The EU Ambassador to Israel refused to debate an international scholar on the legality of the Jewish communities in Judea and Samaria, instead responding with a one-way communication that closes the door to further discussion.

International Law Professor Eugene Kontorovich – who was able to succinctly counter the European Union (EU) position on the legality of Israel’s communities in Judea and Samaria via email communication with this writer – had been prepared for a far more extensive discussion.  But it was not to be.

Weary of public statements made by EU Ambassador to Israel Lars Faaborg-Andersen regarding the alleged fact that the “settlements” are “illegal,” my Legal Grounds Campaign Co-Chair, Jeff Daube, and I decided to invite the ambassador to debate Kontorovich, on the issue of Israel’s legal rights in Judea and Samaria.  We took great pains to be certain that he knew of our offer.  Between March 30 and April 17, Legal Grounds extended the invitation four times – by fax, email, postal mail, and then hand-delivered to the ambassador’s office.

After almost a month of silence, Faaborg-Andersen indicated that he did not wish to debate.

Clearly, he believed this would be the end of the story.  But it was not.  A number of individuals, who had learned from Legal Grounds about the ambassador’s refusal to bring the issue to a public forum, wrote to him, urging him to change his mind.  After an interval of time, they received a response from the ambassador – exactly the same communication was sent to everyone.

“The Mandate for Palestine was terminated by Britain on 14 May 1948,” begins his response.

“The Mandate had assigned Britain with the responsibility to establish a Jewish national home in Palestine.”

But, claims Faaborg-Andersen, it did not “promise that the whole of Palestine should be converted into a Jewish national home. [Note: the Mandate did encompass the whole of Palestine.] On 14 May 1948, the State of Israel was established. All EU Member States subsequently recognized the State of Israel within, but not beyond, the 1949 armistice lines.”

How convenient – a one-way communication that closes the door to further discussion. Not only does he not wish to publicly debate, he wrote that he would not welcome “extensive correspondence.”

According to Faaborg-Andersen, the legal situation has “been amply discussed by international law scholars.” But he fails to mention any scholars by name or cite sources, so that interested parties might research the matter for themselves. He makes it sound as if all law scholars agree, when this is hardly the case. Nowhere does he demonstrate why the Palestinian Arabs have a right to lay claim to Judea and Samaria.

‘EU is Set on its Political Position’

While Faaborg-Anderson suggests that the issue is resolved from a legal perspective, we have much reason to believe that the meager and unsubstantiated argument he has advanced is simply what suits the Europeans politically.  The EU is set on its political position (which supports such actions as funding illegal Palestinian Arab housing in Area C), and thus demonstrates no interest in pursuing the legal underpinnings of that position with intellectual vigor.

Kontorovich was quite clear in his counter to the ambassador.  “It doesn’t matter if the Mandate expired,” he explained.  It is “not relevant [to] understanding the self-determination rights of the Jewish people.”

This is because of a legal doctrine known as “uti possidetis juris.”

Kontorovich has co-authored, with Law Professor Avraham Bell, a legal paper entitled Palestine, “Uti Possidetis Juris and the Borders of Israel.”  In their abstract, Bell and Kontorovich note that:

“…Uti possidetis juris is widely acknowledged as the doctrine of customary international law that is central to determining territorial sovereignty in the era of decolonization. The doctrine provides that emerging states presumptively inherit their pre-independence administrative boundaries.

‘Applied to the case of Israel, uti possidetis juris would dictate that Israel inherit the boundaries of the Mandate of Palestine as they existed in May 1948. The doctrine would thus support Israeli claims to any or all of the currently hotly disputed areas of Jerusalem (including east Jerusalem), the West Bank, and even potentially the Gaza Strip…’

What is more, explains Professor Kontorovich, the Mandate is “valuable as international recognition of Jews being indigenous people of the area.”

Lastly, and not incidentally, the professor notes that it is not true that the nations of the EU “recognize Israel within the 1949 armistice lines.” The nations of Europe do not recognize Israel’s right to western Jerusalem, which was within those lines. This is why they locate their embassies in Tel Aviv.

The Legal Grounds Campaign would have welcomed a debate between Kontorovich and Faaborg-Andersen.  As this is not to be, we have a responsibility to share as broadly as possible the legal counter to the pathetically inadequate and damaging stance of the EU ambassador to Israel.