international law grounds: the West Bank could reasonably qualify as a “disputed” rather than an “occupied” territory where different legal rules apply, and even if deemed “occupied,” Israel’s control over it still comports with international law standards.

Michael Oren, former Israeli ambassador to the United States and currently a member of the Knesset and Deputy Minister in the Prime Minister’s Office, crystalizes the issue: “ [T]he Israeli-Palestinian conflict has never been about territory Israel captured in 1967. It is about whether a Jewish state has the right to exist in the Middle East at all.”

Israel’s right to exist is the relevant international law question. For if it is a legitimate state, then it should be accorded the same respect for its sovereign decisions and actions as any other nation on the earth.
To address that issue, I suggest the exact international law standard advanced in 1948 by the United States and uniformly accepted by other nations of good will. Unlike much of international law, that standard remains relatively clear, comprised of only four conditions that needed to be met in order to validate Israel’s claim for statehood.

Among the statements describing the four traditional requirements under international law for the existence of “statehood,” none was more concise or timely than the declaration made by the United States representative to the United Nation’s Security Council, Philip C. Jessup. He delivered it in December of 1948 eight months after the U.S. State Department abandoned its “trusteeship” idea in the wake of President Truman’s public recognition of Israel’s right to exist. This time Jessup made it to the podium, though his address wasn’t one of vague geopolitics or diplomatic compromise. Instead, it was a statement of the four basic international law principals for statehood and a declaration that Israel satisfied all four of them.

Jessup said:
“We are all aware that, under the traditional definition of a State in international law, all of the great writers have pointed to four qualifications: first, there must be a people; second, there must be a territory; third, there must be a government; and, fourth, there must be a capacity to enter into relations with other states of the world.”
Referring to those standards of international law that are implied in the United Nations Charter, Jessup’s concluded:
“My government considers that the State of Israel meets these Charter requirements.”

During debate, Jessup mentioned the near universal acceptance among the state members that three out of the four international law conditions for Israel’s statehood were clearly met, with the remaining dispute limited to the Arab nations’ complaints about Israel’s “territory.”

Sadly, in the years since then, many of the accusations against Israel have exceeded rational bounds. If objectivity is to prevail, and if international law is to be the measure, then what better standard to use than the same test that was applied to Israel’s status in 1948?

As we are about to see, all four of the established international law elements for statehood and the right to exist as a sovereign nation were not only satisfied by Israel in 1948, they continue to be met by Israel today …

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