On 16 February 2003, the BBC's Dateline London program featured a live, televised debate on the planned U.S.-led invasion of Iraq. The program's host, journalist Nick Gowing, and distinguished guests including British Foreign Minister Jack Straw, top German and French officials, and former White House Press Secretary James Rubin, all agreed that "the conflict between Palestine and Israel" would have to be solved as part of the overall peace prescription for the region.² This premature reference to "Palestine" places Palestinian claims to the disputed West Bank and Gaza Strip - over which Israel also has longstanding claims - on an equal diplomatic and legal footing with the claims of the State of Israel. In other words, it assigns a legal status to the Palestinian claims that, in point of fact, they do not have. There is no "State of Palestine" at present and there was no Palestinian state controlling the West Bank and the Gaza Strip prior to 1967. But reference to "Palestine" has become so commonplace in recent years that even U.S. President George W. Bush has used the term in his speeches. According to Alan Baker, Legal Advisor to Israel's Foreign Ministry, use of the language "Palestine" contravenes the carefully crafted language in the Oslo Accords and UN Security Council Resolution 242.³

The BBC program is not an isolated instance. Journalists often err regarding essential facts of international law when reporting on Israel's presence in the disputed West Bank and Gaza Strip. New York Times correspondent Steven Weisman reported recently on Israel's obligation to pull out of "occupied" territories according to the U.S. "roadmap." Weisman writes: "Use of the word 'occupied' is considered significant because it implies, at least for some, a full withdrawal by Israel from Palestinian territories it has occupied since the 1967 Arab-Israeli war."⁴

An Associated Press article similarly asserted that: "Security Council resolutions 242 and 338 call on Israel to withdraw from all territory captured in the Arab-Israeli wars of 1967 and 1973."⁵

These frequent references to Israel's legal obligation to withdraw to the pre-1967 borders are inconsistent with UN Security Council Resolution 242 and the Oslo Accords. UN Security Council Resolution 242 of 22 November 1967, which was the basis of the 1992 Madrid peace conference and the 1993 Oslo accords, require Israel to withdraw from "territories" to "secure and recognized borders," not from "the territories" or "all the territories" captured in the Six-Day War.⁶

Lord Caradon, former British Ambassador to the UN and a drafter of Resolution 242, told the Beirut Daily Star on 12 June 1974: "It would have been wrong to demand that Israel return to its positions of 4 June 1967 because those positions were undesirable and artificial. After all, they were just the places the soldiers of each side happened to be the day the fighting stopped in 1948. They were just armistice lines. That's why we didn't demand that the Israelis return to them and I think we were right not to."⁷

Israel's former UN Ambassador Dore Gold also noted: "this deliberate language was the result of months of painstaking deliberations." Gold adds: "Since the Soviets tried to add the language of full withdrawal but failed, there is no ambiguity in the meaning of the withdrawal clause, which was unanimously adopted by the Security Council."⁸

In November 2002, a senior Reuters television producer participating in a media panel discussing news coverage of the Middle East conflict insisted that Reuters was "careful to maintain objective coverage of the Palestinian territories." This author asked whether the foreign news producer meant "Palestinian territories" that were ceded to the Palestinian Authority as part of the Oslo accords. The Reuters executive responded that she meant "all of the West Bank and Gaza."⁹

This pointed exchange illustrates another common reporting error on the conflict. Arafat's PLO was not mentioned in Resolution 242 and had no legal status under that resolution.¹⁰ In fact, the drafters of the resolution did not consider creating a second Arab state west of the Jordan River. They therefore used the carefully chosen term "refugee problem" to refer both to extant Arab (Palestinian) and Jewish refugee claims stemming from the 1948 war and the additional Arab refugee problem created by the 1967 war. Moreover, references to the entire West Bank and Gaza as "Palestinian" territories also contradict the Oslo agreement's Declaration of Principles of September 1993 and the Oslo II Interim Agreement of 1995. Neither agreement requires either Palestinians or Israelis to refrain from the construction of settlements, neighborhoods, houses, roads, or any other similar building projects pending a peacefully negotiated final agreement between the parties.¹¹

All Israeli governments since 1967 have held that Israeli settlements are legal according to the 1907 Hague Convention that permits the administering authority to utilize public land and to enjoy its "usufruct" ("fruits").¹² Moreover, Israeli governments have consistently argued that the 1949 Fourth Geneva Convention, especially Article 49 which deals with population transfer, has no legal applicability to the West Bank and Gaza, where there was no recognized sovereign power before the entry of Israeli forces on 5 June 1967.

The problem of inaccurate reporting of the correct legal context of the conflict raised the ire of New York Times senior editor Joseph Lelyfeld, who issued the following castigation of Times' employees soon after the outbreak of the armed conflict in September 2000: "Three times in recent months we've had to run corrections on the actual provisions of UN Resolution 242, providing great cheer and sustenance to those readers who are convinced we are opinionated and not well informed on Middle East issues."¹³

International news reporting on Jerusalem during the ongoing conflict has centered on Arab and Palestinian claims regarding the "Judaization" of Israel's unified capital, whose eastern half, captured from Jordan in the defensive Six-Day War of 1967, is referred to by much of the international community, including the news media, as "occupied Arab East Jerusalem."¹⁴ Indeed, the underlying assumption in this reporting is that, historically speaking, eastern Jerusalem has always been an Arab city like Damascus or Baghdad. This ignores the fact that Jerusalem has had an overwhelmingly Jewish majority as far back as the mid-nineteenth century, well before the arrival of the British.

A recently released comprehensive study of urban planning and demographic growth in Jerusalem by international human rights attorney Justus Reid Weiner reveals a picture of the city that is substantially different from the Jerusalem perceived by the media and public. Between 1967 and 2000, Jerusalem's Arab population increased from 26.6 percent to 31.7 percent of the city's total populace, while the city's Jewish population decreased accordingly.¹⁵ Arab housing starts also heavily outpaced Jewish building during the same period due in part to "the direct sponsorship of illegal construction by the Palestinian Authority."¹⁶

An October 2002 report by the BBC on its Internet website quoted the reaction of 14 Arab and Muslim news media organizations that were "enraged" over the U.S. Congress's most recent vote to confirm a 1995 congressional decision to recognize united Jerusalem as Israel's capital. One of the quoted sources, Lebanese state television, asserted that such a move would succeed in "'Judaizing' the city's character and falsifying its true identity."¹⁷ The report failed to mention that the U.S. congressional decision was based in part on Israel's Supreme Court decision of 1967 empowering the Eshkol government to administer a unified Jerusalem, and in part on UN Security Council Resolution 242, that did not mention Jerusalem as part of "lands" from which Israel had been requested to withdraw. Former U.S. Ambassador to the United Nations Arthur Goldberg was one of the drafter's of the resolution and he asserted that: "Resolution 242 in no way refers to Jerusalem, and this omission was deliberate....Jerusalem was a discrete matter, and not linked to the West Bank."¹⁸

In fact, news reporting on the conflict over Jerusalem almost uniformly neglects Israel's legal and historical claims to its capital city. According to Israel's former UN Ambassador Dore Gold: "Israel's legal position in Jerusalem originates in the Palestine Mandate by which the League of Nations, the sole source of international legitimacy prior to the United Nations, recognized 'the historic connection of the Jewish people with Palestine' and called for 'the establishment in Palestine of a national home for the Jewish People.'"¹⁹ The Mandate did not treat Jerusalem differently from the rest of Palestine. Despite the fact that the United Nations, the successor to the League of Nations, proposed that Jerusalem be divided as part of a corpus separatum, in General Assembly Resolution 181 of November 1947, the Arab armies' invasion of the fledgling Jewish state in May 1948 rendered UN Resolution 181 a "dead letter."²⁰

Israel's legal claims to a united capital city are also grounded in its being the victor in a war of self-defense against its Jordanian neighbor who, according to the United Nations, violated international law in 1967 by launching a war of "aggression" against the Jewish state, including the bombardment of Jerusalem. Major international legal experts such as former U.S. State Department Legal Advisor Steven Schwebel, who also headed the International Court of Justice at The Hague, further support Israel's position. In 1970, three years after the UN passed Security Council Resolution 242, Schwebel argued that "Israel has better title in the territory that was Palestine, including the whole of Jerusalem (emphasis mine - D.D.), than Jordan and Egypt."²¹

In 1996, Israel decided to open up the Hasmonean archeological tunnel near the ancient Temple Mount in Jerusalem's Old City, and one year later the government decided to approve existing plans to build the Har Homa neighborhood in southeastern Jerusalem. Palestinian spokesmen and a compliant international media vilified these moves as violations of the Oslo accords.²² However, Daniel Taub, General Law Director of Israel's Foreign Ministry and part of the Oslo negotiation team, asserted the legality of Israel's position. "Neither [Oslo's] Declaration of Principles, nor the interim agreement place any strictures on Israel concerning Jerusalem. All questions concerning Jerusalem were left to the permanent status negotiations, which have yet to be held." Taub added that even if the above agreements did apply to Jerusalem, developing archeological sites does not violate the agreements.²³

The "Disputed" Shaaba Farms

Following Israel's unilateral withdrawal from southern Lebanon to the international "Blue Line" in May 2000, UN Secretary General Kofi Annan announced on 25 July 2000 that Israel fully implemented its part of UN Resolution 425. Despite Israel's compliance with international law, news organizations have frequently referred to the Shaaba Farms, located on Israel's side of the border with Lebanon, as "disputed."²⁴ One news report said in mid- 2002, "Hizballah yesterday engaged Israeli troops in the disputed Shaaba Farms near the Golan Heights, where the Israeli, Lebanese, and Israeli borders converge."²⁵ Anyone familiar with the actions of the UN Security Council on the issue of southern Lebanon cannot define the Shaaba Farms as disputed between Israel and Lebanon, since the UN formally acknowledged that Israel had fully withdrawn from Lebanese territory. The mistaken use of the term "disputed" by international news organizations to refer to Mt. Dov/Shaaba Farms undermines Israel's legal position and legitimizes continued Hizballah attacks from Lebanon as an acceptable form of "resistance."

The "Fighting" Reporters of the Foreign Media

Fiamma Nirenstein, Middle East special correspondent for Italy's La Stampa newspaper, characterized foreign news correspondents as fighting journalists rather than reporting journalists with respect to the armed conflict between the Palestinians and Israel.²⁶ Many foreign reporters, today in their 40s and early 50s, actively demonstrated on European and U.S. college campuses against capitalist hegemony in America and Western imperialism in Africa and South America, and against Israel's participation in the 1982 Lebanon war.

Today, these "fighting journalists" are active moral participants in a still unfolding story of "Palestinian Davids" fighting to "liberate their homeland" from the Israeli "colonialist Goliath." One Middle East expert based in Britain emphasized that presenting Israel's legal and historical rights to European journalists would be viewed as an extremist right-wing act, as it defies the European narrative of the conflict.²⁷

"Pack Journalism"

With over 17,000 terror attacks against Israel since September 2000 and nearly daily IDF anti-terror operations in the West Bank and Gaza, the hundreds of journalists covering the Israel-Palestinian story have little time to get up to date on background material, including the complex history of the region and international treaties and agreements. Therefore, they mostly rely on leading media brand names to set the journalistic standard for accuracy and context.

Georges Malbrunot, correspondent for France's Le Matin daily, called the BBC his "living Bible."²⁸ La Stampa's Nirenstein also noted "the extraordinary iconoclastic informal power of the media: sporty, ironic, virtually all of one mind."²⁹ The reporting of European correspondents displays a far greater tendency to the "herd instinct" than the reporting of their American counterparts. Europe has a far smaller media market, fewer media outlets, and fewer opportunities to express opinions differing from those of the far left European conformist trend.³⁰

The Influence of Media on International Law

The international news media wield great influence in shaping the public's understanding of the Israeli-Palestinian conflict. Paradoxically, news reporting also impacts on the international courts. True, international legal texts in the past have not cited media reports as an acceptable source of international law, like customary practice in bilateral treaties. Nevertheless, this is beginning to change.

A Swedish lawyer, who recently filed a complaint of war crimes against Prime Minister Ariel Sharon for ordering last year's Defensive Shield operation in the West Bank, argued before a Swedish court that media reports of Sharon's alleged "crimes" should suffice as evidence against him. Although the prosecutor ultimately rejected the claim, TV pictures have an increasing value as admissible evidence.³¹ According to international human rights attorney and Canadian parliamentarian Professor Irwin Cotler, media reports can be a "constituent feature" of a complaint to the International Criminal Court at The Hague, as part of an effort to initiate a war crimes trial.³² International news organizations, therefore, bear a heavy responsibility for accurate reportage of the rights and claims of both Palestinians and Israelis, in order to ensure optimal balance in presenting this explosive and complex conflict to the public.

Notes
1. Dilip Hiro, "Land is the Issue," Guardian, 22 May 2001; http://www.guardian.co.uk/israel/Story/0,2763,494505,00.html
2. "The Crisis in Iraq," BBC's Dateline London, with Nick Gowing, 16 February 2003.
3. Interview with Alan Baker, Legal Advisor to Israel's Foreign Ministry, 17 January 2003.
4. Steven Weisman, "US Joins Partners on Plan for Middle East, But Not Timing," New York Times, 21 December 2002, p. A2.
5. Jeff Helmreich, "Journalistic License, Professional Standards in the Print Media's Coverage of Israel," Jerusalem Letter #460, 15 August 2001, p. 4.
6. Dore Gold, "From Occupied Territories to Disputed Territories," Jerusalem Viewpoints #470, 16 January 2002, p. 3.
7. Beirut Daily Star, 12 June 1974, as quoted by Leonard J. Davis in Myths and Facts (Washington: Near East Report, 1989), p. 48.
8. Gold, p. 3.
9. This exchange was part of a panel on news coverage of the Israel-Palestinian conflict in Jerusalem, 17 November 2002.
10. Moshe Landau, Yehuda Blum, and Meir Rosenne, "Arafat's Web of Lies," Ha'aretz, 3 January 2001.
11. "Har Homa, Legal Aspects," Israel Foreign Ministry web site, 3 March 1997; www.israel-mfa.gov.il.
12. Ibid. This is also the position of Alan Baker, Legal Advisor to the Israeli Foreign Ministry and part of the Israeli team drafting the Oslo Accords, as stated to the author at a meeting on 17 January 2003.
13. Jeff Helmreich, "Journalistic License," p. 11.
14. Justus Reid Weiner, Illegal Construction in Jerusalem: A Variation on an Alarming Global Trend (Jerusalem: Jerusalem Center for Public Affairs, 2003), p. 7.
15. Ibid., p. 8.
16. Ibid., p. 10.
17. BBC Monitoring, "Arab Fury at Jerusalem Decision," 5 October 2002, p. 2.
18. Leonard J. Davis, Myths and Facts, p. 214.
19. Dore Gold, Jerusalem in International Diplomacy (Jerusalem: Jerusalem Center for Public Affairs, May 2001), p. 23.
20. Ibid., p. 24.
21. Ibid., p. 26.
22. Alex Safian, "The Media's Tunnel Vision," Camera Backgrounder, 6 November 1996, p. 3.
23. Ibid., p. 3.
24. See Ewen MacAskill, "Threat Grows of Second Front in Lebanon," Guardian, 4 April 2002, p. 2.
25. Ibid., p. 2.
26. Interview with Fiamma Nirenstein, Special Middle East Correspondent, La Stampa, 27 January 2003.
27. Interview with Dr. Emanuele Ottolenghi, research fellow at Oxford University, 19 January 2003.
28. Judy Lash Balint, "Palestinian Harassment of Journalists," WorldNet Daily and Emunah magazines, 25 February 2001.
29. Fiamma Nirenstein, "The Journalists and the Palestinians," Commentary Magazine, January 2001.
30. Interview with Dr. Emanuele Ottolenghi, 19 January 2003.
31. Interview with Alan Baker, 13 May 2003.
32. Interview with Professor Irwin Cotler, Member of the Canadian Parliament and expert on international human rights law, 4 February 2003.

Dan Diker is a Knesset and economic affairs reporter for Israel Broadcasting Authority's English News. He is also media affairs consultant at the Jerusalem Center for Public Affairs/Institute for Contemporary Affairs, founded jointly with the Wechsler Family Foundation.

This first appeared in The Jerusalem Letter and Jerusalem Viewpoints, which is published by the Jerusalem Center for Public Affairs (jcpa@netvision.net.il). JCPA holds the copyright (ISSN: 0792-7304).

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