“Israeli security forces revived a controversial antiterrorism policy,” theNew York Timesreported in November, “demolishing the East Jerusalem home of a Palestinian man who plowed his car into pedestrians last month, killing a baby and a young woman.” Anyone who follows the conflict knew precisely what they were going read, without a doubt, at some point in the article. And sure enough,Timesreporter Jodi Rudoren gets there eventually: Israel halted “the widespread practice in 2005,when a commission found that it rarely worked as a deterrent.” For a decade, this claim has been used against Israel. And now we know it’s false.
In an important piece on the issue on Monday, Yishai Schwartz explained how this narrative took hold:
The problem is, the commission conducted no serious study of the demolitions’ effects, and the latest evidence actually points in the opposite direction. The 2005 Times article on which much of the subsequent coverage seems to have been based is itself an overstatement of a contemporaneous account in the Israeli newspaper, Haaretz. But Haaretz made no claims about conclusive findings, simply stating that the military committee recommended ending the program and referencing a general, preliminary “study of the first 1000 days of the conflict” from 2003 that merely stated, “as of today, there is no proof” of effective deterrence from the demolitions.
The ineffectiveness trope was just simple enough for the media to understand. Schwartz explains that the Israeli leadership was looking for a justification to end the practice of demolishing the homes of terrorists. Violence from the intifada had been waning, and Israeli leaders wanted a return to normalcy of sorts.
The problem is that if home demolitions worked, how could they justify ending them? The commission’s report was not based on a real study of the practice and was never intended to be the last word on the topic. It was simply to give the political class cover. Yet the media absorbed the spin all too well, and it became conventional wisdom.
Now that conventional wisdom is about to be upended. Schwartz writes of a forthcoming study by Israeli academics (who personally weren’t exactly enthusiastic about the practice), which comes to a very different conclusion:
In fact, they found two separate correlations. Precautionary demolitions resulted in a significant increase in suicide attacks, a “48.7 percent increase in the number of suicide terrorists from an average district,” according to the study. By contrast, punitive demolitions led to a significant decrease in terror attacks, between 11.7 and 14.9 percent, in the months immediately following the demolition. The study suggests that, at least in the aggregate, terrorists can be understood as “rational actors”: “The results support the view that selective violence is an effective tool to combat terrorist groups and that indiscriminate violence backfires.”
This will not be the last word on the debate over home demolitions, nor should it be. It’s only one study, a snapshot of one (albeit important) time period. Additionally, you can separate the moral implications of the policy from its efficacy, to some degree.
I say “to some degree” because they are connected in one respect: the media can paint Israel as an irrationally violent actor if it can also declare that Israel knows the demolitions don’t have practical benefits. Of course, even if Israel believes it deters terrorism, that does not automatically give it a clean ethical bill of health. Lots of tactics would deter terrorism, many of them repellant. Israeli leaders must still grapple with the moral considerations of the policy.
There’s also a difference in how the policy is implemented. What’s interesting is that the clearly “more moral,” so to speak, use of the tactic is also more effective. Yet punitive demolitions, as Schwartz notes, can still be considered by critics to be a form of collective punishment. (Who else lives in the home? What was their involvement in the terrorist attack? These things matter a great deal.)
But there is far less ambiguity on the media’s role in all this. How this narrative formed actually belongs on the syllabus of a Media Bias 101 course (which Rudoren should take–or teach, depending on how you feel about media bias against Israel). There was a politicized commission used to produce a foregone conclusion to support a decision political leaders had already made. On top of this politicized intelligence/research, you had Haaretz report it–a sure sign of trouble ahead. When Haaretz reports something, despite its well-known truthfulness deficiency, the leftist media abroad picks it up. (Haaretz is not a newspaper for Israelis but rather for foreign correspondents.)
That means the New York Times will be among the first to broadcast it, especially if it’s critical of Israel’s security establishment, and regardless of its accuracy. That can (and will) persist even after initial stories get debunked, which is why the Western reporting on Israel is so unimaginably terrible. Will the Times stop referencing the now debunked narrative on housing demolition? Whether they do will indicate if there is still any room at all for the facts in the paper’s reporting on Israel.
Israeli settlements are more than legitimate
Critics may assail them on other grounds, but no one can deny that they are legal. In fact, the 1922 Mandate for Palestine encourages them.
President Obama asserts, seconded by Secretary of State Hillary Rodham Clinton, that "America does not accept the legitimacy of continued Israeli settlements" in the West Bank. Both have praised the 10-month freeze on new residential building -- excluding eastern Jerusalem -- that Prime Minister Benjamin Netanyahu announced late last month.
Netanyahu now calls for Palestinian Authority President Mahmoud Abbas to resume negotiations or take the blame for lack of progress when the "one-time-only" freeze expires. Abbas' precondition -- adopted after Washington's pronouncements -- is that all Israeli construction, including in eastern Jerusalem, must cease permanently.
Too bad international diplomacy doesn't have a replay button. If it did, the parties could look back at history, which would show that Israeli settlements not only are legitimate under international law but positively encouraged.
The basic relevant provision, the League of Nations' 1922 British Mandate for Palestine, Article 6, encourages "close settlement by Jews on the land, including state lands and waste lands not required for public use." Most Israeli settlements in the West Bank have been built on land that was state land under the Ottomans, British, Jordanians and, after the 1967 Six-Day War, under the Israelis, or on property that has been privately purchased.
The United States endorsed Article 6 by signing the 1924 Anglo-American Convention, a treaty stipulating acceptance of the mandate. The League of Nations is long gone, but Article 6 remains in force. The United Nations' 1945 Charter, Article 80 -- sometimes known as "the Palestine article" -- notes among other things that "nothing in the charter shall be construed to alter in any manner the rights whatsoever of any states or peoples or the terms of existing international instruments."
Eugene Rostow, U.S. undersecretary of State for President Lyndon Johnson -- who is an authority on international law and the coauthor of U.N. Security Council Resolution 242, which outlines requirements for Arab-Israeli peace -- reaffirmed this principle. In 1990, he said: "The Jewish right of settlement in the West Bank is conferred by the same provisions of the mandate under which Jews settled in Haifa, Tel Aviv and Jerusalem before the state of Israel was created."
As for Resolution 242's call for "secure and recognized boundaries," according to Rostow in 1991 in another piece, a careful look at the wrangling over the resolution in 1967 makes it clear that it did not mandate Israeli withdrawal from all of the West Bank, Gaza Strip, Golan Heights and Sinai peninsula to the post-1948 armistice lines.
Many who allege that Jewish communities in the West Bank violate international law cite the 4th Geneva Convention, Article 49. It states that an occupying power "shall not deport or transfer parts of its own civilian population into the territory it occupies." But Julius Stone, like Rostow a leading legal theorist, wrote in his 1981 book, "Israel and Palestine: An Assault on the Law of Nations," that the effort to designate Israeli settlements as illegal was a "subversion . . . of basic international law principles."
Stone, Stephen Schwebel, a former judge on the International Court of Justice, and others have distinguished between territory acquired in an "aggressive conquest" (such as Nazi Germany's seizures during World War II) and territory taken in self-defense (such as Israeli conquests in 1967).
The distinction is especially sharp when the territory acquired had been held illegally, as Jordan had held the West Bank, which it seized during the Arab states' 1948-49 war against Israel.
Further, Article 49 of the 4th Geneva Convention was intended to outlaw the Nazi practice of forcibly transporting populations into or out of occupied territories to labor or death camps. Israelis were not forcibly transferred to the West Bank, nor were Palestinian Arabs forced out of it. Two years after President Carter's State Department determined that Israeli settlements violated international law, President Reagan said flatly that they were "not illegal."
One can argue, as Reagan did and Obama does, that Israel's establishing towns in the disputed territories after 1967 obstructs diplomacy, or, as some Israeli critics do, that building Jewish communities near Palestinian Arab population centers disperses the country's Jewish majority too widely. But one cannot accurately declare the settlements illegal.
The full commentary on how the differences between the Glasgow and Edinburgh standard housebuying offers were resolved, a shorter version of which appears in the September 2009 Journal
by Paul Carnan
There have been Standard Missives Clauses for Glasgow and separate Standard Missive Clauses for Edinburgh since 2005. They are markedly similar in many respects. For all that, as a matter of practice rather than law, there are certain significant differences between the two styles.
The respective drafters believed that it ought to be possible to agree a common wording. They approached the Professors of Conveyancing and invited them to give their persuasive collective opinion on the areas of clear distinction so that a common missive could be developed for use in both cities.
The working parties of the Royal Faculty of Procurators in Glasgow and the Edinburgh Conveyancers Forum would like to acknowledge the support and assistance which they have received from Professors Brymer, Paisley, Reid and Rennie (“the panel”), without whom the Combined Standard Clauses could not have been conceived.
The panel was asked to opine on the following specific areas of distinction:
1. Definition of “the Property” within the offer letter
The Edinburgh missive states that “the Property means [insert postal address]”, and then goes on to state “together with any garden, garage, parking space and/or outbuildings”. The Glasgow missive repeats this wording and then goes on to state that there is included “all necessary rights of access and all rights exclusive, mutual and others pertaining thereto and the parts, privileges and pertinents thereof”.
The Edinburgh view is that this additional reference to rights and pertinents is unnecessary for the purposes of a standard offer. Reference to necessary rights of access is already covered elsewhere in the existing standard missive clauses for each city. In addition, there is uncertainty as to what exactly “parts, privileges and pertinents” may mean for the average modern property.
The Edinburgh preference therefore is for the more limited wording, while the Glasgow preference is for the more expansive wording, noting that Cusine & Rennie (Missives (2nd ed), para 4.08) suggests the usefulness of, and Halliday (Conveyancing Law & Practice (2nd ed), para 30.44) recommends a reference to "pertinents" as an omnium gatherum provision.
The view of the panel was:
(1) The panel doubted whether “parts, privileges and pertinents” added anything but did not feel strongly that the phrase needs to be excluded (although they would favour shortening it to “all other parts and pertinents”).
(2) In most, if not all, cases the description of a property in an offer (despite increasing sight of titles and the availability of land certificates) may still be prepared without a detailed factual investigation on the part of a client or his/her solicitor as to the extent of the property. In short, there is always a certain level of uncertainty and lack of knowledge when an offer is put in. No solicitor acting for a purchaser regularly visits the site at the time of putting in an offer for residential property, nor is there any obligation on him or her to do so. He or she may have photos of the property. On the other hand, he or she may not. The solicitor is most likely to have a postal address and his client’s description of the property.
The general clauses discussed in the alternative both try to bring in a certain “catch all” provision to deal with the uncertainty and the unexpected. That is why they use the word “any” before the reference to a garage. By necessity, the seller is still likely to know more about the property than the purchaser. It is more likely that he or she will know the true facts.
In the panel’s view, a certain balance should be struck. Although the clause may potentially be too extensive and general, it can always be amended by the seller’s solicitor when he/she prepares the qualified acceptance. In other words, there must be a certain tolerance to deal with the unknown and unexpected at the time of lodging an offer.
With that in mind, and subject to its aftermentioned comments regarding "necessary access", the panel generally favours the Glasgow wording. The standard offer is not a standard missive. The whole point is that revisals can be made in a qualified acceptance. The panel therefore agrees with the tradition of Halliday and Cusine & Rennie.
(3) The panel does not feel that there is any need to talk about access in the description of a property in the offer. If, for the sake of argument, it turned out in terms of the title that there was no access by a public street or by way of a private servitude, then the title would be unmarketable in any event. Similarly, the panel is not in favour of using general words like “necessary rights of access”. Many existing rights of access are not “necessary” at all. They are purely desirable or beneficial or even useful. They may add material value to the property but they are not “necessary”. The word “existing” is probably what was intended. Not only can the word “necessary” allow the seller to refuse to convey a second existing access because it is not “necessary”, but it could also allow a purchaser to demand a wholly new right of access which does not exist because such a new access is “necessary” and the property being sold suffers from a deficit of access rights etc. In any event, this matter is covered elsewhere in the standard missive.
2. Awareness of defects
The Edinburgh missive asks the seller to confirm that they are not aware of the property being affected by wet rot, dry rot etc, as also other specified issues (common repairs, flooding, rent registration and landfill site).
The Glasgow missive has no such provision. The Glasgow view is that such matters are for a purchaser themselves to make specific enquiry about and a selling client should not be expected to make comment on these points.
The Edinburgh view is that with due awareness of the limitations of such a clause (particularly any evidential requirement), it is of merit in at least flagging up these points and hopefully flushing out further information from sellers on occasion.
From discussion, it does appear that such a clause has been in use in the Edinburgh area for some time (certainly prior to the introduction of the standard offer), but has never had widespread acceptance in the Glasgow area. This could possibly be traced to the comments in Cusine & Rennie, Missives (2nd ed), at para 4.82.
The panel was asked to comment on whether or not it is appropriate to have some form of "state of awareness" clause.
The view of the panel was:
(1) Such “awareness” clauses are fairly widely used in practice. However, the panel feels that it is questionable how enforceable they are. Indeed, the qualification will invariably be made along the lines of “So far as the seller is aware (but no warranty is given in this respect) there are no such facts" etc. This therefore makes the argument about such matters somewhat pointless.
(2) It is usually the case that clauses of this type are deleted and a statement added in the qualification to the effect that the purchaser shall be deemed to have relied on his or her own survey – caveat emptor. The panel is concerned as to how one actually pins down “awareness”. If it can be proved that the seller boarded up dry rot then it may be straightforward. On the other hand, if dry rot fruits and there is red seed dust in the property, would every seller know that that was a sign of dry rot?
(3) The panel believes that this is something which the home report should identify. The risk of having such a clause is that it is almost bound to be qualified as aforesaid. However, a purchaser may erroneously think that he or she is absolutely protected should a defect arise. The panel is therefore of the view that it is better to have a clear cut situation where the purchaser knows that he or she has no guarantee as to the state of repair of the property.
The panel can see the argument to the effect that it is best that there is disclosure and full information. However, a selling solicitor, if he is doing his/her job, will always get his/her client out of potential liability. Whether that position is capable of being sustained when a home report has been exhibited is a matter on which the panel has not been asked to comment. Accordingly the panel would prefer to be realistic and let the purchasing client know that this is a matter to be enquired about by him/her at his/her own risk. In any other respect, the purchaser is being given a false sense of reassurance. The purchasing solicitor should make it clear to his/her client that there is no reassurance in the missives in this regard, so that the client will buy into the fact that he/she has a certain degree of responsibility.
The panel accepts that there may well be resistance in Edinburgh to deleting this provision, which has been in use for a long time. As against that, however, the members of the panel have never come across a case where anyone has tried to enforce such a clause, which suggests that it is perhaps of little practical value. The clause may possibly have some deterrent effect inasmuch as it may induce a deluge of confession from the seller. It is certainly more effective in this regard than a casual question from the purchaser when looking round the house; and in practice it is unrealistic to expect purchasers to interrogate sellers on all the matters which the clause covers. In short, the deletion of the clause will remove some of the protection currently afforded to purchasers in Edinburgh, but the panel believes that the effect is likely to be marginal and, as explained above, most of this protection is illusory.
3. Provision of guarantees/specialist reports
In relation to the provision of guarantees/specialist reports, the Glasgow missive provides for delivery of “any guarantees in force” in respect of specialist treatment. The Edinburgh missive also provides for delivery (although places a 20 year time limit in this regard). Edinburgh however goes further by stating that in the event that such documentation is deemed to be “materially prejudicial to the property or the Purchaser’s proposed use of same”, the purchaser then has a right to resile subject to due notice etc.
It has been noted that other standard offers may provide for delivery of valid and/or enforceable guarantees but do not provide for a right to resile. An argument has been made that any guarantee by virtue of being at least in force can never be deemed to be prejudicial. Against that, a view has been expressed that a guarantee for tenement repairs may disclose an unsatisfactory position.
The view of the panel was:
The panel considered that the following would be the most equitable approach in this regard in connection with delivery of specialist documentation and/or linked to a right to withdraw:
(1) There are of course guarantees and guarantees. A specialist guarantee is not like an NHBC guarantee; it is only as strong as the party who actually gives it. There are two situations which can arise. In the first place, a surveyor for the purchaser (or indeed the independent surveyor) may discover some defect which would require specialist treatment. In such a case, it is obviously very important that any existing guarantee and the specification indicating what is guaranteed is made available.
On the other hand, there may be situations where the surveyor picks up no defect but there is still a guarantee for work which has been properly done, say 15 years ago with five years of the guarantee left to run. The panel does not favour a clause which would allow a purchaser simply to pick technical holes in the guarantee and then rescind even although there was no suggestion that the work had not been done properly. The Glasgow clause covers such a situation. If there is a guarantee, for say double glazing or dry rot, then it must be handed over. In the opinion of the panel, this is sufficient.
(2) If it is the former case where the surveyor has picked up a problem and the seller says that there is a guarantee, then the panel believe that the missives require to be tailored to suit that situation with an extra clause to the effect that it will be shown that the guarantee is enforceable and does cover the defect as disclosed by the surveyor.
(3) The panel also believe that it is possible that there might be some limited circumstances where it would be appropriate to allow a right of rescission, but in the present form the clause is far too wide and creates considerable uncertainty. If a right to resile is to be retained, it would need to be much more carefully targeted. In other words, it would be necessary to decide what mischief, precisely, the provision is designed to solve, and then to draft the clause so as to target that mischief alone.
4. Awareness of developments
The Edinburgh missive requests a statement from a seller that they are not aware of “proposals, applications or redevelopment plans”.
The Edinburgh view is that this is beneficial in that it will again provide in certain cases information regarding possible developments which have not yet reached formal planning application stage (or indeed proposals which may not result in a formal neighbour notice being served, due to the technical criteria in that regard).
The Glasgow view is similar to their position concerning "awareness of defects" (section 2 above): such matters are for a purchaser him/herself to make specific enquiry about and a selling client should not be expected to make comment on these points. There does therefore appear to be a difference of opinion regarding the necessity of these awareness provisions as a matter of principle.
The view of the panel was:
(1) While accepting that there can often be benefits of such “awareness” provisions, the panel is of the view that they can be potentially dangerous. Such provisions are widely used in practice but the panel would question whether or not the implications have been fully considered.
(2) The panel is generally not in favour of clauses which result in uncertainty and argument. The Edinburgh general clause is a “catch all” clause. How would one be aware of an application for planning for an adjoining property, however, unless there had been neighbour notification or a notice in the local newspaper?
(3) There is more difficulty with the words “proposals” and “redevelopment plans”. For example, if there have been suggestions that an area of ground in the vicinity of a property being sold is to be used for housing, is that a “proposal” or a “redevelopment plan” in some drawing office? Would the seller require to jeopardise the sale of his/her house by disclosing that there are proposals in this regard? In practice, such clauses tend to be qualified either by deleting them with reference to a property enquiry certificate which is to be delivered in terms of the missives, or by stating that the seller has not received written notification of any such proposal. The latter is a more clear cut situation.
The panel is mindful in this regard of a number of opinions which have been given in professional negligence cases where a purchaser suddenly discovers that there is a development to take place say half a kilometre away from the property across a field in an adjoining field which, because he/she cannot sell his/her house now, he/she feels ought to have been disclosed. The panel is of the view that we must always bear in mind that if standard clauses become “standard” they also become the standard or the benchmark for negligence.
5. Liability for statutory notices
Whilst the Edinburgh and Glasgow clauses were very similar in this connection, there is one substantial point of difference between them, namely the date given for transfer of liability for local authority repair notices from seller to purchaser. In Edinburgh the watershed date is the date of conclusion of the missives whereas the date in Glasgow is the date of entry. It is believed these provisions reflect longstanding practice in each city.
It is believed that the distinction may reflect the situation that in Glasgow many tenemental properties are factored, whereas in Edinburgh few traditional tenements are (with the co-proprietors relying on the local authority to perform such a role). There is little doubt that in Edinburgh the local authority has been active for many, many years in issuing local authority repair notices and orders, particularly as they have the ability to do so in terms of local subordinate legislation.
The Edinburgh position however is also based on the argument that a purchaser is expected to acquire a property “as seen”. In the case of a tenemental property this includes the common fabric of such items as the roof, common passage and so forth. In addition, it has generally also been considered inequitable for a seller to avoid liability for a statutory notice which has been served during his or her period of ownership (the practical issue here, as we presume the professors are aware, is that in terms of the relevant legislation local authorities have power to issue invoices for the actual repair costs on the owners at the time of preparing such invoices and not on the owners on whom the notices were originally served).
In addition, due to the proactivity in Edinburgh of the local authority, there is a substantial practical concern that if the watershed became the date of entry, an unscrupulous buyer would find it relatively easy to approach the local authority to instigate statutory notice procedures in any gap period between conclusion of missives and date of entry. The end result would be that the buyer achieves a property in better condition than that originally inspected and/or surveyed by them.
It should also be noted that there is a growing practice at least in Edinburgh that the local authority takes the opportunity, having served a notice, to actually carry out additional and more extensive repair and improvement works to a tenement that go substantially beyond the strict terms of the original notice. There is in fact growing concern at the “windfall” benefit buyers can obtain in this regard.
The view of the panel was:
That the arguments in favour of Edinburgh's position with regard to this matter were more persuasive, and that the watershed date for the transfer of liability for local authority repair notices from seller to purchaser should be the date of conclusion of missives.
6. Listed building consents
Both the Edinburgh and Glasgow missives adopt the view that local authority documentation for previous alterations is only looked for in respect of work carried out within the period of 20 years preceding the date of entry.
The practice in Edinburgh however is that whilst this time limit is accepted for building control paperwork (that is, building warrants and certificates of completion), in connection with the need for possible listed building consents under the relevant planning legislation no time limit is given. In effect such consents are requested for works carried out since the date of listing of the property in question, which in practice may be well outwith the 20 year period.
The logic for this reflects the terms of the relevant legislation, which does not give any time limit on the local authority for enforcing such consents (or rather lack of same). The Edinburgh concern is also reflected in the fact that a large proportion of the city is within either a conservation area or separately listed.
The view has been expressed however that such concern for listed building consents is illogical, bearing in mind the 20 year period is accepted for other local authority consents which, strictly speaking, are also not limited in time for enforcement.
The question therefore for the professors is whether or not it is appropriate to accept a 20 year cut-off point for such listed building consents in the same manner as other local authority documentation.
It should be noted that the Glasgow missive accepts the 20 year cut-off point for such consents.
The view of the panel was:
That a 20 year cut-off for listed building consents is preferable.
7. Declarations of trusts in dispositions
The panel was not in favour of trust clauses. Put bluntly, trust clauses in dispositions have never really worked. The deed of conveyance containing such a clause is arguably internally inconsistent. There is no clear trust purpose. In any event, it is the view of the panel that the clause is now also not necessary because of the bankruptcy legislation changes (see s 17 of the Bankruptcy and Diligence etc (Scotland) Act 2007). For a full statement of the reasoning against trust clauses in dispositions, see Reid & Gretton, Conveyancing 2004, pp78-85.
If, contrary to the view of the panel, such clauses do work to create a trust, then it appears to the panel to be the case that they seem to jeopardise the protection afforded to a purchaser by the "offside goals rule", and seem also to open the door to a second grant having effect because of the provisions of the Trusts (Scotland) Act 1921, s 2. There may also be possible limiting effects on the Keeper's indemnity.
The view of the panel was:
That the trust clause device in dispositions should be eradicated.
The combination of the Glasgow and Edinburgh standard clauses into a single set of clauses – the Combined Standard Clauses (2009 edition) – common to both regions will greatly enhance the house buying and selling process, creating more certainty in the process, together with reduction in the time taken and costs incurred in concluding missives. Practitioners will have the comfort of knowing that, as long as they adopt the Combined Standard Clauses, they are compliant with current best practice so far as the conveyancing professors are concerned.
It is intended that practitioners will use the Combined Standard Clauses from 1 October this year. From and after that date, a pdf version of the Combined Standard Clauses will be available on the websites of both the Royal Faculty and the Edinburgh Conveyancers’ Forum, and will also be available on the Law Society of Scotland website. There will also be a client guide and a practitioners guide (both of which will be freely available to use/adapt) to support the introduction of the Combined Standard Clauses.
Paul Carnan is a Glasgow member of the joint working party which agreed the terms of the Combined Standard Clauses
INTERNATIONAL LAW REGARDING THE LAND OF ISRAEL AND JERUSALEM by Elliott A. Green
International law is often cited as a pretext for the policies of Western governments and human rights agencies toward Judea, Samaria, and Gaza in general and Jerusalem in particular. A certain assumption or presumption about the international law status of these areas is the premise for claims that they are "occupied territory," that Israeli construction in formerly Jordanian-ruled parts of Jerusalem is "illegal," etc.
Given the centrality of allegations about international law in the diplomatic and political assaults on Israel made by such bodies as the European Union, the UN General Assembly, and others, there is a need to know, to understand and to expound the true international law concerning the Land of Israel as a matter of sheer political self-defense. What indeed has been the status of Judea, Samaria, and Gaza under the law of nations?
International law has recognized Jewish rights to sovereignty over the Land of Israel and to settlement throughout the land. In April 1920, at the San Remo Conference (part of the post-World War I peace negotiations), the Principal Allied Powers, acting on behalf of the international community, recognized all the land between the Jordan River and the sea, including Jerusalem, as part of the Jewish National Home, based on the Jewish people's historic rights. On the same grounds, the Golan and Transjordan too were within the National Home (albeit the eastern border of the National Home, though clearly east of the Jordan, was not yet fixed).
The San Remo decision meant also the juridical creation of "Palestine" as a political entity as well as the introduction of that name as the official geographic designation for the new entity. During the centuries of Ottoman rule, the country was divided among larger administrative entities with their capitals outside the country, the vilayets of Beirut and Damascus, although in the mid-nineteenth century, as a consequence of increasing influence by Christian powers on the Ottoman Empire and Jerusalem's political sensitivity due to the Christian powers' interest in the city, the Jerusalem area was made into an independent sanjaq (district). It was called "independent" because its governor reported directly to the Ottoman capital, Istanbul (then called Constantinople in the West), not to a provincial (vilayet) governor.
Furthermore, Arab-Muslims traditionally saw the land as an undifferentiated part of Bilad al-Sham, usually translated as Syria or Greater Syria, which comprised the Syria, Lebanon, Israel and Jordan of today, roughly speaking. Before the Crusades, the Arab-Muslim conquerors had designated the southern part of Israel (roughly speaking) as the military district of Filastin, corresponding to the Roman-Byzantine district of Palaestina Prima (one of three parts of Palaestina). The Crusaders ordinarily called the country Holy Land (Terra Sancta). Use of the name Filastin was not resumed by Muslim rulers after the Crusades. Under the Mamluks and Ottomans, Bilad al-Sham underwent several administrative reorganizations, changes of internal borders, etc. But there was never a Muslim governmental unit of any name that corresponded geographically to the Jewish concept of Land of Israel or the Greco-Roman Judea (= IUDAEA, which included Samaria, Galilee, Golan, the coastal plain, the Jordan's eastern bank, etc., in addition to Judea in the narrow sense). Emperor Hadrian had renamed the Province of Judea (= Provincia Iudaea) "Palaestina" (ca. 135 CE) for imperialist reasons.
Hence, the Arab-Muslim geographic concept differed radically from that of Jews and Christians. Further, whereas both Jews and Christians saw the country as a distinct geographic concept, they tended to use different names for it. In Jewish tradition the land was long called the Land of Israel, while Christians, through the nineteenth century, were likely to call it Holy Land (according to their various languages, that is, Terre Sainte, etc.), with Palestine, Judea, Land of the Bible, etc., as alternate names.
The San Remo decision for the Jewish National Home was ratified by the the League of Nations in 1922 and endorsed by a joint resolution of the United States Congress that same year, with a more official US endorsement coming in the Anglo-American Convention on Palestine (proclaimed 1925).
This legal state of affairs was expounded in a legal memorandum drawn up in 1946  by a group of distinguished American-Jewish jurists including Judge Simon Rifkind, Abraham Fortas (later appointed to the Supreme Court), and others.
To measure the extent of American commitment to the National Home at the beginning, we may quote from the terminology of the time: "RES. 52: Expressing satisfaction at the re-creation of Palestine as the national home of the Jewish race" (House Committee on Foreign Affairs). "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..." (1922).
Because the legal issue is once again very much alive, a brief survey of the matter is useful, with particular reference to Jerusalem. By the time the League of Nations was replaced by the UN in 1945, Britain had illegally tried to revoke the Jewish National Home, violating the principles of the League's mandate. This attempt was embodied in the Palestine White Paper of 1939, on the eve of the Holocaust, and in various subsequent ordinances enacted by the British mandatory government, which made it very difficult for Jewish refugees to enter the country and forbidding any Jews to buy real estate in most of the country. Nevertheless, this British attempt to change the country's status was rejected as illegal by the League of Nations Permanent Mandates Commission in June 1939.
When the UN was founded in 1945, it reaffirmed through its Charter the existing territorial rights of peoples as they had been before the war (Article 80). This applied of course to the Jewish National Home. However, many or most people today are either not aware that the whole country constituted the Jewish National Home, or believe that the UN had somehow eliminated this status and, in any case, had fixed legal boundaries for Israel through the 1947 Partition Resolution. Yet the 1947 resolution was passed by the General Assembly. And all General Assembly resolutions on political issues are merely recommendations.
The UN Charter states, defining the powers of the various UN bodies: "The General Assembly may discuss any questions relating to the maintenance of international peace and security... and... may make recommendations with regard to any such question" (Article 11; also see Arts. 10, 12, 13, 14). Only the Security Council can make binding resolutions, according to the Charter.
Now the Partition Plan, in a not uncommon display of political irrealism, recommended two states in the former mandatory Palestine west of the Jordan, one Jewish and one Arab, plus a special status for Jerusalem (The British had separated Transjordan unilaterally from the Jewish National Home in 1922, although not de jure). The Holy City was to be an internationally governed corpus separatum. While the Jewish leadership accepted the Plan, the Arab governments and local Arab leadership universally rejected it. After the war had begun the UN made no effort to prevent the invasion of the country by Arab states, to prevent Arab attacks on Jews within the country or to eliminate the Arab siege of the Jews in Jerusalem, a city where Jews had been the majority at least since 1870. Thus Israel did not feel bound by the Partition recommendation. Professor Eugene Rostow, an authority on international law, has pointed out that the Arab war on Israel of 1947-49, "made the Partition Plan irrelevant."
After the battles of the War of Independence had ended, Israel and four Arab states signed armistice agreements. The accord with Jordan (then called Transjordan) specifically stated that no political border with Israel was being recognized, merely an armistice line (the "green line"). And this at Arab insistence! Arab spokesmen repeated this on later occasions. For instance, the Jordanian delegate to the UN told the Security Council a few days before the Six Day War:
There is an Armistice Agreement. The Agreement did not fix boundaries; it fixed a demarcation line. The Agreement did not pass judgement on rights - political, military, or otherwise. Thus I know of no territory; I know of no boundary. (May 31, 1967)
Obviously, since no political border between Jordan and Israel was recognized, then the prior legal status prevailed - that is, the Jewish National Home recognized and constituted in 1920 at San Remo. Hence, the areas that Jordan called "West Bank," as well as east Jerusalem (which had thousands of Jewish residents before 1948), remained part of the National Home even during Jordanian occupation. The Assembly's repetitions of its Jerusalem recommendation (GA resolutions 194, 303, etc.) could not change this. Nor did the Security Council change the status of Jerusalem by its famous Resolution 242 after the Six Day War.
Although the Council's resolutions are said by the UN Charter to be binding, this resolution did not specify what territories were "occupied." Perhaps the Council was referring to the Sinai Peninsula, occupied by Israel in that just war of self-defense. Furthermore, the Council could not legislate ex post facto, after the fact, to take away the already existing rights of the Jewish people. According to Professor Rostow, "The withdrawal of Great Britain as administrator and trustee did not of course terminate the Mandate as a trust [for the Jewish people]."
Jerusalem of course took a special place in the age-old yearning for a restored Jewish National Home. And in Jerusalem too this yearning ran into opposition not just from Arabs but from Western powers (and others following their lead). They have long refused to recognize any part of Jerusalem as part of Israel, nor do they recognize the Holy City as Israel's capital. Their pretext is the separate status provided for Jerusalem in the Partition Plan. Yet this Plan was merely an Assembly recommendation, whereas the San Remo decision of 1920 was law. Thus, the refusal of the powers to transfer their embassies to Jerusalem, which means refusal to accept the city as Israel's capital, has no foundation in law.
Obviously, the refusal has its reasons. It may stem from the same reasons that induced the British to allow Arab mobs in a series of pogroms (1920, 1929, 1936-38) to drive Jews away from the neighborhood of Jewish holy places, such as the Temple Mount and the Cave of the Patriarchs in Hebron. It may be related to Britain's reasons for appointing Arab mayors for Jerusalem throughout the whole mandatory period, despite the Jewish majority since at least 1870. Now the Ottoman Empire did the same up to 1917, but then the Ottoman Empire was an avowed Muslim state, whereas the British had accepted an international commitment (the Mandate) to foster development of the country as the Jewish National Home.
It is clear that according to the San Remo decision of 1920 and the League of Nations vote of 1922 for the Jewish National Home, Israel's extension of its jurisdiction over all Jerusalem since the Six Day War is legal and proper.
Nevertheless, self-serving interpretations of law are often made by interested parties. In the case of Israel, such interpretations provide pretexts for declarations by governments and groupings of governments - the Arab League, the European Union, the UN General Assembly - that are hostile to Israeli sovereignty in Jerusalem (or indeed anywhere in the country). Such false and hostile interpretations remind us that we dare not place our trust in law or international accords. Yet, the outbursts in the form of declarations and resolutions based on these interpretations have more force and cause more damage than many friends of Israel seem to realize, although they may be less effective than their authors would like). And thus they need to be answered.
1. The Golan was an original part of the Jewish National Home as decided at San Remo and had been populated and ruled by Jews in Second Temple times and afterwards. In 1923, the British authorities transferred the Golan to the French mandate of Syria without approval of the Zionist Organization.
2. Simon Rifkind, Abraham Fortas, et al., Basic Equities of the Palestine Problem: A Memorandum (1946) [reprinted New York: Arno Press, 1977].
3. We shall use the Rifkind-Fortas memorandum, our own study of the UN Charter and subsequent UN acts, writings of Prof. Julius Stone and Prof. Eugene Rostow, and various historical information. We have also benefited from conversations with Attorney Howard Grief of Jerusalem, a former advisor on international law to the Israeli Ministry of Energy, who has done research into the Balfour Declaration, the San Remo Decision, the League of Nations Mandate, etc., up to the series of agreements going by the name of the Oslo Accords. The conclusions are my own.
4. Eugene Rostow, "Resolution 242 at Twenty," Jerusalem: Institute for Advanced Strategic and Political Studies, 1988, p 5.
The author is a researcher, writer and translator, living in Jerusalem.
This is a revised version of an article published in Midstream (New York) in February/March, 1999.