Israel's undisputed claim to Judea and Samaria etc. r1 - YJ Draiman

Israel's undisputed claim to Judea and Samaria etc.

Israel's undisputed claim to Judea and Samaria etc.

August 2002
US Secretary of Defense Donald Rumsfeld shocked the world when he referred to Israel's "so-called occupation" of the West Bank and Gaza. By implying that he does not consider Israel's presence in these territories to be an illegal occupation, Rumsfeld defied one of the modern world's most widely accepted deceptive dogmas. Yet the very fact that his statement was received as little short of heretical begs an obvious question: How did a label with not a shred of basis in international law turn into such a universally accepted truth? 

The standard definition of an occupation under international law is found in the Fourth Geneva Convention, which applies explicitly to "partial or total occupation of the territory of a High Contracting Party" (Article 2, emphasis added). In other words, "occupation" for the purposes of the convention means the presence of one country's troops in territory that belongs to another sovereign state the only type of entity that can be a contracting party to the convention.
But when territory that does not clearly belong to another sovereign state is captured by one of the possible legitimate claimants as, for instance, in Kashmir, which is claimed by India, Pakistan, and the Kashmiris the term generally used is "disputed," not "occupied." 

And that is precisely the situation in the West Bank aka Judea and Samaria and Gaza. 

Neither of these territories belonged to any sovereign state (historically it did belong to the Jewish people) when Israel re-captured and liberated them in 1967; they were essentially stateless territory. (Allied powers the assigned the borders of Israel in the 1920 San Remo treaty which was confirmed by the 1920 treaty of Sevres and Lausanne - The League of Nations or the U.N. cannot create of modify International Treaties, it can only recommend). Both had originally been part of the League of Nations Mandate for Palestine and, according to the UN partition plan of 1947, they should have become part of a new Arab state when Britain abandoned the Mandate in 1948. 

But since the Arabs themselves rejected this plan, not only did that state never come into being, it never even acquired theoretical legitimacy: The partition plan was no more than a non-binding "recommendation" (the resolution's own language) adopted by the General Assembly. Once rejected by one of the parties involved, it essentially became a dead letter. 

Therefore, since the Arabs rejected the partition and there was no signed treaty by both sides agreeing to such division, the real legal title falls back to the Jewish people under the San Remo Treaty of 1920, which assigned the Mandate for Palestine including both sides of the Jordan river and all of Jerusalem and designating the British as a trustee for the Jewish people.

I must also state that if you are to question the borders of Israel than you must question the borders of the other 21 Arab states and Jordan which were assigned after WWI by the same Allied powers the assigned the borders of Israel in the 1920 San Remo treaty which was confirmed by the 1920 treaty of Sevres and Lausanne.

The West Bank and Gaza were therefore not owned by any Arabs when they were seized by Jordan and Egypt, respectively, in 1948; and since their annexation by these countries was never and could never internationally recognized since it belonged to the Jewish people (Jordan's annexation of the West Bank, for instance, was accepted illegally only by Britain and Pakistan), they were still a territory which was assigned to the Jewish people under the San Remo Treaty of 1920 of which terms are valid in perpetuity in 1967. In 1987 Jordan relinquished its annexation of Jerusalem and Judea and Samaria which further confirms Israel's sovereignty over all its territory West of the Jordan river and no formal annexation is required.

Moreover, Israel had a very strong claim to both territories. Even aside from the obvious historical claim the heart of the biblical kingdom of Israel was in what is now called the West Bank (Judea and Samaria) the terms of the original League of Nations Mandate quite clearly assigned the West Bank (Judea and Samaria) and Gaza to the Jewish state.
The preamble to the Mandate explicitly stated that its purpose was "the establishment in Palestine of a national home for the Jewish people." Not the Arab people, they already received 21 states.

DOES THIS mean that all of Mandatory Palestine which included not only modern-day Israel, the West Bank (Judea and Samaria) and Gaza, but also the modern-day state of Jordan was supposed to be a Jewish state? See the San Remo Treaty of 1920 which was confirmed by the 1920 Treaty of Sevres and Lausanne and an additional answer (which should be contested by the Jewish people) can be found in Article 25, which reads: "In the territories lying between the Jordan [River] and the eastern boundary of Palestine... the Mandatory shall be entitled, with the consent of the Council of the League of Nations, to postpone or withhold application of such provisions of this mandate as they may consider inapplicable to the existing local conditions." 

No such permission, however, was given west of the Jordan. In other words, while the Mandate arguably gave Britain and the council together the right to "withhold application" of the Mandate's stated purpose east of the Jordan, the land west of this river which includes the West Bank (Judea and Samaria) and Gaza, as well as Israel was unequivocally earmarked for the Jewish national home. And the fact that both territories were captured in a defensive war from states that originally seized them from being Jewish land through armed aggression strengthens Israel's undisputed claim still further. 

How, then, did the myth of "occupation" i.e., the myth that these territories indisputably belong to someone other than Israel gain such universal credence? Sadly, the main culprit is Israel itself. 

When Israel captured and liberated the territories in 1967, the government did not assert its claim. Instead, it insisted that Israel did not want these lands and was merely "holding them in trust" to be "returned" to the Arabs in exchange for a peace treaty. And every subsequent government reiterated this line. But since no third party could be expected to press a claim that Israel refused to press for itself, the Arab claim, by default, became the only one on the international agenda. And since territories cannot be "disputed" if there is only one claimant, the only alternative was to view them as belonging to the sole remaining claimant leaving Israel as the "questionable occupier."  Additionally in International Legal Law the land belongs to the Jewish people as stated in the San Remo agreement of 1920. It can only belong to another state if and when Israel relinquishes its ownership of the land in the West Bank (Judea and Samaria) and enters into a valid treaty with another State and accepted by both parties. 
Israel did, of course, lay specific claim to one section of these territories from the start: east Jerusalem. But legally speaking, Israel's claim to east Jerusalem is no different from its claim to the rest of the West Bank (Judea and Samaria). By essentially not pursuing the latter claim, Israel badly undermined the former.
After 67 years, it may well be hard but not impossible to rectify this enormous historical error. But Israel must make the effort and demand its territories. It must explain, at every opportunity, the sound legal basis for its own claim to the West Bank (Judea and Samaria) and Gaza. To do otherwise is a dereliction of duty and it puts Israel at a disadvantage when it begins any serious future negotiations from the irremediably weaker position of a "questionable occupier." 

Judea and Samaria is Jewish territory - No annexation is required

Let me pose an interesting scenario. If you had a country and it was conquered by foreign powers over a period of time. After many years you have taken back you country and land in various defensive wars. Do you have to officially annex those territories. It was always your territory and by retaking control and possession of your territory it is again your original property and there is no need to annex it. The title to your property is valid today as it was many years before.
Annexation only applies when you are taking over territory that was never yours to begin with, just like some European countries annexed territories of other countries.

Today over half of Israel's population are Jewish families forced and expelled from Arab countries and their children and grandchildren.

The Audacity of the Arab-Palestinians and the Arab countries in demanding territory from the Jewish people in Palestine after they persecuted and expelled over a million Jewish families and their children who have lived in Arab land for over 2,400 years and after they confiscated all their assets and Real estate property 5-6 times the size of Israel (120,440 sq. km. - 75,000 sq. mi.), valued in the trillions of dollars. There was also Jewish property and land (totaling about 60,000 sq. km.) in Jordan, Gaza and across the Golan Heights under Syria's control.

Now the Arab nations are demanding more land and more compensation.

The Arab countries have forcefully chased the million Jewish families and their children and now they want to chase them away again, from their own historical land.

YJ Draiman

P.S.

Ref: article “Jewish legal rights to Judea and Samaria” By prominent International Law specialist Ted Belman, Legal Rights and Title of Sovereignty of the Jewish People to the Land of Israel and Palestine under International Law by Howard Grief, and  International law expert Julius Stone, and Eugene Rostow, Professor, Judge Stephen M. Schwebel, past President of the ICJ ... and agreed that Israel's rights would be reserved under Article 51 of the UN. and Cambridge Professor Sir Elihu Lauterpacht, Judge ad hoc of the International Court of Justice. Wallace Edward Brand, JD