Israel's Legal Borders under International Law
"We must constantly repeat that the root of the conflict is the very existence of the State of Israel, the refusal to recognize the State of Israel in any borders whatsoever."
[Benjamin Netanyahu, 2012]
[Benjamin Netanyahu, 2012]
The Land of Israel pre-1948
During the seventh century Arab armies conquered most of the Middle East, including the land now variously called Israel, Palestine and the Holy Land (some 10,000 square miles). This area, including Jerusalem, became part of the Ottoman Empire and was largely under Muslim control until the early 1900’s. Over this period most of the population gradually accepted Islam and so by the mid 19th century the area was occupied by some 400,000 Muslims, 75,000 Christians and 25,000 Jews [World Vision].
Despite the strong Muslim presence, by the early 20th century the land was a mix of many peoples representing some 50 languages [1911 Encyclopaedia Britannica]. According to historian Richard Hartmann, prior to the creation of Israel in 1948 these communities were "ethnologically a chaos of all the possible human combinations", and so did not share a common Arab identity. They included Balkans, Greeks, Syrians, Egyptians, Turks, Armenians, Italians, Persians, Kurds, Germans, Afghans, Bosnians, Sudanese, Algerians and others. The land was not a "country" and had no frontiers, only administrative boundaries [Prof. Bernard Lewis].
A 'Land of Palestine'?
Is 'Palestine' a historic land? Is it legitimate to use the term for the area we now call Israel? To answer this we first observe that the Hebrews entered the Land of Israel, specifically Canaan, under Joshua c1450 BC (Jos 6). This area was gradually extended by Israel's kings (Saul, David and Solomon) but still excluded 'Philistia' (the land of the Philistines), a narrow coastal strip including Gaza. The Philistines were an Aegean people more closely related to Greeks than to Arabs. Linguistically, the term 'Palestine' originated from the Greek word pronounced Palaistina, which is derived from the Hebrew word pronounced pel-eh-sheth, meaning 'land of the Philistines'.
It is important to note that this 'land definition' of Palestine was later expanded by the Romans. In the 2nd century AD, the Romans renamed Judea as 'Palaestina' in an attempt to minimize Jewish identification with the land of Israel. In fact, it is claimed that the Roman Emperor Hadrian began using the term 'Palestine' for the whole Land of Israel, and unfortunately this term has prevailed over the centuries. For example, under the Ottoman Empire (1517-1917), the term 'Palestine' was used as a general term to describe the land south of Syria, and it was applied to the territory placed under the 1922 British Mandate (see below).
Historically then, the term 'Palestine' only applied to the narrow coastal strip of land occupied by the Philistines, and Philistia itself did not survive the invasion of Nebuchadnezzar II c600 BC. We conclude that there was no historic 'Land of Palestine', at least from this point in time. There can be no legitimate Arab claim to a 'Land of Palestine' or 'Palestinian Land' spanning large parts of modern Israel..
"There is no such country as Palestine." [Arab leader A.B. Abdul Hadi, 1937]
"There is no such thing as Palestine in history, absolutely not." [Arab Prof Philip Hitti (Princeton University), 1946]
"Palestine does not exist at all." [Ahmed Shkari (PLO founder), 1956]
A Palestinian People?
At the start of the 20th century, just as there was no 'Land of Palestine', the strong ethnic mix referred to above meant there was no distinctive 'Palestinian people'. There were, however, stirrings for nationalism in response to Zionism. The term 'Palestine' seems to have come to prominence after the Balfour Declaration in 1917, when shortly after this the British were given a 'Palestine Mandate'. The 1922 Mandate didn't recognize the existence of a 'Palestinian people' but instead referred to the local Arab population as existing non-Jewish communities. It was only later that we find an emergence of Palestinian nationalism and an identifiable 'Palestinian People' [James Gelvin] [Rashid Khalidi]. Some see this as a response to the threat posed by Zionism, when waves of Jewish immigrants arrived in Palestine between 1919 and 1939.
It is interesting to note that, by 1948, a substantial portion of the 'Palestinian people' resident in Mandate territory originated, not from that territory, but rather from the surrounding Arab lands of Lebanon, Syria, Jordan and Egypt! It is claimed that the Jews were the very reason the Arabs chose to settle in the Land of Israel - jobs provided by newly established Zionist industry and agriculture lured them there.The 'Palestinians' are therefore not an ethnic group (in contrast to the Jews).
Jews have been living in Jerusalem continuously for nearly two millennia and they have constituted the largest single group of inhabitants there since the 1840's. For example, at the creation of the State of Israel in 1948, Jerusalem had some 100,000 Jews and about 40,000 Arabs. To Jews the entire city is sacred, whilst to Arabs only "the Dome of the Rock" is sacred (Islamic tradition says Mohammed ascended to heaven from here - although some claim he never set foot in Jerusalem). Jerusalem has been the Jewish capital for millennia, but it has never been the capital of any Arab entity.
Timeline for the Partitioning of Palestine
1917 Balfour Declaration
A.J. Balfour (Secretary of State for Foreign Affairs, British Foreign Office) stated that "His Majesty's Government view with favor 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 ...". Formally, this became known as 'The Balfour Declaration'.
The San Remo Peace Conference gave Britain a provisional 'Mandate for Palestine' based upon the Balfour declaration. In legal terms, 'The Mandate for Palestine' was 'The Trust' and Britain was the 'Mandatory' or 'Trustee'. The primary objective of the Mandate was to grant political rights in respect to Palestine to the Jewish people. Initially the Mandate defined "Palestine" as spanning both west and east of the Jordan (Fig.1), an area much larger than the historic Palestine as envisaged by the Zionists.
Fig 1: The 1920 provisional Palestine Mandate (Image courtesy Eli E. Hertz)
The British Mandate was formalized in September 1922 by the Council of the League of Nations. Essentially this body gave unanimous approval for a Jewish national homeland in Palestine. Article 25 of this Mandate enabled the Mandatory to change the terms of the Mandate in the territory east of the Jordan River. Britain, under Colonial Secretary Winston Churchill, activated this option and cut away 77% of the original mandated area for the Jews and created a new country called Trans-Jordan, later called Jordan (Fig.2). The East Bank was therefore given to Britain's Arab allies!
Fig 2: The 1922 British sub-division of the mandated land (Image courtesy Eli E. Hertz)
So the 1922 Mandate for Palestine redefined the boundary of Jewish Palestine as west of the river Jordan. Even though this created a fourth Arab state east of the Jordan, the Arab communities wanted as little to do with the Mandate as possible.
Fig 3: The 1922 League of Nations sub-division (Image courtesy Eli E. Hertz)
During the late 1920’s Jewish immigration and investment benefited the indigenous people and Arab standard of living in the area increased. In 1923 Britain (illegally) traded the Golan Heights, originally part of the Mandate, to France in exchange for the oil-rich lands of Mosul in Iraq.
The Peel and Woodhead commissions of 1937 and 1938 recommended partitioning Palestine into a small Jewish state and a large Arab state, but this was rejected by the Arab leadership (which included Saudi Arabia).
The British White Paper of 1939 (also known as the McDonald White Paper) was a statement of policy that severely compromised the British commitment to the establishment of a Jewish homeland in Palestine. While it may have mollified Arab opinion, as intended, it certainly alienated Zionist Jews as its enforcement prevented the free settlement of refugees who desperately needed to leave Europe. In the 1939 White Paper, the limitation on Jewish immigration was made permanent: seventy-five thousand Jewish immigrants would be allowed to enter Palestine over a five year period. The policy therefore repudiated the Balfour Declaration and Britain's commitments under the League of Nations just at the time of greatest need for a sanctuary for Jewish refugees. The White Paper remained the basis of British policy until the end of the Mandate - a sad indictment against Britain.
The League of Nations was dissolved and its assets and duties transferred to the United Nations (UN). So the Trust (the Mandate for Palestine) was transferred over to the UN, and article 80 of the UN Charter implicitly recognizes the 'Mandate for Palestine' of the League of Nations. So the UN implicitly reaffirmed the 1922 Mandate; Article 80 preserved the mandated rights of the Jewish people. In 1946 all Jewish ownership in the Golan was nullified by the new state of Syria.
At this time nearly half the land of Palestine was owned by Arabs, nearly half was "Crown Lands", and about 8% was owned by Jews. In 1947 a UN Special Commission on Palestine recommended that this area be divided equally, with open borders, into an Arab state and a Jewish state (Fig.4). Note that this plan referred to an "Arab" state, rather than to a "Palestinian" state (since there was no indigenous Palestinian people). Jerusalem was to be "internationalized". The UN General Assembly adopted this plan on November 29, 1947 (UN Resolution GA 181), and in 1977 the UN recognized November 29 as the International Day of Solidarity with the Palestinian People.
The Jews accepted the UN resolution but the Arabs rejected it. On Nov 30 and Dec 1 1947 Arab riots broke out in Jerusalem and fighting and violence spread throughout the country. Arab Palestinians began leaving their homes to escape the violence. The Partition Plan was to replace the British Mandate, but since the plan was never implemented, the British Mandate still stands.
Fig 4: The 1947 UN Partition Plan (not implemented)
April 1948 appeared to mark a turning point in the fighting in favor of the initially outnumbered and outgunned Jewish forces. On May 14 1948 the Jews proclaimed an independent State of Israel and the British withdrew from Palestine. On the same date, Britain, as Trustee for the 1922 Mandate turned over its responsibility to the UN and withdrew from Palestine. The Trust (or Mandate) was now totally in the hands of the UN.
As the Jewish State was born and the British finally left, five Arab armies (Egypt, Syria, Jordan, Lebanon and Iraq) immediately invaded Israel. The Arabs had no difficulty obtaining all the arms they needed. In fact, Jordan's Arab Legion was armed and trained by the British, and led by a British officer. At the end of 1948 and beginning of 1949, British RAF planes flew with Egyptian squadrons over the Israel-Egypt border. On January 7, 1949, Israeli planes shot down four of the British aircraft. During this war the Israel Defense Force (IDF) was formed. At the end of the war in Israel held territory beyond the boundaries set by the UN Partition Plan (approximately 78% of the area west of the Jordan) and Jerusalem was divided between Jordan and Israel, Jordan holding East Jerusalem. Egypt held Gaza and Jordan held the West Bank (Judea and Samaria).
Jewish communities in the West Bank that had existed prior to the Arab invasion were demolished, as was the Jewish quarter of the Old City of Jerusalem. It's population of about 2,000 Jews was besieged and forced to leave en mass, and 55 synagogues and Talmudic Academies were destroyed. The UN partition plan, including its proposal that Jerusalem be internationalized, had been overtaken by events. From 1948-67, the city was divided between Israel and Jordan, but Jordan's sovereignty over the West Bank and East Jerusalem was never recognized by the UN.
The 1949 Green Line
The Arab countries refused to sign a permanent peace treaty with Israel, and so the UN arranged a series of ceasefires. UN GA Resolution 194 called for cessation of hostilities and return of refugees. Security Council Resolution 62 called for implementation of armistice (truce/ceasefire) agreements that would lead to permanent peace and as a result Israel's borders were re-established along the so-called "Green Line". This demarcation or armistice line, drawn up under the auspices of UN mediator Ralph Bunche, largely reflected the ceasefire lines of 1949 (Fig 5) and as such represented interim borders for Israel.
At this point, Egypt held the Gaza strip, Jordan retained control of Judea and Samaria (the 'West Bank'), plus the Old City of (east) Jerusalem, and only as a result of war was Israel excluded from the West Bank and Gaza! It is shown later that the 1949 Armistice Green Line is not Israel's Legal Border
Fig 5: Israel's 1949 'Green Line' Borders
The Refugee and West Bank Problem
At this time some 726,000 Arabs fled or were driven out of Israel and became refugees in neighboring Arab countries, whilst over 950,000 Jews were forced to leave Muslim countries after their property was confiscated. Israel offered to repatriate 100,000 Arab refugees in April 1949 but this was rejected.
The UN offered $200 million for the refugees but this was also rejected by Arab governments.
In the Six-Day War of June 5–10, 1967, the armies of Egypt, Jordan, Syria, Lebanon (and later Iraq) attacked Israel. Their goal was “to wipe Israel off the map”. Israel defeated the attack even though the Arab armies had huge superiority in armor, aircraft and troops. After the war Israel held the Sinai, the Golan Heights, Gaza, the West Bank and all of Jerusalem. Some 1 million Arabs and all parts of Palestine were now under Israeli rule. It is interesting to note that the area controlled by Israel after this war was the same area allotted to Israel for Jewish settlement under the 1922 Palestine Mandate (Fig. 3).
Initially, the Israeli government declared that it was ready to return all of the territories except Jerusalem in return for peace treaties with its Arab neighbors. However, due to pressures within Israel, and the fact that Arab states would not negotiate with Israel, an increasing number of settlements were established on the West Bank.
1967 Arab Summit
In the wake of the Arab defeat, eight Arab heads of state attended an Arab summit conference in Khartoum, Sudan held August 29 - September 1, 1967. It formulated the Arab consensus that underlay the official policies of most Arab states for the next two decades and beyond, with the exception of Egypt: "no peace with Israel, no recognition of Israel, no negotiations with it."
1967 UN Resolution 242
In November 1967 the UN Security Council adopted Resolution 242. The most controversial clause was the call for the "Withdrawal of Israeli armed forces from territories occupied in the recent conflict" (i.e. in the Six-Day War) in exchange for an end to the Arab-Israeli conflict. Although the Arabs pushed for the clause to say "all the" territories, the Resolution deliberately did not say how much territory Israel had to give up. When asked to explain this, the British Ambassador who drafted the approved resolution (Lord Caradon) said:
"It would have been wrong to demand that Israel return to its positions of June 4, 1967, because those positions were undesirable and artificial."
Similarly, Arthur Goldberg (one drafter of Resolution 242) repeatedly stated that
"... the armistice lines of 1948 were intended to be temporary ... this, or course, was particularly true of Jerusalem. At no time ... did I refer to East Jerusalem as occupied territory."
Clearly, the UN regarded the pre-1967 war boundaries as "artificial" and "temporary" (recall that Jordan only gained the West Bank and E. Jerusalem by war). Also note that Resolution 242 implied that Israel withdraw from "some" of the occupied territories, not "all". Since Israel withdrew from 91% of the territories when it gave up the Sinai, it has already partially, if not wholly, fulfilled its obligation under 242.
In October 1973 Egypt and Syria launched another attack on Israel (the Yom Kippur War). Israel withdrew from Sinai in 1982.
In 1978 Egypt and Israel signed the Camp David framework agreements, leading to a Peace Treaty in 1979. Israel withdrew from Sinai in 1982.
King Hussain of Jordan formally renounced any claim to the lands (i.e. West Bank and East Jerusalem) that he had lost in the 1967 war.
1988 also saw affirmation of the Hamas Charter or 'The Charter of Allah: The Platform of the Islamic Resistance Movement (Hamas)'. This charter calls for the destruction of Israel and the killing all Jews. Hamas is an acronym of Harakat al Mawqawama al Islamiyya meaning "Islamic Resistance Movement."
The Oslo Accords: in these Israel recognized the PLO as Palestine's official representative, the PLO renounced the use of violence, and the PLO recognized Israel's right to exist. The PLO became the Palestinian Authority (PA) in 1994.
Israel and Jordan signed a peace treaty in 1994, and Israel withdrew troops from Gaza and most cities and towns of the West Bank by 1996. Palestinians authorities then took control.
The Oslo Interim Agreement 1995 (signed by the Palestinians at the White House and signed by the EU as witness) contained a clause (Article 31) stating:
"Neither side shall initiate or take any step that will change the status of the West Bank and the Gaza Strip pending the outcome of the permanent status negotiations."
So any attempt to change the status of these territories, namely a 2-state solution without prior negotiations with Israel will violate this clause. Article 31 expressly prohibits unilateral action by either side to change the status of the West Bank (Judea and Samaria) and Gaza prior to reaching a negotiated permanent status agreement.
Israel reoccupied all of the West Bank (Judea and Samaria) following waves of Arab-Palestinian suicide attacks.
Since Israel withdrew from 91% of the territories when it gave up the Sinai, it has already partially, if not wholly, fulfilled its obligation under UN Resolution 242. Moreover, if Israel withdrew from the whole of the West Bank up to the June 4 1967 border, then planes taking off from Israel's main airport would be in range of shoulder-fired missiles from the West Bank.
By 2003 about 220,000 Israelis had settled in the West Bank. Israel erected security barriers along the Green Line to prevent more suicide attacks. From 2000 to 2003 there were 73 attacks from Samaria killing 293 Israeli's, but after construction of Israel's Security Fence attacks declined by over 90%. This is, of course, at the expense of severe hardship for many Palestinians.
In response to Palestinian attacks, the IDF recaptures parts of the Gaza Strip. Prime Minister Ariel Sharon presents a Disengagement Plan from Gaza and the northern West Bank, which met with intense opposition from fellow Likud members and from settlers. To aid Israel in this withdrawal, President Bush stated that, in his view, "Israel should not have to withdraw to the 1949 Armistice borders".
Knesset ratifies Sharon's Disengagement Plan. Government announces August 15 as the day disengagement is set to begin. Passionate, nationwide anti-disengagement protests begin. Israel withdraws unilaterally from Gaza on August 15. After the election of Hamas in 2006 there was a steady increase of rocket attacks against Israel's citizens. Between 2001 and January 2009, over 8,600 rockets had been launched from Gaza, leading to 28 deaths and widespread trauma.
On 27 December 2008 Israel launched a wave of airstrikes against targets within the Gaza Strip, with the stated aim of stopping rocket fire from and arms import into the territory.