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The Road Map & International Law by Dr. Yoram Shifftan
August 15, 2003

It is remarkable that Tony Blair and George W. Bush, who are currently under intense pressure for what some say is a transgression of international law in going to war against Iraq without the blessing of the United Nations, are seeking to be involved in a real transgression of international law.

Setting aside the question of the importance of the settlements, opposition to the Road Map arises from its being a transgression of law in general, and international law in particular, and a violation of basic common sense. A fundamental principle of law is that if a trustee ceases to be a trustee, the purpose of the trust and the rights it confers on the beneficiary persist. This applies whether the beneficiary of the trust is an individual or a nation. Indeed, the rights of nations obtained by virtue of a League of Nations mandate are enshrined in the Charter of the United Nations, and this has also been confirmed by the International Court of Justice.

The Mandate of the League of Nations on Palestine is not only compatible with the settlements, but actually calls for the encouragement and facilitation of "close settlement" by Jews on the lands of all of Western Palestine. The original Mandate included the Golan and Transjordan, but later Jewish national rights there were "withheld" or "postponed". The Mandatory took upon itself to build in Palestine the infrastructure needed for a Jewish national home, which also involved facilitation of Jewish immigration to Palestine and the submission of an annual report to the Council of the League of Nations satisfying the Council that measures had been taken during the year to carry out the provisions of the Mandate. The Mandate forbids the ceding or leasing of the land destined for a Jewish state to the "Government of any foreign Power". All these rights of the Jewish people are currently still valid and binding in international law.

Yet, if the Road Map is implemented, then the continuing obligations of the Mandate will be violated. The Road Map is clearly a transgression of international law. Thus, whereas the Road Map calls for the freezing of settlements and the dismantling of some, international law as expressed in the Mandate calls for the opposite, namely for the facilitation and encouragement of Jewish settlements.

It may be argued that Israel is entitled to give away what belongs to it, just as an individual is entitled in law to give a gift. But here we come to the second major transgression of law and common sense arising from the Road Map. It is a principle of law that the donor of a gift shall do so from his free will and will not be under duress. A gift or a promise made under duress is not binding. It is clear that when George Bush Senior connected the granting of loan guarantees with the settlements, this introduced an element of duress.

Now, duress is the main feature of the Road Map. The requirement, emanating from a campaign of terror against Israel, to create another Palestinian state in Palestine by December 2003 - a requirement that, if fulfilled, will irreversibly take away the national rights of the Jewish people that were valid according to international law for almost a century - is unparalleled in the annals of nations. No nation has been asked to do anything like it. It also introduces a timescale that, in itself, constitutes a major source of duress. This is true in particular in view of Palestinian violations of all the Oslo requirements and the additional violence that erupted following Ehud Barak's generous offer, and also in view of decades of anti-Jewish violence in Palestine.
There should be enough time not only to conduct full internal Israeli discussions on the matter, but also - if Israel were to unwisely decide that it is willing to consider making a gift of the little that remains of its national heritage as recognized by international law, for the sake of 'peace' - to check the sincerity of the other side before any further concessions are made. In view of past experience, this is of paramount importance. The expression of sincerity would need to include a complete cessation of anti-Semitic incitement and the teaching (with success) among the Arab population that the Jews deserve at least one Jewish state, as is indeed also required by international law. Such a re-education program (which is comparable to the de-Nazification program after WWII) would have to be maintained over a number of years, and not simply be a temporary tactical deception of the kind practiced at the beginning of Oslo and which made Israel give so much (out of its own initiative and compelling the Americans to accept it), only to be rewarded by a much worse situation than that existing at the beginning of the process.

Anything short of this would be the imposition on Israel of such a degree of duress as to make any subsequent Israeli commitments not binding in law.