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Kerry Scorched by Legal Expert for False ‘Settlements’ Narrative (UPDATED)

Kerry's gloves came off last week, now former legal counsel to the Israeli Ministry of Foreign Affairs removed his. The difference? The Israeli's speech sans gloves are steeped in law and fact.

Former legal counsel to the Israeli Foreign Ministry sent a no-holds-barred letter to US Secty State Kerry

Former legal counsel to the Israeli Foreign Ministry sent a no-holds-barred letter to US Secty State Kerry
Photo Credit: Lori Lowenthal Marcus

UPDATE The text of the letter is reproduced at the bottom of this article

Former Israeli Ambassador and legal counsel to Israel’s Foreign Ministry Alan Baker sent a blistering letter to U.S. Secretary of State John Kerry on Friday.

Baker did not mince words.

After listening to you declare repeatedly over the past weeks that ‘Israel’s settlements are illegitimate,’ I respectfully wish to state, unequivocally, that you are mistaken and ill advised, both in law and in fact.

Israel too can take off the gloves when shoved so far against the wall it becomes clear there is no one at her back but that wall.

Baker lays out the facts which anyone involved in Middle East diplomacy should know better than they know the back of their hands.  The so-called “settlements,” i.e. places where Jews live in previously non-sovereign territory won in a defensive war are certainly not de facto or de jure “Palestinian land” or promised for any potential future state of “Palestine.”

Baker states the what-should-be-obvious fact that ownership of that land remains an issue to be negotiated in the permanent status negotiations, as agreed to in the Oslo Accords as well as in the 1995 Israeli-Palestinian Interim Agreement, as witnessed and signed by former U.S. President Bill Clinton, as well as representatives of the EU, Russia, Egypt, Jordan and Norway.

Baker continued,

Your statements serve to not only to prejudge this negotiating issue, but also to undermine the integrity of that agreement, as well as the very negotiations that you so enthusiastically advocate.

Baker also gives short shrift to the square pegging of Israel into the round hole of the 49th Article of the Geneva Convention. He points out the obvious, but ubiquitously-ignored fact that the relevant article applied to the Nazis forced mass transfer of populations. Such a situation has no relevance to the expansion of a population into open areas with no gun to their heads.  The notion of any parallel between Israelis moving into open areas and the Nazis forcing those they conquered into land controlled by others is repugnant, yet repeated incessantly by those who are either ignorant of history or merely haters of Israel, take your pick.

After several more paragraphs of clear explanation as to why the position taken by the U.S., and so much of the world, is factually and legally wrong, Baker concludes with this closing salvo:

By your repeating this ill-advised determination that Israel’s settlements are illegitimate, and by your threatening Israel with a “third Palestinian intifada” and international isolation and delegitimization, you are in fact buying into, and even fueling the Palestinian propaganda narrative, and exerting unfair pressure on Israel. This is equally the case with your insistence on a false and unrealistic time limit to the negotiation.

As such you are taking sides, thereby prejudicing your own personal credibility, as well as that of the US.

With a view to restoring your own and the US’s credibility, and to come with clean hands to the negotiation, you are respectfully requested to publicly and formally retract your determination as to the illegitimate nature of Israel’s settlements and to cease your pressure on Israel.

There has been no response, as yet, from Secretary Kerry or anyone at the State Department.

Whether there is any response from Washington or not, the points made clearly and succinctly by Amb. Baker are a welcome and too long absent dimension to the general discussions about the “settlements.”  That discussion has been dominated by a narrative devoid of legal, factual and historical accuracy.

False narratives repeated endlessly by ever-increasing numbers of people, nations and diplomats do not make those narratives any more true. Majority does not rule when it comes to facts or to law.

***

Here is the text of the letter from Amb. Alan Baker to Secretary of State John Kerry, dated Nov. 8, 2013

Alan Baker, Attorney, Ambassador (ret’)
P.O.B. 182, Har Adar, Israel 90836
Tel: +972-54-3322643
E-mail: ambassador.alan@gmail.com

The Hon. James Kerry, U.S. Secretary of State,
The State Department,
Washington D.C.

November 8, 2013

Dear Secretary Kerry,

After listening to you declare repeatedly over the past weeks that “Israel’s settlements are illegitimate”, I respectfully wish to state, unequivocally, that you are mistaken and ill advised, both in law and in fact.

Pursuant to the “Oslo Accords”, and specifically the Israel-Palestinian Interim Agreement (1995), the “issue of settlements” is one of subjects to be negotiated in the permanent status negotiations. President Bill Clinton on behalf of the US, is signatory as witness to that agreement, together with the leaders of the EU, Russia, Egypt, Jordan and Norway.

Your statements serve to not only to prejudge this negotiating issue, but also to undermine the integrity of that agreement, as well as the very negotiations that you so enthusiastically advocate.

Your determination that Israel’s settlements are illegitimate cannot be legally substantiated. The oft-quoted prohibition on transferring population into occupied territory (Art. 49 of the 4th Geneva Convention) was, according to the International Committee Red Cross’s own official commentary of that convention, drafted in 1949 to prevent the forced, mass transfer of populations carried out by the Nazis in the Second World War. It was never intended to apply to Israel’s settlement activity. Attempts by the international community to attribute this article to Israel emanate from clear partisan motives, with which you, and the US are now identifying.

The formal applicability of that convention to the disputed territories cannot be claimed since they were not occupied from a prior, legitimate sovereign power.

The territories cannot be defined as “Palestinian territories” or, as you yourself frequently state, as “Palestine”. No such entity exists, and the whole purpose of the permanent status negotiation is to determine, by agreement, the status of the territory, to which Israel has a legitimate claim, backed by international legal and historic rights. How can you presume to undermine this negotiation?

There is no requirement in any of the signed agreements between Israel and the Palestinians that Israel cease, or freeze settlement activity. The opposite is in fact the case. The above-noted 1995 interim agreement enables each party to plan, zone and build in the areas under its respective control.

Israel’s settlement policy neither prejudices the outcome of the negotiations nor does it involve displacement of local Palestinian residents from their private property.  Israel is indeed duly committed to negotiate the issue of settlements, and thus there is no room for any predetermination by you intended to prejudge the outcome of that negotiation.

By your repeating this ill-advised determination that Israel’s settlements are illegitimate, and by your threatening Israel with a “third Palestinian intifada” and international isolation and delegitimization, you are in fact buying into, and even fueling the Palestinian propaganda narrative, and exerting unfair pressure on Israel. This is equally the case with your insistence on a false and unrealistic time limit to the negotiation.

As such you are taking sides, thereby prejudicing your own personal credibility, as well as that of the US.

With a view to restoring your own and the US’s credibility, and to come with clean hands to the negotiation, you are respectfully requested to publicly and formally retract your determination as to the illegitimate nature of Israel’s settlements and to cease your pressure on Israel.

Respectfully,

Alan Baker, Attorney, Ambassador (ret’),
Former legal counsel of Israel’s Ministry for Foreign Affairs,
Former ambassador of Israel to Canada,
Director, Institute for Contemporary Affairs, Jerusalem Center for Public Affairs,
Director, International Action Division, The Legal Forum for Israel

Copy:
H.E. Daniel B. Shapiro, US Ambassador to Israel,
71 Hayarkon Street, Tel Aviv, Israel 63903

About the Author: Lori Lowenthal Marcus is the US correspondent for The Jewish Press. She is a recovered lawyer who previously practiced First Amendment law and taught in Philadelphia-area graduate and law schools.


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84 Responses to “Kerry Scorched by Legal Expert for False ‘Settlements’ Narrative (UPDATED)”

  1. its all fake, arab actors demand access to israeli terrirory it wont happen.

  2. Sue Johnson says:

    Truths hurt sometimes. Especially when they make the US look bad. But if the shoe fits—-

  3. The truth is the truth. Period!

  4. Robert Beck says:

    These six things doth the Lord hate, yea seven are an abomination unto him: A proud look,a lying tongue, and hands that shed innocent blood, a heart that deviseth wicked imaginations, feet that be swift in running to mischief, a false witness that speaketh lies and he that soweth discord among the brethren

  5. Greg Hampton says:

    Facts do not matter to progressives…they certainly do nt matter to Kerry since his Vietnam days.

  6. Harvey Friedman says:

    YOU CANT TRUST KERRY ON ISRAEL HE IS EMBARRESED BY HIS JEWISH BLOOD AND OBAMA IS JUST TO WILLING TO SELL OUT ISRAEL> ITS TIME THAT WE AS JEWS SHOULD HAVE ANOTHER BUS TRIP TO WASHINGTON THE SAME WAY WE DID FOR BUSH>

  7. Kerry, like is boss, is a lair.

  8. PRAYER for Kerry to know that he has the blood line of Abraham, for President Obama that he may repent & know that ISRAEL has been called by the creator as HIS first LOVE & the Promise made to Abraham, is a PROMISE!

  9. Pam Striebel says:

    Pray in agreement with you in Jesus Name we pray for light to God to find his way into their hearts.

  10. LURCH SUCKS,,,EVEN AFTER ALL THESE YEARS!!!!!

  11. its Israels land and can.t be divided ,they are not messin with Israel ,they are coming out against GOD

  12. Bruce & Pam Striebel , I truly wonder how stealing other people's land and killing them is totally OK according to your religions, both, what a god you have both with such high ethics and rare morality,,, and by the way did he give you a paper with his promise…!!!..because other people also claim he gave them the same promise

  13. Typical liberal drivel. Kerry is continuing to take notes on diplomacy from Obama. If you say it, that makes it true, the facts be damned. We Americans hear them say and believe it to be the Truth. Well, Israel is not having it! Good for them. God bless Israel!

  14. Sarah Williams says:

    BRAVO! BRAVO! BRAVO!!!!!

  15. John Lunsmann says:

    Mohammed El Batta There is an element of truth to what you say, God promised the land to the descendants of Abraham. Isaac, whose descendants are the Jews & Ishmael whose descendants are the Arabs. The promised land consists of Israel, Jordan, Lebanon & Syria. So who owns what?

  16. Carl Milan says:

    Palestine is not a state or a country…It never has been and never will be

  17. Robbie Goldstein says:

    "Palestinians"???? From their own lips:

    PLO executive committee member Zahir Muhsein made one such statement to the Dutch newspaper, Trouw, in March 5,1977. He said:

    "The Palestinian people does not [sic.] exist. The creation of a Palestinian state is only a means for continuing our struggle against the state of Israel for our Arab unity. In reality today there is no difference between Jordanians, Palestinians, Syrians and Lebanese. Only for political and tactical reasons do we speak today about the existence of a Palestinian people, since Arab national interests demand that we posit the existence of a distinct "Palestinian people" to oppose Zionism."

    On September 13, 1993, the same day Arafat and Yitzhak Rabin signed the “Declaration of Principles” embodying those ideals for which he would later get the Nobel Prize, he explained his motives on Lebanese TV:

    “Since we cannot defeat Israel in war, we do this in stages. We take any and every territory that we can of Palestine, and establish sovereignty there, and we use it as a springboard to take more. When the time comes, we can get the Arab nations to join us for the final blow against Israel.”

  18. Robbie Goldstein says:

    John Lunsmann The Bible explains who owns what in detail, down to tribal territories. G-D gave the Land of Israel to the Jews, and plenty of land to the Yismaelim. They should be satisfied with the lands they were given without trying to take Israel from the Jews.

  19. Sandy Combs says:

    Wise man. Israel must stand it's ground! God is with Israel!

  20. Never was such a thing called the palestinian state.

  21. Don Sebold says:

    The lie called "Palestinian"… Has its foundation in a liar and murderer Arafat..who is presently in the bowels of hell somewhere….cooking like an Arab pastry…Hahahahahaha….Kerry is a traitor,elitist who first has no place at this table outside of the fact he is a puppet for the Arabs,and second turned his back on soldiers during the Vietnam war….so his true credentials are…liar,coward,traitor…..

  22. Kerry is the biggest idiot imaginable. He is almost as stupid as obama.

  23. Sue Brooks says:

    Kerry is a fool. I support Israel.

  24. Kerry is 0bummer's cheap whorrrr.

  25. Scooby Snaxx says:

  26. Kola Finger says:

    Kerry, in my eyes, looks rather as an insane American who is just about to loose his entire sanity. Shouldn't He rather long ago be in ta such place where his hands, mouth, balls, could only touch his willing wife's most sexual desires? Is Kerry out of his mind when dealing with all to much of his abilities?

  27. Best letter ever written to a Sec. of State, and terribly needed to apprise the Obama administration of their failings. The whole Obama administration is mistaken and ill advised, both in law and in fact – on every issue they are involved in.

  28. Gil Gilman says:

    The Hon. JAMES Kerry, U.S. Secretary of State, The State Department, Washington D.C. (emphasis mine)…nice touch…

  29. Whilst paragraph 1 of article 49 of the Fourth Geneva Convention talks about 'forced transfer', paragraph 6 refers only to 'transfer'. Clearly, Israel is not in breach of paragraph 1, but could it be in breach of paragraph 6?

  30. Mohammed El Batta Have you actually bothered to read the article by Baker that prompted this conversation? To say that land has been "stolen" implies that it was previously owned legally by another sovereign state. In the case of the West Bank it wasn't. That territory was previously controlled illegally by Jordan.

  31. Millie Kashuk says:

    Thank You Attorney, Alan Baker, for speaking up to Sec Kerry with the true
    facts……There is no "Palestine"………The US should worry about Iran not Israel…….

  32. Alan Kardon says:

    Mohammed El Batta Do all these "victims" have paper that says this is their land?

  33. Michelle Rod says:

    If Kerry loves the terrorists so much, he should send over some planes to load up these wonderful people and dump them on the Mexican border thus giving them plenty of land and allowing them to continue to do what they do best, using their women and children as shields while bombing their neighbours

  34. Donna Lack says:

    Mr. Baker, please let our Israeli brothers and sisters know that there are so many people here in United States that love and support Israel. We are sickened at Mr. Kerry's words, tossed out so carelessly, last week. He is ignorant, uninformed and in power, which is a frightening combination. Would that he actually deigned to apologize for humiliating the government and people of Israel, a precious nation that has been the truest friend to America. Israel, we love you!

  35. Mark L. Shane says:

    if Kerry even bothers to read the above……… the position for all of us to get is clear.NUTS to kerry

  36. POOR OLD KERRY! I DO REALLY THINK THAT YOU SHOULD APPLY FOR EARLY RETIREMENT, FOR, SOMETHING TELLS ME YOU HAVE THE ONSET OF SENILE DEMENTIA.
    PLEASE, MAKE ROOM FOR REAL, EFFICENT POLITICIAN AND GO TO HELL WITH YOUR ARGUMENTS AND YOUR STUPIDITY.
    GO, SET UP HOME WITHTHE ARABS, THOSE PHILISTINS or, in today's langage, PALESTINIANS, FROM THE HEBREW INTO ENGLISH, INVADERS!
    I WHISH YOU IN ANTICIPATION GOOD RIDDANCE!

  37. Geoffrey, would it not be absurd if the Geneva 4 convention had too separate meanings for one word in one article? In any case, transfer even by itself –without "forced"– implies or connotes that the action is compulsory. Transfer is a transitive verb, as you know. Hence it does not refer to a voluntary action but a compulsory one.

  38. Paul Sutton says:

    Thank you Alan Bakerfor your letter to John Kerry(explaining to him that
    Israel won the war in 1967) He is a hater of Israel as Obama is

  39. The idea of Article 49 as a whole is to protect those subject to transfer [and deportation] by outlawing it. Other articles of Geneva 4 are meant to protect the population of an occupied territory.
    Deportation is seen in comments by Henri Coursier, an int'l law expert, as basically synonymous with transfer. The purpose of the article was to prevent what had happened to Jews during the Holocaust and WW2, when Jews were transferred or deported from many countries to the death camps in occupied Poland.

    In any event, Judea and Samaria are NOT occupied by Israel, as Baker has made clear in other writings, including the Levy Commission Report made to the Israeli govt. Judea, Samaria and the rest of Israel were legally assigned to the Jewish National Home by the San Remo Conference [1920] and the League of Nations [1922]. So Jewish ownership of the land was recognized by international law in those acts.

  40. why have the US citizens, not DEMANDED that Obama fires Kerry immediately, and apologises to Israel for the unfortunate comment by this idiot, Kerry.
    Kerry has given Abbas every reason NOT TO NEGOTIATE, but to make more demands on Israel.
    As Don Sebold said, Kerry was a traitor and coward in the Vietnam war. He lied and was given hero medals.
    The only people who know the truth about this idiot, are those soldiers who he turned his back on. He should have been court marshalled and imprisoned as a coward in a war zone.
    And we all thought that Hilary Clinton was bad. She was an angel in comparison.

  41. So the whole of palestinians are terrorists?

  42. No, the US should worry about Israel, not Iran. Unlike Iran, Israel has nuclear weapons and acts like a rogue state.

  43. Eliyahu Ben Abraham How do those acts have any relevance to men who live outside that society? If the whole rest of the world decides your home is no longer your's, does that make it right?

  44. Kerry is a fool, but I support Palestine and Iran.

  45. What about 'those that call themselves Jews but are not Jews'

  46. Geoffrey Short and what of the people living there?

  47. Alan Kardon Do these victims require said "Paper" to have the self-liberty to afford their own life? Can't they exist as they were?

  48. Saul Yarmak says:

    Important to read this background regarding
    Israel

  49. Hedy Halpern says:

    Thrilled to see this from Alan Baker. Thank you!

  50. ISRAEL SHOULD DECLARE "PERSONA NON GRATA" TO JOHN KERRY.

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