Goodbye San Remo

If you have ever gotten into a discussion with Hasbara agents, invariably, at some point or other of the conversation you will hear the words San Remo. The argument amounts to a more or less little known legal subterfuge that has been deployed with unwarranted success by the dark forces of the Israeli government to deny that there is an occupation, tout court.

What we may call the San Remo Doctrine was engineered by Jacques Gauthier, a Canadian lawyer in a 2007 doctoral dissertation, “Sovereignty Over The Old City of Jerusalem”. Predicatably, Gauthier has become a hasbara hero among the nations.

The argument is fairly simple: in the San Remo agreement of 1920, the members of the winning coalition in WWI granted sole control of Palestine under British Mandate to Jews. The document incorporated the principles of the Balfour declaration of 1917, which asserts the British crown’s intention of establishing ‘a national home for the Jews in Palestine’. Having these principles later folded into the charter of the League of Nations’ rules of sovereignty (Class A Mandate), Palestine –according to Gauthier and now Levy–is by the standards of international law, unproblematically, for the Jews. Period. Simply put, with a slight of hands, the San Remo Doctrine turns the Balfour Declaration into International Law. Ergo, there is no occupation.

Since 2007, the Gauthier’s maneuver came into the attention of Netanyahu’s apologists. Famously, an email was circulated outlining Gauthier’s position. The doctrine made it into perhaps one of the most important legal documents of the Nethanyahu’s Greater Israel Ethno-Nationalism: the Levy report.

The Levy commission conjured by Netanyahu and led by Edmond Levy, former member of the Israeli Supreme Court was in charge of finding a juridical instrument to sanction the state development of settlements in areas that Israel had agreed to leave and which Israeli jurisprudence itself recognized for decades as occupied territory. Netanyahu seemed to have believe that these areas which were, needless to say, also designated occupied territory by international law, would be fair-game if he could convince the world–including Israelis–that there was indeed no occupation, that the West Bank and East Jerusalem had ‘always’ been Jewish land. The project seemed daring but if successful, the rewards for the Likud would be great and chutzpah would be given a new definition…

And then against all odds, through the usual chicanery, duplicity and reliance on prevarication as a source of political strength Netanyahu and his machine managed to push the San Remo maneuver into the mainstream and started to slowly creep in the international juridical conversation. While Obama and European leaders were concerned with securing their reputation, good name and semblance of honesty in a rapidly changing arab street, Bennett was sitting in Jerusalem openly calling for the annexation of occupied territory.

Now it is important to remember that the San Remo maneuver was not an Israeli project but a Likud project. In fact, the Levy commission deployment of Gauthier’s San Remo doctrine flies in the face of 50 years of Israeli jurisprudence which has indeed treated the land in question as occupied territory. Netanyahu’s maneuver was as much intended to deface Israeli jurisprudence as to violate international standards of sovereignty so as to–using a word that has become quite infelicitously fashionable in political conversations–normalize a ‘Greater Israel’.

Now, what happened in the SC was actually quite momentous and not necessarily for the content of the resolution but because of the place the resolution takes in the unfolding of international jurisprudence. In some sense all the SC did was to restate standing international jurisprudence. But it did so in the face of Netanyahu’s attack on the status quo. The Israeli attack on international law was surreptitious but all the more pernicious for that reason. Obama put an end to it.

In the Security Council, which should never be confused with the UN General Assembly and its other anemic bodies, Obama crushes the San Remo doctrine and Netanyahu’s attempt at making it established international jurisprudence. Obama allowed the world to state clearly that Palestinian territory is occupied and still in conflict.

This should be celebrated and I say this as someone committed to a one-state solution. Obama did not abstain from voting but abstained from vetoing the defense of the international order of jurisprudence that protects the aspirations of the Palestinians and the recognition of their claim. Nothing less. If you blinked, you missed it.

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