Sunday, December 21, 2014

Legal and Historical Precedents for Israeli claims to Judea and Samaria Matthew M. Hausman, BA, JD

Legal and Historical Precedents for Israeli claims to Judea and Samaria
Matthew M. Hausman, BA, JD Presenter, Israel Truth Week Conference, Hamilton, Ontario, Canada, March 5-6, 2013

Israel’s Historical Claims Israel has valid historical claims to Judea and Samaria because they were part of the Second Jewish Commonwealth. Jews lived there from ancient times through successive conquests, the Ottoman occupation, and the British Mandatory period until 1948, when they were attacked and expelled by combined Arab-Muslim forces that invaded from east of the Jordan. These lands were conquered by Transjordan (thereafter called Jordan) and dubbed the “West Bank,” in much the same way that ancient Judea was renamed “Palestine” by the Romans in order to obscure the Jews’ connection to their ancestral land by invoking the name of the ancient Philistines – a people who had long since ceased to exist. Jordan’s conquest of these territories violated international law and was recognized only by Great Britain and Pakistan, and its subsequent occupation could never be legitimized under established legal principles. The Jewish provenance of these lands is evidenced by the t Jewish holy sites they contain, including, Joseph’s Tomb in Nablus, the Cave of the Patriarchs in Hevron, and Ramat Rachel near Bethlehem. It is also reflected by the numerous Arabic place names that are etymological renderings of the original Hebrew, including: Batir, corresponding to “Beitar,” the seat of Bar Kochba’s rebellion against Rome; Beit-Hur, originally “Beit Horon,” where the Maccabees defeated the Assyrian Greeks; Beitin – originally “Beit El,” where the Prophet Shmuel held court and the Ark of the Covenant was kept before the Temple was built; and Tequa, the site of ancient “Tekoa,” where the Prophet Amos was born and received his prophesy.
Judea and Samaria only became Jew-free when combined Arab-Muslim armies from East of the Jordan attacked and expelled the Jewish residents in 1948 after the ill-fated U.N. partition vote. Historically, it was Jewish land that was usurped by foreign occupiers.
San Remo Convention of 1920 and the League of Nations Mandate for Palestine In addition to the Jews’ historical connection to Judea and Samaria, Israel’s claim to these lands is consistent with established legal precedent as recognized by the San Remo Convention of 1920. Regarding the lands liberated from Ottoman rule during the First World War, the San Remo Resolution resolved as follows: The High Contracting Parties agree to entrust, by application of the provisions of Article 22, the administration of Palestine, within such boundaries as may be determined by the Principal Allied Powers, to a Mandatory, to be selected by the said Powers.
The Mandatory will be responsible for putting into effect the declaration originally made on November 8, 1917, by the British Government, and adopted by the other Allied Powers, in favor of the establishment in Palestine of a national home for the Jewish people, it being clearly understood that nothing shall be done which may prejudice the civil and religious rights of existing non-Jewish communities in Palestine, or the rights and political status enjoyed by Jews in any other country. 1(San Remo Convention Resolution, Paragraph (b).) Underlying the San Remo Resolution’s affirmation of the Balfour Declaration of 1917 was the recognition that the Jews are defined by descent as well as religion, are indigenous to the Land of Israel, and possessed the inalienable right to political and national ascendancy in their homeland.
The San Remo program was ratified by the League of Nations Mandate for Palestine in 1922, the preamble of which stated in relevant part: Whereas the Principal Allied Powers have also agreed that the Mandatory should be responsible for putting into effect the declaration originally made on November 2nd, 1917, by the Government of His Britannic Majesty, and adopted by the said Powers, in favor of the establishment in Palestine of a national home for the Jewish people, it being clearly understood that nothing should be done which might prejudice the civil and religious rights of existing non-Jewish communities in Palestine, or the rights and political status enjoyed by Jews in any other country; and Whereas recognition has thereby been given to the historical connection of the Jewish people with Palestine and to the grounds for reconstituting their national home in that country… The Mandate clearly set forth the British obligation to effectuate these goals in accordance with the San Remo Resolution. (League of Nations Mandate for Palestine, Article 2.)

Regarding the intended geographical scope of Jewish habitation and settlement, the Mandate specifically provided that: The Administration of Palestine, while ensuring that the rights and position of other sections of the population are not prejudiced, shall facilitate Jewish immigration under suitable conditions and shall encourage, in cooperation with the Jewish agency referred to in Article 4, close settlement by Jews on the land, including State lands and waste lands not required for public purposes. (League of Nations Mandate for Palestine, Article 6.) San Remo and the Mandate for Palestine reflected the recognition of the Jews’ historical rights in their homeland, and that they constituted an indigenous people.
This recognition of Jewish national rights was ratified by the United States on June 30, 1922, when both Houses of Congress issued a joint resolution unanimously endorsing the Mandate and the goal of reestablishing the Jewish national home. The Congressional resolution stated in relevant part: Resolved by the Senate and House of Representatives of the United States of America in Congress assembled. That the United States of America favors the establishment in Palestine of a national home for the Jewish people, it being clearly understood that nothing shall be done which should prejudice the civil and religious rights of Christian and all other non-Jewish communities in Palestine, and that the holy places and religious buildings and sites in Palestine shall be adequately protected. 2(Joint Congressional Resolution No. 360, the Lodge-Fish Resolution.)
Despite the Jews’ willingness to accept an area comprising less than their traditional homeland as set forth in the U.N. Partition Plan of 1947, the Arab world refused to accept any expression of Jewish sovereignty and scorned all proposals providing for a modern Jewish state.
The Partition Plan was rejected by every Arab-Muslim nation simply because it provided for Jewish autonomy. Regarding the Palestinian people, the Arab world rejected the term “Palestine” to describe lands under mandatory control because, as stated by Auni Bey Abdul-Hadi to the Peel Commission in 1937: “There is no such country [as Palestine]. ‘Palestine’ is a term the Zionists invented. There is no Palestine in the Bible. Our country was for centuries part of Syria.” This was the prevailing Arab view at the time.
In light of the Arab-Muslim rejection of the 1947 partition plan, it cannot be relied on as legal precedent to validate Palestinian claims to Judea and Samaria, or for that matter to Jerusalem or Gaza. Israel’s right of ownership cannot be impugned because she came into modern possession of these lands during wartime. Under internationally recognized Laws of War, the seizure of land from belligerent nations during wartime gives rise to legitimate and lawful ownership. The Arab nations started the wars of 1948, 1956, 1967 and 1973 with the expressed goal of destroying Israel and committing genocide.
In attacking Israel thus these nations violated Article 2, Section 4 of the U.N. Charter, which provides: “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.”
Consequently, Israel was acting within her legal rights when she captured Judea, Samaria, Jerusalem, Golan, Sinai, and Gaza during the Six-Day War. Judea and Samaria were never part of a sovereign nation at any time after the Roman conquest, but constituted unincorporated territories that ultimately were occupied by Jordan in derogation of international law.
Substantial portions of both had been designated under the Mandate for inclusion in the Jewish state. When Israel took control of these lands in 1967, she effectively liberated them from illegal occupation by a belligerent nation that had attacked her without provocation.
Security Council Resolution 242 does not Require Israel to Surrender Judea and Samaria U.N. Security Council Resolution 242 specifically recognizes that Israel was attacked by Jordan, Egypt and Syria in 1967, and calls on the parties to that conflict to negotiate a “just and lasting peace” based on “secure and recognized borders.” Implicit in this language is the recognition that Israel’s capture of Judea and Samaria, and also Golan, Gaza and Sinai, was legal under international law. If it were not, the resolution simply would have demanded that Israel return all lands captured from her attackers; there would be nothing to negotiate and no imperative for deviating from the 1949 armistice demarcations known as the “Green Line.” Resolution 242 does not characterize the Green Line as permanent. Resolution 242 does not require Israel to withdraw from “all” of “the” territories captured from Jordan, Egypt and Syria.
According to the Eugene Rostow, the former U.S. Undersecretary of State who participated in the drafting of Resolution 242, the exclusion of the adjective “all” and the definite article “the” was intentional and indicative of the essential meaning. 3(“The Future of Palestine,” Rostow, Eugene V., Institute for National Strategic Studies, November 1993.) The black letter of Resolution 242 applies only to incorporated “states.” The Palestinians are not specifically mentioned because there was no state of Palestine.
The term “refugees” as used in Resolution 242 refers to both Jews and Arabs who lost their homes during the war in 1948, not to a displaced nationality created after the fact. Nearly 950,000 Jews were summarily expelled from the Arab-Muslim world in 1948 without compensation.
Demographic Reality Oslo (which may be null and void) established three administrative divisions (Areas A, B and C), of which Area C comprises approximately sixty percent of Judea and Samaria and has a Jewish population exceeding 550,000, compared to an Arab population calculated only in the tens of thousands. The greater Jerusalem neighborhoods beyond the Green Line have 350,000 or more Jewish residents. Despite propaganda claims concerning an Arab demographic “time-bomb,” there is a two-thirds Jewish majority when Israel and the territories she controls are combined; and based on increasing Jewish and declining Arab population trends, the Jewish majority is likely only to increase in the future. The Jewish population in Israel proper is growing as well. As noted by reliable studies, the “demographic time-bomb” appears to be politically motivated propaganda, particularly as it relies on conjecture, surmise and doubtful census statistics that overstate the Palestinian population by as much as half.

ABOUT THE AUTHOR Matthew M. Hausman is a trial attorney and writer. He started his professional life as a journalist before going into law, and has maintained careers in both fields since being admitted to practice. Matthew writes on a variety of topics, including: science, health and medicine; constitutional law; Jewish social and political issues; and foreign affairs focusing on Israel and the Mideast. He has also served as a legal affairs columnist and has ghost-written medical monographs and pharmaceutical treatises. His work has appeared in a variety of publications and venues, including, American Thinker, Arutz Sheva/Israel National News, Canada Free Press, Connecticut Lawyer, Fairfield Business Journal, Hamodia, Israpundit, New English Review, and Watchdog Wire, among others. Matthew earned a Juris Doctor degree from The George Washington University Law School, in Washington, D.C., and his Bachelor of Arts from Clark University in Worcester, Massachusetts. He is active in Jewish communal affairs, and has served on the boards of several nonprofit organizations and institutions.

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