It is time to factually clarify the legal
status of Judea
and Samaria
under international law.
"When the occupant is not the one you want to believe in"
In 1967 Israel liberated occupied
Jewish Palestinian territories. For the enemies of Israel and many of Its’
friends, and for a majority of Israelis, this is a basic axiom. During the Six
Day War, it is stated that Israel liberated and
captured the Jewish Palestinian territories, resettled and installed there Its’
“settlers” with impunity and in obvious violation of international law. Is
this axiom a lie? If international law asserts the
exact opposite, for obvious political and diplomatic reasons, then the facts
have been ignored and have instead embraced the current unfounded and false
Arab propaganda. This understanding is a misconception and false.
It is time to clarify and illustrate the Jewish legal status of Judea and Samaria under international law. One only has to read the documents. However,
the Media has without a doubt, immersed itself in hearsay and untruths,
twisting facts and ignoring the truth. It is time to examine the real
truth and facts as supported by documents and history.
We hardly talk
about it, yet, when looking at historical documents on the legal status of Judea and Samaria, one finds powerful
arguments against all critics who accuse Israel of occupation of the territories.
It must be noted it doesn't matter if these critics are Arabs, Americans,
Europeans or even members of the Israeli extreme left.
The San Remo
Treaty of 1920, written almost
a century ago and confirmed by the 1920 Treaty of Sevres, forms the foundation
of truth. Yet, it seems hardly anyone in the Prime Minister's office, the
Minister of Foreign Affairs, or Hasbara has taken the time to build a strategy based
on said Treaty and other documents which followed that prove clearly that Israel is far from the colonial power it is
being accused of being since 1967.
When considering the media
archives that preceded the Oslo Accords (which are now null and void), we
realize that the official Israeli narrative concerning the Israeli presence in
the West Bank was much less ''worried'' then today. Until
1993, Israel gave the impression of not requiring
justification for rebuilding Jewish settlements beyond the Green Line. Until
that time, Israel did not seem to plead for the
international community and the Arab world in particular to give It the acquiescence
of keeping the famous "settlement blocs."
According to Prof. Eliav
Cho'hatman, lawyer and lecturer at the Graduate Institute of Law "Shaare
Mishpat," there is no doubt that the Oslo Accords marked the starting
point of this attitude it deems "catastrophic": "Until then, our
leaders did not hesitate to brag our rights over all the land of Israel from
the point of view of international law but since the agreements were signed,
only security patterns are referred to plead that part of these territories we
are entitled to remain in our hands." Prof. Cho'hatman says he sent
to Prime Minister Binyamin Netanyahu during his first term (1996-1999), his
work on the above, but regrets that the head of government has not availed
itself: "When I heard of two states for two peoples, I understood
why."
To understand this issue, we
must examine Balfour Declaration and San Remo Treaty which was confirmed in the
1920 Treaty of Sevres, a little less than a century ago, November 2, 1917, to be precise. At that time, Lord Balfour,
Foreign Minister of Great Britain, in writing, and in agreement with Chaim Weitzman,
then president of the World Zionist Organization, wrote in an official letter
to Lord Lionel Walter Rothschild, honorary president of the Zionist
Organization of England, the following. In this letter, the UK is in favor of the
establishment of a national home for the Jewish people in Palestine. This is the famous
"Balfour Declaration" which raises unbridled hope in the Jewish
world. In the aftermath of World War I, the League of Nations entrusted to Britain a Mandate over Palestine as trustee for the
Jewish people over all of Palestine.
Three years after the Balfour
Declaration in 1920, the conference was held in San Remo, Italy during which the great powers decided
how to split the territories conquered during the war. At this conference, it
was decided to incorporate the 1917 Balfour Declaration into The San Remo
Treaty of 1920 (its terms are in effect in perpetuity) and confirmed by the
1920 Treaty of Sevres, it set the British Mandate for Palestine as trustee for
the Jewish people. This decision confirms the international recognition of the
Jewish right to self-determination in Palestine and the mandate for Britain to "work towards the realization of
this statement to reconstitute a national home for the Jewish people in all of Palestine" (Balfour Declaration). It
must be noted, the San Remo Treaty did not grant any other nation or people
land in any part of Palestine, only the Jewish
people. Including the
incorporation of the Balfour Declaration into the Palestine Mandate by the United Kingdom, this text is the same international
resolution supported by the 52 member countries of the League of Nations, and later by the United States, which would become a member of the
international organization a few years later.
The San Remo Treaty of 1920 and its terms to
reconstitute the Jewish people in its ancestral land was reconfirmed in the 1920
treaty of Sevres and the treaty of Lausanne.
British Mandate for Palestine
The three principles of the
British Balfour Declaration regarding Palestine as a reconstituted Jewish country were adopted
in the 1920 Treaty of Sèvres:
ARTICLE 95.
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 2, 1917, by the British Government, and adopted by
the other Allied Powers in the San Remo Conference, in favor of the
re-establishment in all of Palestine 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 and
granting the Jewish people exclusive political rights in Palestine.
Palestine officially fell under the British Mandate as
trustee for the Jewish people.
French Mandate of Lebanon
The French Mandate was
settled at the San Remo Conference. Comprising the region between the Euphrates
River and the Syrian Desert on the east, and the Mediterranean Sea on the west,
and extending from the Alma Dagh Mountains on the south to Egypt on the south;
Area of territory about 60,000 sq mi (160,000 km2) with a
population of about 3,000,000. Lebanon and an enlarged Syria, which were later assigned again under League of
Nations Mandate. The region was divided under the French into four governments
as follows: Government of Aleppo from the Euphrates region to the Mediterranean; Great Lebanon extending from Tripoli to Palestine; Damascus, including Damascus, Hama, Hems, and the Hauran; and the country of Mount Arisarieh.
French Mandate of Syria
Faisal ibn Husayn, who had
been proclaimed king of Syria by a Syrian national congress in Damascus in March 1920, was ejected by the French in July
of the same year.
The San Remo Treaty of 1920 - some
relevant terms
In paragraphs 5, 6 and 7
of the Protocol of San Remo, we read: "No territory of Palestine will be sold or leased or held in any
way under the control of the government of any foreign power." Or:
"The Administration of Palestine, while ensuring that the rights of other
parts of the population are not altered, shall facilitate Jewish immigration
under suitable conditions and encourage, in cooperation with the Jewish Agency;
The dense settlement of Jews on the land, including State lands and waste lands
not required for public purposes. "
Finally, the Palestine Mandate
states: "the Administration of Palestine is responsible for the adoption
of a law on nationality. Included in this law must be provisions framed so as
to facilitate the acquisition of Palestinian citizenship by Jews who acquire
permanent residence in Palestine." At that time, it must be
remembered, Palestine is not just the west bank of the Jordan. Rather, it also includes, most
importantly the majority (approx. 77%) of the territory which is the east bank
of the Jordan
River, where
today is located the new State of Jordan.
Britain reneged on its promises
What happens next is related to internal political changes in Britain and the election of a government hostile
to the creation of a Jewish homeland throughout the territory of Palestine. Thus Britain, having clearly supported
the conclusions of the San Remo Conference of 1920 and its confirmation in the
1920 Treaty of Sevres, changes its mind in violation of the treaty and weaves
very tenuous diplomatic ties with the Arab countries surrounding the area of
Palestine and with several Arab leaders (to control natural resources, such as
oil).
If one argues
that the perpetual right of Israel to all of Palestine has been abrogated, then
one also brings into question the status of the Arab states that were created
by England in the aftermath of
World War 2. The legality of these Arab states that were carved out of the
defunct Ottoman Empire also rests on the same "trusteeship
system" installed after the first world war by the community of nations.
In fact, the Weizmann-Feissal agreement of the 1919 peace conference talked of
one Jewish state (all of Palestine) and only one Arab state
(the other 99.9% of the Middle East).
The creation of Transjordan
on Jewish land It was after this diplomatic
rapprochement that Transjordan was created in 1922. Transjordan is a semi-autonomous state like Britain led by Abdullah Hussein, son of Sharif
Hussein of Mecca Ibn Ali, and great-grandfather Abdullah, the current king of Jordan. However, in regard to the West
bank (Judea and Samaria) of the Jordan river, and the West Bank (Judea and Samaria) nothing has changed. Per San Remo
Treaty and all subsequent agreed to documents, these regions are still part of
the territories over which the Jewish national home has to be re-established as
confirmed per the 1920 Treaty of Sevres.
According to many lawyers, Professor Julius Stone, Howard Grief,
Stephen M. Schwebel, Former ICC Judge including Prof. Dr.
Cho'hatman with Talya Einhoren, and American lawyer Eugene Rostov, one of the
drafters of the famous U.N. Resolution 242 which is the partition plan of November
29, 1947, does
not change the situation either. Indeed, having been adopted by the U.N.
General Assembly and not by the Security Council, it cannot be considered
legally binding. Legally, it is only a recommendation that obtains legal
validity in case of endorsement by the parties in question: the Jews and the
Arabs. This plan was rejected by the Arab powers, thus, its status remains
protocol. For other lawyers, the
partition plan has transformed the status of the Judea and Samaria territories into one of dispute.
On one hand, the Territories are not part of the state of Israel created in 1948. On the other hand
they do not belong to Jordan which occupied those lands from 1948 to
1967. The War of 1967 liberated said Territories returning them to the rightful
owners the Jewish state of Israel. *** see at end of article Judicial
review
The Jordanian occupation
Did the Jewish people temporarily lose the rights to Judea and Samaria with the Jordanian occupation between 1948
and 1967? For many lawyers, the answer is no. Jordan proclaimed Itself sovereign of the
territories after the war of independence with the support of only two
countries, Britain and Pakistan. Moreover, the same Jordan
decided in 1988 to abandon its sovereignty in Judea
and Samaria. Incidentally, the term West Bank formally is no longer needed. It should
also be known that many Arabs in the West Bank also known as Judea and Samaria are citizens of Jordan.
The dissolution of the League of Nations
Does the dissolution of the
League of
Nations which
was replaced by the UN, and the end of the British Mandate for Palestine cause any change in the rights of the
Jewish people to their land? Again, the answer is no because, under section 80
of the UN Charter, "nothing in this Chapter shall be construed as
affecting directly or indirectly in any manner the rights whatsoever of any
states or any peoples or the terms of existing international instruments to
which Members of the Organization may be parties." Clearly, this means
that the UN committed in 1945 to protect
the legitimacy of the Jewish land rights established by the League of Nations, The San Remo and the confirmation by
the 1920 Treaty of Sevres .
For Professor Eugene Rostov,
mentioned above, this means that "the right of the Jewish people to settle
in the land of Israel has never been interrupted on all the territory west of the
Jordan River, and since a peace agreement has not and
will not be signed between Israel and its neighbors the status has not
changed." He later wrote that under all international treaties and
agreements, "Israel has an undeniable right to establish
settlements in the West
Bank."
No unilateral
approaches
Did the Oslo agreements affect the status of Judea and Samaria under international law? Again, the
answer is to be found in the texts themselves. Indeed, it is stated in the
preliminary agreement in 1993 that the final peace agreement will be signed by
both parties "through negotiations." The agreement, called Oslo II and
ratified in 1995 (which is currently null and void), provides for its part that
neither side "does not initiate or commence proceedings which can change
the status of the West Bank and the Gaza Strip to the end of negotiations on
the final peace agreement." Any unilateral approach - such as the
announcement in September by the Palestinians of an independent state - will
therefore be in stark contrast not only with the Oslo agreements (which may be null and void)
but also with resolution 242 of the UN that supports the right of each party to
"live in peace within secure and recognized borders." The borders of
a proclaimed Palestinian state are of course far from being "secure and
recognized" in the view point Israel. Incidentally, Resolution 242 does not
speak of, thus, does not apply to any such Palestine, rather, only to existing states, that
is to say, Jordan, Egypt and Syria.
Do not just be right, but
also know
There are other arguments for the legitimacy of the Jewish presence in Judea and Samaria. For example, the fact that these
territories cannot be considered ''busy'' since they do not belong, de facto,
to an enemy state. Or inconsistency of the term ''1967 borders" which are
not borders but the cease-fire line between Israeli and Jordanian armies at the
end of the 1967 and 1948 War of Independence. Legally, Israel is therefore in a rather comfortable and
sound position.
Yet these arguments are not raised. The reasons? There are many: Israel and the Israelis became convinced
themselves that they were a colonial power and archives in the world will not
be able to release this distorted image. Also in Jerusalem, it probably feels that right or not
right, the world has already chosen sides. In the corridors of the Foreign
Ministry, it is even said that under international law, "it is 99%
perception, and 1% enactment of factual law." But in Israel, there is another expression that says
it is not enough to be right, but you must also be smart. And now for the
good of the State of Israel, "be smart" is to make the world know
what is right.
The Jewish and Arab Refugee
resolution
Since the late
1940's the Arab States have expelled over a million Jewish people. They
confiscated their assets, businesses, homes and Real Estate which is 120,000
Sq, Km. (46,000 sq. miles, about 5-6 times the size of Israel) and is valued in the trillions of
dollars. The State of Israel has resettled the majority of the million Jews
expelled from the Arab countries in Greater Israel. The Arabs claim that about
600,000 Arabs were displaced from their homes during the 1948 war. Most of the Arab
population abandoned their homes at the request of the 5 Arab Armies who were
sure to defeat the newly reconstituted Jewish State. About 300,000 Arabs out of
the 600,000 stayed. Now the Arab and Jewish population has increased
dramatically. Many new Arabs have moved into the area, and many new Jews from
the Holocaust and other areas have emigrated to Israel. It is about time that the Arab
countries that expelled over a million Jews should resettle the Arab refugees
in their vast lands. Utilize the funding which is given to the Arab refugees
(instead of using it for weapons and war) to relocate, build housing, schools,
commerce and industry and resolve this tragedy once and for all. This will
bring peace and tranquility to the region.
***Authoritative
experts who have declared Israel’s presence in the West Bank, East Jerusalem and
the Golan to be legal, include inter alia
- Judge Schwebel, a former
President of the ICJ, who pronounced “As between Israel, acting
defensively in 1948 and 1967, on the one hand, and her Arab neighbors,
acting aggressively, in 1948 and 1967, on the other, Israel has the better
title in the territory of what was Palestine, including the whole of
Jerusalem.” (See Appendix A and http://www.2nd-thoughts.org/id248.html )
- Eugene W. Rostow, US Undersecretary of State for
Political Affairs between 1966 and 1969 who played a leading role in
producing the famous Resolution 242.
See http://www.2nd-thoughts.org/id45.html
- William M. Brinton, who appealed against a US district
court's withholding of State Department documents concerning US policy on
issues involvingIsrael and the West Bank,
the Golan Heights, and the Gaza Strip. He
showed that none of these areas fall within the definition of
"occupied territories” and that any claim that the West Bank, the
Gaza Strip, or both, is a Palestinian homeland to which the Palestinians
have a 'legitimate right' lacks substance and does not survive legal
analysis. According to Mr. Brinton no state, other than Israel,
can show a better title to the West Bank.
- Sir Elihu Lauterpacht CBE QC., the British
specialist in international law, who concludes inter alia that sovereignty
over Jerusalem already
vested in Israel when
the 1947 partition proposals were rejected and aborted by Arab armed
aggression.
· Simon H. Rifkind, Judge
of the United States District Court, New York who wrote an in depth analysis
“The basic equities of the Palestine problem” (Ayer Publishing, 1977) that was
signed by Jerome N. Frank, Judge of the United States Circuit Court of Appeals
Second Circuit; Stanley H. Fuld, Judge of the Court of Appeals of the State of
New York; Abrahan Tulin, member of the New York Bar; Milton Handler,
Professor of law, Columbia University; Murray L. Gurfein, member of the New
York Bar; Abe Fortas, former Undersecretary of Interior of the United States
and Lawrence R. Eno, member of the New York Bar. They jointly stated that
justice and equity are on the side of the Jews in this document that they
described as set out in the form of a lawyer’s brief.
YJ Draiman
P.S.
"who controls the
energy supply controls whole continents";
"who controls water sources controls life".
"Who controls the
food supply controls the people";
"who controls
money controls the world";
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