THE LEGAL CONSEQUENCES OF THE ISRAELI GOVERNMENT'S ABANDONMENT OF JUDEA AND SAMARIA
by Howard Grief
TO Members of the Lev Ha'Aretz Group
The core thesis of my book, The Legal Foundation and Borders of Israel under International Law, is that de jure sovereignty over all of Eretz-Israel was vested in the Jewish People, i.e., world Jewry, as a result of the adoption of the San Remo Resolution of April 25,1920 by the Principal Allied Powers of World War I (Britain, France, Italy and Japan), a coalition of nations that defeated and dismembered the Ottoman Turkish Empire and then allotted those lands to various national beneficiaries.
In 1920, there was of course no State of Israel, but the Zionist Organization (now called the World Zionist Organization) represented the national aspirations of the Jewish People to bring about a future independent Jewish State. In 1929, a second representative body was formed: the Jewish Agency for Palestine Israel Palestine May 15,1948 . In point of law, de jure sovereignty over the land of the Jews was devolved or transferred from the Jewish People via the Zionist Organization and the Jewish Agency to the State of Israel as of that date. However, the devolution of sovereignty was exercisable — in a de facto sense — only over those areas of the Land of Israel
The situation was drastically changed by the Six-Day War of June 5-10, 1967 when eastern Jerusalem Judea , Samaria Gaza Golan Heights and Sinai were all liberated from foreign Arab occupation by the Israel Defense Forces. The astounding Israeli victory in the war was, however, accompanied by a legal farce perpetrated by the legal advisers of the Eshkol National Unity Government, chief among whom was the then-Military Advocate-General Meir Shamgar, the future Attorney General and President of the Israel Supreme Court. Instead of applying Israeli law to the liberated territories, as required by the then-existing Israeli constitutional law, the Eshkol Government — acting on Shamgar's misguided advice — shortsightedly and unconstitutionally applied international law (i.e., the laws of war, embodied in the Hague Regulations of 1907 and the Fourth Geneva Convention of 1949), thus creating the harmful world-wide impression that Israel was henceforth an Occupying Power of "foreign lands" belonging to Arab states. That is the only reason why Judea , Samaria Gaza Israel Israel
Under Israeli constitutional law that existed at the outset of the Six-Day War, the government of Israel was legally obliged to apply the law of the State of Israel — and not international law — to the liberated territories. This obligation was inherent in the 1948 law known as the Area of Jurisdiction and Powers Ordinance and the two Proclamations issued under its provisions, namely, the Jerusalem Proclamation of August 2, 1948 and the all-embracing and open-ended Land of Israel Proclamation September 2, 1948 . These enactments had one purpose only: to extend the area of the Jewish State beyond its narrow borders as recommended in the UN General Assembly Partition Resolution of November 29, 1947 in order to embrace and incorporate into the State all other areas of the Land of Israel
The pressing question that arises at this point is what would happen if, instead of incorporation or annexation, the Israeli Government decides to abandon or cede Judea , Samaria Gaza Samaria Judea and Samaria
The sovereignty now vested in the State of Israel over Judea and Samaria, but which is inexplicably neither asserted nor even recognized by the Israeli Government, can, in my opinion, be exercised by the 300,000 or more Jewish residents of Judea and Samaria in the event and only in the event that the Government of Israel withdraws completely from this territory and leaves it once again to the mercies of Arab terrorists. As a matter of law, it should always be remembered that the State of Israel acts only in the role and capacity of agent and assignee of the Jewish People, and simply has no legal authority to renounce the right or rights that legally belong eternally to the Jewish People as a whole, not only of this generation but also of all future generations, as Ben-Gurion noted at Basel in 1937. Thus if the State acts contrary to its power as agent and assignee of the Jewish People who are directly and adversely'affected by its renunciation of the right of sovereignty over Judea and Samaria and its transfer of de facto control over the land to an Arab entity, i.e., to the "Palestinian Authority" or the "Palestine Liberation Organization", then the right of sovereignty reverts back to the Jewish People, the original and implied sovereign of Palestine under the San Remo Resolution, and as a result other representatives of the Jewish People can legally act in its place and stead. This applies particularly to the Jews of Judea and Samaria who are part and parcel of the Jewish People in whom sovereignty over all areas of Eretz-Israel ultimately vests, who presently implement Israel's de facto sovereignty over Judea and Samaria and who would suffer great injury by any decision of the Government of Israel to cede Judea and Samaria to foreigners.
The Jews of Judea and Samaria would, in fact and in law, be well within their constitutional rights to remain living in those territories under the most significant law of the State of Israel, the Law of Return, that enshrines in its provisions the two-thousand-year-old Jewish Right of Return and, assuming Government abandonment, to take the necessary steps to govern themselves in an independent State of Judea and Samaria.
Howard Grief is an eminent international lawyer and author of "The Legal Foundation and Borders of Israel June 15, 2010 .
A LANDMARK WORK
by William Mehlman
Author: Howard Grief "The Legal Foundation and Borders of Israel under International Law"
Pub Date: October 2008
ISBN-10: 9657344522,
ISBN-13: 9789657344521
Publisher: Mazo
(mazopublishers@gmail.com)
With The Legal Foundation and Borders of Israel under International Law (Mazo Publishers, Jerusalem Israel
It is a lengthy treatise — 660 pages plus a 50-page appendix — but the Jewish people's long and tortuous struggle to retrieve their stolen patrimony deserves nothing less than full disclosure. Anyone who has ever been at a loss to counter the slanders and calumnies that are the stock in trade of the Israel-bashers and anti-Semites on both the Left and Right will treasure every one of its 20 illuminating chapters.
Rooted in the premise that the best antidote to a myriad of small and medium sized fabrications is the exposure of the whole cloth from which they've been woven, The Legal Foundation lays bare two dominant myths that have shaped popular perspectives on Israel land of Israel May 15th, 1948 termination of the British Mandate for Palestine Palestine
How "binding" may be construed from the fact that its wording gave effect to the provisions of Article 22 of the Covenant of the League of Nations and became incorporated into the Mandate for Palestine
That the Jewish People were unable to exercise their sovereignty in Palestine for 28 years — it being assigned to the British Mandatory power as their de facto agent — did in no way detract from their de jure rights to the land under international law during that interregnum. In this thesis, Grief is ironically supported by both a passionate Zionist, U.S. Supreme Court Justice Louis D. Brandeis and one of Zionism's most implacable opponents, post World War I British Foreign Secretary Lord George Nathaniel Curzon. Brandeis believed that with the passage of the San Remo Resolution, the debate over who owned Palestine
From the initial misattribution of Jewish sovereignty in Palestine to the 1947 Partition Plan rather than the 1920 San Remo Resolution, it was just a hop and a skip to a second major misrepresentation of Israel's international legal status — the erroneous assumption that the Partition Plan and the May 1948 termination of the British Mandate somehow erased the Jewish People's rights to Palestine in all its historical parts and dimensions enunciated at San Remo, and implemented under the terms of the League of Nations Covenant. Those "parts and dimensions" were defined inter alia, as including the northwestern portions of the Golan and most of present day Jordan Paris
The presumptive cancellation of those rights, Grief submits, is thoroughly discredited by "the principle of acquired rights," codified in the 1969 Vienna Convention on the "Law of Treaties," and the "doctrine of estoppel." The first, he asserts, insures that "the fundamental rights of the Jewish people did not lapse with the international process [the San Remo Resolution] which brought them into existence. The second further guarantees that these rights cannot "simply be abrogated or denied by those states which previously recognized their existence." Taken together, they provide what the author terms a "definitive answer [to] anyone who claims that Jewish legal rights and title of sovereignty over all of Palestine and the land of Israel did not continue after the end of the Mandate for Palestine...except in the allotted boundaries of the UN Partition Plan..."
Noteworthy among the states that wholeheartedly endorsed Jewish sovereignty over Palestine United States of America Israel Judea and Samaria Palestinian State
It needs to be borne in mind, Grief notes, that the Mandate for Palestine U.S. U.S. Judea and Samaria Palestinian State Palestine America
The Legal Foundation and Borders of Israel under International Law is the product of 25 years of independent research by Grief, a former adviser on international law to the late Professor Yuval Ne'eman, Minister of Energy and Infrastructure in the Shamir government and the father of Israel's nuclear energy program. It is the kind of seminal work that seems destined to become both an indispensible source for defenders of Israel's rights under international law and a mirror on the events and personalities that transformed a November 2, 1917 letter from British Foreign Secretary Lord Arthur James Balfour to Lord Lionel Walter Rothschild into the trumpet call that awakened Jewish nationhood from a 1,900-year coma.
The author's unsparing portrayal of France's opposition to the creation of a Jewish state at San Remo and, when thwarted, its efforts at the Franco-British Boundary Convention to confine it to the narrowest geographical limits, should dismiss any notion that French anti-Zionism began with De Gaulle. By the same token, the Zionist sympathies attributed to Winston Churchill by Martin Gilbert and other historians withers in the face of the 1922 "White Paper" attached to his name as then Colonial Secretary. Grief offers irrefutable evidence of its having not only "negated" the Jewish state in Palestine that the Mandate "required" of Britain, but of having elevated "Arab pretensions and aspirations to such an extent that everything thereafter became muddled...subject to continuous disputes as to what was really intended in the Mandate for Palestine."
For the actual authorship of that document and the wreckage it made of the original plan for the establishment of a Jewish state in all its "historic parts and dimensions" under British tutelage, we have Herbert Samuel to thank–the same Herbert Samuel who worked closely with Chaim Weizmann in the Zionist Organization and was later to pack it in for a "Lordship" and an appointment as British High Commissioner to Palestine. In ironic contrast, Lord Curzon, Balfour's successor as Foreign Secretary, who "detested" the idea of a Jewish state, put loyalty above personal feelings at San Remo Paris
On the Jewish side, nobody comes off better in this saga than Brandeis, who Grief portrays as "the only Zionist leader...who properly understood the natural consequences of the legal recognition of the Balfour Declaration embodied in the San Remo Resolution." Had Brandeis headed the Zionist Organization, the author believes, "there is little doubt that he would have successfully halted Britain
At the end of the day, it was Menachem Begin who provided the most heartbreaking counterpoint to Lloyd George's vision of a Jewish state reconstituted in most, if not all of its Biblical parts, Grief submits. Begin, national Zionism's anointed champion, bearer of the torch lit by Herzl and passed to Jabotinsky, not only failed to make Israel constitutionally whole by annexing Judea, Samaria and Gaza (as he was expected to do), but in what the author describes as an act of "unimaginable folly," brought to the Knesset in 1977 a plan to establish Arab "self-rule" over those critical portions of the Jewish estate. In so doing, he opened the portals wide for their identification as "unalloted," "disputed" and finally "occupied" territories.
Nine months later, in September 1978, Begin crowned his "achievement" by injecting the "self-rule" proposal into the negotiations with Egypt Camp David , offering to leave the final determination of sovereignty over Judea , Samaria Gaza Israel
William Mehlman is Americans for a Safe Israel Israel Mideast Outpost (http://mideastoutpost.com/archives/000590.html).
THE QUESTION OF THE APPLICABILITY OF THE FOURTH GENEVA JUDEA , SAMARIA GAZA
by Howard Grief
The legal question of the applicability of the Fourth Geneva Convention of 1949 to Judea , Samaria Gaza
The relevant paragraphs of Article 2 read as follows:
In addition to the provisions which shall be implemented in peacetime, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.
The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance (emphasis added).
The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance (emphasis added).
The relevant paragraphs of Article 6 state:
The present Convention shall apply from the outset of any conflict or occupation mentioned in Article 2.
In theterritory of Parties
In the
In light of the fact that Article 2(1) of the Convention applies to all cases of declared war or armed conflict between two or more of the High Contracting Parties and that the states engaged in the Six-Day War were and remain parties to the Convention, there can be no doubt that at the outset of the war on June 5, 1967 until its conclusion on June 10, 1967, all the provisions of the Convention applied to each of the combatant states of Israel, Egypt, Jordan and Syria and to the territories that Israel brought under its military control as a result of the war, regardless of their legal status or sovereignty at the time and regardless of whether or not they were to be considered "occupied territories" under international law. During the war, the Convention also applied regardless of the formalistic question of whether it represented treaty law that required incorporation into the domestic law or customary law that did not require such incorporation. The discussion here will be limited to the applicability of the Fourth Geneva Convention to Judea , Samaria Gaza June 10, 1967 when the state of active war or hostilities between Israel
To begin with, it is important to note that the "military operations" referred to in Article 6 of the Convention ceased altogether on June 10, 1967, in accordance with three UN Security Council resolutions passed during the Six-Day War demanding an immediate cease-fire.[1] This call for a cease-fire was accepted by Israel and Syria between whom active fighting was still raging on the Golan Heights. The state of war may have technically continued to exist between Israel Syria Egypt Jordan
Article 6 distinguishes between two kinds of territory: 1) the territory of the parties to the conflict, and 2) occupied territory. In the case of the former, the application of the Fourth Geneva Convention ceases "on the general close of military operations". But in the case of the latter — "occupied territory" — the Convention continues to apply until one year after the close of military operations and even beyond that date if the Occupying Power exercises the functions of government in such territory.
Inasmuch as the Six-Day War was not fought, neither within the existing borders of the State of Israel, nor within the borders of Jordan on the east bank of the Jordan River — the only recognized borders of the country under international law, the Convention was no longer applicable to those specific areas after the cease-fire or cessation of hostilities, except for those provisions of the Convention "which shall be implemented in peacetime". The question of the further applicability of the Convention then turns on the question of whether Judea, Samaria and Gaza were "occupied territories" belonging to the Kingdom of Jordan and/or Egypt within the meaning of both Article 6 of the Convention and Article 42 of the Hague Regulations of 1907. These regulations constitute an annex to the Fourth Hague Convention Respecting the Laws and Customs of War on Land.
Article 42 of the Hague Regulations defines territory as being occupied when the territory of the Hostile State Hostile State
At the conclusion of the Six-Day War, the territories of Judea , Samaria Gaza Jordan Egypt Jordan Egypt Palestine
Despite the fact that Israel never occupied the sovereign territory of another Arab state or people, within the meaning of the Fourth Geneva Convention and the Hague Regulations, it has been falsely branded as an occupier of "Arab land". This accusation has no basis in law but has persisted because of the false belief that has been nurtured since 1969 by the United Nations and the Arab States Israel Palestine Palestine Israel Israel Israel
Finally, it should be noted that the legal term "occupation", as defined in international law, refers only to the occupation by a hostile army of territory belonging to a state. It does not refer to the people living in "occupied territory", who as non-nationals of the Occupying Power enjoy the status of "protected persons" under the Fourth Geneva Convention. In reconquering areas of the Land of Israel in June 1967, what the Israeli Defense Forces really did was "repossessing" lands internationally recognized ever since 1920 as belonging to the Jewish People, as originally reflected by the Hebrew phrase for those lands: shtahim muhzakim ("held" areas). This stressed that it was land, rather than people, that was repossessed. It is therefore a gross misuse of the term "occupation" to refer to Israel Israel Judea , Samaria Gaza United States Iraq Israel Israel land of Judea Samaria Gaza Israel Israel Land of Israel
End Notes
[1] The three Security Council resolutions calling for a cessation of all military activities, all of which were adopted unanimously, were: 1) Resolution No. 233 of June 6, 1967; 2) Resolution No. 234 of June 7, 1967; 3) Resolution No. 235 of June 9, 1967.
[2] In interpreting the text of a treaty or of an annex to it such as the Hague Regulations, recourse may be had according to Article 31 of the Vienna Convention on the Law of Treaties to the context to be given to the terms of the treaty and also to the treaty's object and purpose. Based on this general rule of interpretation, the term "territory" as used in Article 42 of the Hague Regulations can only refer to the "territory of the hostile state" over which the army of the other state (i.e., the Occupying state) has assumed military authority.
[3] The principle of international law that applied to the situation was jus ex injuria non oritur [a right does not arise from a wrong]. Even the Council of the Arab League refused to recognize the Jordanian annexation of Judea and Samaria, and four states — Egypt, Saudi Arabia, Syria and Lebanon — voted to expel Jordan for violating the League's anti-annexation resolution of April 13, 1950.
[4] The International Committee of the Red Cross (ICRC) principally formulated the four 1949 Geneva Conventions that were approved at a Diplomatic Conference for the Establishment of International Conventions for the Protection of the Victims of War, held in Geneva from April 21 to August 12, 1949. The ICRC has a special position in the implementation of these Conventions, charged with providing relief and affording protection for members of armed forces who are wounded, sick or shipwrecked; prisoners of war; and civilian persons in time of war (see, for example, Articles 3(2), 63 and 142 of Geneva Convention IV). Under the erroneous assumption of the ICRC that Judea , Samaria Gaza Land of Israel Basle
[5] The Knesset on July 15, 2003 took an initial step in this direction when it passed, by a margin of 26 to 8, a resolution submitted by Gideon Sa'ar that read as follows: "...the Knesset affirms that the territories of Judea and Samaria are not occupied territories, either historically or from the standpoint of international law, and not according to the diplomatic accords signed by Israel...".
Howard Grief was born in
Howard Grief has written extensively on Israel's ownership of the West Bank. See, for example, "Is Israel Occupying The West Bank?"; "The origin of the Occupation Myth" ; and "Legal Rights and Title of Sovereignty of the Jewish People to the Land of Israel and Palestine under International Law."
Except for the last paragraph of the article, which is completely new, the present article -- which is also being posted on the website of the Ariel Center for Policy Research, to whom it was originally submitted -- is an excerpt from the last chapter of Grief's book "The Legal Foundation and Borders of Israel under International Law", "The Legal Foundation and Borders of Israel under International Law" offers a comprehensive and systematic legal treatment of Jewish national and political rights to all of the Land of Israel. Howard Grief, is the originator of the thesis that de juresovereignty over the entire Land of Israel and Palestine was vested in the Jewish People as a result of the San Remo Resolution adopted at the San Remo Peace Conference on April 24, 1920.
APPENDIX 1: Basic documents regarding
Title:
Caption: This resolution, consisting of the Balfour Declaration and Article 22 of the Covenant of the
Title: The Franco-British [Boundary] Convention of
Caption: The Franco-British [Boundary] Convention which delineated the boundaries between
Title: Mandate for
Caption: The Mandate for
|
APPENDIX II: The Franco-British [Boundary] Convention Of
The British and French Governments, respectively represented by the undersigned Plenipotentiaries, wishing to settle completely the problems raised by the attribution to Great Britain of the mandates for Palestine and Mesopotamia and by the attribution to France of the mandate over Syria and the Lebanon, all three conferred by the Supreme Council at San Remo, have agreed on the following provisions:-
Article 1
The boundaries between the territories under the French mandate of Syria and the Lebanon on the one hand and the British mandate of Mesopotamia and Palestine on the other are determined as follows:-
On the east, the
On the south-east and south, the aforesaid boundary of the former vilayets southwards as far as Roumelan Koeui; thence a line leaving in the territory under the French mandate the entire basin of the western Kabur and passing in a straight line towards the Euphrates, which it crosses at Abu Kemal, thence a straight line to Imtar to the south of Jebul Druse, then a line to the south of Nasib on the Hedjaz Railway, then a line to Semakh on the Lake of Tiberias, traced to the south of the railway, which descends towards the lake and parallel to the railway. Deraa and its environs will remain in the territory under the French mandate; the frontier will in principle leave the valley of the Yarmuk in the territory under the French mandate, but will be drawn as close as possible to the railway in such a manner as to allow the construction in the valley of the Yarmuk of a railway entirely situated in the territory under the British mandate. At Semakh the frontier will be fixed in such a manner as to allow each of the two High Contracting Parties to construct and establish a harbour and railway station giving free access to the
On the west, the frontier will pass from Semakh across the
From Metullah the frontier will reach the watershed of the valley of the
Article 2
A commission shall be established within three months from the signature of the present convention to trace on the spot the boundary line laid down in article 1 between the French and British mandatory territories. This commission shall be composed of four members. Two of these members shall be nominated by the British and French Governments respectively, the two others shall be nominated, with the consent of the Mandatory Power, by the local Governments concerned in the French and British mandatory territories respectively.
In case any dispute should arise in connection with the work of the commission, the question shall be referred to the Council of the
The final reports by the commission shall give the definite description of the boundary as it has been actually demarcated on the ground; the necessary maps shall be annexed thereto and signed by the commission. The reports, with their annexes, shall be made in triplicate; one copy shall be deposited in the archives of the
Article 3
The British and French Governments shall come to an agreement regarding the nomination of a commission, whose duty it will be to make a preliminary examination of any plan of irrigation formed by the Government of the French mandatory territory, the execution of which would be of a nature to diminish in any considerable degree the waters of the Tigris and Euphrates at the point where they enter the area of the British mandate in Mesopotamia.
Article 4
In virtue of the geographic and strategic position of the
Article 5
1.The French Government agrees to facilitate by a liberal arrangement the joint use of the section of the existing railway between the
2.The British Government may carry a pipe line along the existing railway track and shall have in perpetuity and at any moment the right to transport troops by the raiiway.
3.The French Government consents to the nomination of a special commission, which, after having examined the ground, may read just the above-mentioned frontier line in the valley of the Yarmuk as far as Nasib in such a manner as to render possible the construction of the British railway and pipe line connecting Palestine with the Hedjaz Railway and the valley of the Euphrates, and running entirely within the limits of the areas under the British mandate. It is agreed, however, that the existing railway in the Yarmuk valley is to remain entirely in the territory under the French mandate. The right provided by the present paragraph for the benefit of the British Government must be utilized within a maximum period of ten years.
The above-mentioned commission shall be composed of a representative of the French Government and a representative of the British Government, to whom may be added representatives of the local Governments and experts as technical advisers to the extent considered necessary by the British and French Governments.
4.In the event of the track of the British railway being compelled for technical reasons to enter in certain places the territory under French mandate, the French Government will recognize the full and complete extra-territoriality of the sections thus lying in the territory under the French mandate, and will give the British Government or its technical agents full and easy access for all railway purposes.
5.In the event of the British Government making use of the right mentioned in paragraph 3 to construct a railway in the valley of the Yarmuk, the obligations assumed by the French Government in accordance with paragraphs 1 and 2 of the present article will terminate three months after the completion of the construction of the said railway.
6.The French Government agrees to arrange that the rights provided for above for the benefit of the British Government be recognized by the local Governments in the territory under the French mandate.
Article 6
It is expressly stipulated that the facilities accorded to the British Government by the preceding articles imply the maintenance for the benefit of
Article 7
The French and British Governments will put no obstacle in their respective mandatory areas in the way of the recruitment of railway staff for any section of the Hedjaz Railway.
Every facility will be given for the passage of employees of the Hedjaz Railway over the British and French mandatory areas in order that the working of the said railway may be in no way prejudiced.
The French and British Governments agree, where necessary, and in eventual agreement with the local Governments, to conclude an arrangement whereby the stores and railway material passing from one mandatory area to another and intended for the use of the Hedjaz Railway will not for this reason be submitted to any additional customs dues and will be exempted so far as possible from customs formalities.
Article 8
Experts nominated respectively by the Administrations of Syria and Palestine shall examine in common within six months after the signature of the present convention the employment, for the purposes of irrigation and the production of hydro-electric power, of the waters of the Upper Jordan and the Yarmuk and of their tributaries, after satisfaction of the needs of the territories under the French mandate. In connection with this examination the French Government will give its representatives the most liberal instructions for the employment of the surplus of these waters for the benefit of
In the event of no agreement being reached as a result of this examination, these questions shall be referred to the French and British Governments for decision.
To the extent to which the contemplated works are to benefit Palestine, the Administration of Palestine shall defray the expenses of the construction of all canals, weirs, dams, tunnels, pipe lines and reservoirs or other works of a similar nature, or measures taken with the object of reafforestation and the management of forests.
Article 9
Subject to the provisions of Articles 15 and 16 of the mandate for Palestine, of Articles 8 and 10 of the mandate for Mesopotamia, and of Article 8 of the mandate for Syria and Lebanon, and subject also to the general right of control in relation to education and public instruction, of the local Administrations concerned, the British and French Governments agree to allow the schools which French and British nationals possess and direct at the present moment in their respective mandatory areas to continue their work freely; the teaching of French and English will be freely permitted in these schools.
The present article does not in any way imply the right of nations of either of the two parties to open new schools in the mandatory area of the other.
The present convention has been drawn up in English and French, each of the two texts having equal force.
Done at
HARDINGE OF PENSHURST
G. LEYGUES |
APPENDIX III: Jewish Legal Rights and Title of Sovereignty to the
by Howard Grief
April 2004 published on Jerusalem Summit website www.jerusalemsummit.org
The legal title of the Jewish People to the mandated territory of Palestine in all of its historic parts and dimensions was first recognized under international law on April 25, 1920 by a Decision taken at the San Remo Peace Conference by the Supreme Council of the Principal Allied Powers to entrust Palestine to Great Britain under the Mandates System for the purpose of establishing a national home for the exclusive benefit of the Jewish People, in accordance with the terms of the Balfour Declaration of November 2, 1917.
The Supreme Council of the Allies was made up of the top political leaders and officials of Great Britain, France, Italy and Japan, and it was they in their meeting in the Italian resort city who decided the future fate of all the Asiatic possessions which, as a consequence of World War I, had ceased to be under the sovereignty of the Ottoman Turkish Empire which formerly governed them.
These possessions included all the area then called the
British determination and influence in the wartime group of nations officially called the Principal Allied Powers in relation to Turkey excluded other areas under former Ottoman rule in Asia from being part of the new system of mandatory government, particularly the Hedjaz and the whole Arabian Peninsula.
This was the global settlement that was made after World War I, that conferred enormous benefits to the Arabic-speaking world. The "Arabs" received the lion's share of the territories that formerly belonged to
Other peoples who were originally included in this global settlement fared badly. Kurds and Armenians were supposed to get their own autonomous homelands or states, and the Assyro-Chaldeans, who were a Christian community centered in
When the settlement and division of land was devised at the San Remo Conference, it was clear to all concerned parties, Arab and Jew alike and to all European, American and Japanese statesmen, that Palestine, within its historic frontiers according to the biblical formula, from Dan to Beersheba, but which still needed to be marked out in a separate agreement, was exclusively reserved for the benefit of the Jewish people all over the world, of which only a fraction then actually lived in the ancient Jewish country. What this obviously meant to one and all was an independent Jewish State in all of the historic
Jewish legal rights and title to all of historic Palestine, including Transjordan and Golan, whose association with the Jewish People goes back to the earliest days of Jewish history, was indeed then formally recognized in the Franco-British Convention of December 23, 1920, even though no specific words were used to that effect but was well understood by the parties, both from the negotiations that were conducted prior to the conclusion of the Convention in consultation with Zionist leaders who pressed the British to obtain the best possible frontiers for the Jewish National Home, and from the reference to the Mandate for Palestine contained in the Convention itself. Some parts of historic
Jewish legal rights and title to the country of
1.The historical connection of the Jewish People with
2.The right enshrined in Article 22 of the Treaty of Versailles of 1919 which provided for national independence or self-determination for those peoples, inhabitants and communities living in the colonies and territories formerly under Turkish and German sovereignty. This principle of self-determination was also adopted for the benefit of the Jewish People by the Principal Allied Powers when they created the Mandates System even though the vast majority of Jews did not live in any of the territories described in Article 22 of the Treaty of Versailles that were destined for eventual independence. That was the most unique element of the Mandate for
3.The right of the Jewish People to reconstitute their State of old in accordance with the Balfour Declaration of November 2, 1917, as adopted by the Principal Allied Powers on April 25, 1920 at the San Remo Conference. The Balfour Declaration was a declaration of sympathy with Jewish Zionist aspirations as stated in the brief letter sent to Lord Lionel Walter Rothschild which contained the text of the famous Declaration. It viewed with favour "the establishment in
The "home" referred to in the Declaration was a euphemistic term for "state" already used 20 years earlier by the Jewish leaders attending the World Zionist Congress convoked by Theodor Herzl and held at Basel, Switzerland, in August 1897, so as not to offend Turkish sensibilities on the projected loss of Palestine from their recognized sovereign domains under international law. The word "national" was later appended to the word "home" by Nahum Sokolow, the long-time Zionist leader at the time he participated in the drafting of the Balfour Declaration with British officials. The addition of this word was to make it even clearer what the ultimate goal of the Zionist Organization was, on behalf of the scattered Jewish people. Strangely, what was evident by the words "national home" then became muddled by the originator of the term, Sokolow himself, who, in a display of inane and unnecessary deception, wrote in the introduction to his two-volume monumental work, History of Zionism, published in 1919, that the word "home" as used in the Basel Program of 1897, did not mean the creation of an independent "Jewish State", which was an interpretation he attributed to anti-Zionists who were opposed to the revival of the Jewish People as an independent nation in its ancestral homeland. This denial of the term's true meaning was contrary to what both Balfour and Lloyd-George themselves stated, both at the time the Balfour Declaration was approved by the War Cabinet and in the years afterwards. It was also contrary to President Wilson's own pronouncement on the subject, influenced by the great American Supreme Court Justice, Louis Dembetz Brandeis, both of whom had a major role in the approval of the Balfour Declaration. The matter became further confused by Ahad Ha'Am, the pompous pseudonym used by Asher Ginsberg, who stated erroneously in a deliberate trouble-provoking exegesis that the words "in
As a result of Sokolow's and Ginsberg's unconscionable and unforgivable misrepresentations which created heavy roadblocks on the way to Jewish independence, it thereafter became easy for succeeding British Governments to exploit their false interpretation of the Balfour Declaration and to change the policy embedded in the Declaration to the great detriment of the Jewish National Home.
Despite British backtracking, the Balfour Declaration did become in any case an act of international law of supreme importance to the cause of Zionism, when it was officially adopted by the Principal Allied Powers at the San Remo Conference. It is without doubt the linch-pin or essential foundation of all Jewish legal rights to
The foregoing three components of the Jewish legal title to Palestine were then rolled into one comprehensive international instrument, the Mandate for Palestine, which thereafter became the primary cited source for Jewish legal rights to the re-constituted Jewish National Home that was called Palestine in English, a name originally chosen by the Zionist leaders in the Basel Program of 1897, and translated into Hebrew as the Land of Israel.
These rights were included specifically in the first three recitals of the Preamble of the Mandate Agreement, each one of the recitals being of great importance by itself. Recital One refers to Article 22 of the Covenant of the
The instrument containing the Mandate for
This constituted official recognition under international law of Jewish legal rights and title to all of
In this regard, it is worthwhile to assess the claim that Jewish legal rights and title to the whole country including
Second, the doctrine of estoppel also applies with even greater force to the
Finally, the doctrine of estoppel applies with equal validity to all Arab states whose own creation under international law derived from the very same global settlement made by the Principal Allied Powers at
One additional note related to this matter is that it is unnecessary to base the continuation of Jewish legal rights and title to all of former
Unfortunately what was clearly established in regard to Jewish legal rights and title to all of
After taking complete control of the Turkish Government, Ataturk refused to accede to the loss of any Turkish territories in
The various provisions of the Treaty of Sevres which had clearly set out the new legal structure for Palestine and that of Syria and Mesopotamia in an unambiguous way were not repeated in the Treaty of Lausanne, but simply omitted altogether, replaced by a vague clause (Article 16), which referred to the future of territories "being settled or to be settled by the parties concerned" among which was Palestine, over which Turkey again renounced all rights and title, as it had done previously when the Sultan's representatives signed the Treaty of Sevres.
The change in regime in
As a result, many renowned jurists have wrongly maintained that Turkey only lost its sovereignty over Palestine and the rest of the Fertile Crescent when it agreed to the Treaty of Lausanne of 1923, though the Treaty of Versailles of 1919, also recognized by Kemal's Turkey, expressly rebuts that incorrect contention, as does the first recital in the Preamble of the Mandate for Palestine as well as Turkey's earlier acceptance of Wilson's Fourteen Points, delivered in an address to the U.S. Congress on Jan. 8, 1918, one point of which dealt specifically with Turkey limiting its control to its own peoples. In any event, the provisions of the Treaty of Sevres still have great evidentiary value despite its non-ratification, to show what the Principal Allied Powers actually intended to do or had in mind when they adopted the Balfour Declaration as the only basis of the Mandate for
The changes produced by Ataturk's rise to power were also accompanied by a sudden American intervention in the involved process then underway to confirm all the new mandates that were allotted to Mandatories under the Mandates System. The
The American maneuver produced very deleterious effects for Jewish legal rights and title to all of
The damage done soon became evident enough. Thanks to the unwelcome American intrusion, the British deviously sneaked in a new provision into the Mandate, that of Article 25, using as a lame excuse Abdullah's threatened advance into Syria to protest his brother's eviction by the French, which had no chance of succeeding but amounted to mere bluster and feigned action. This additional provision to the Mandate for
The British engaged in other shady maneuvers and artifices whose combined effect was to distort the true legal meaning of the Mandate for
The author of this article served as a legal adviser to Professor Yuval Ne'eman in international law matters affecting the status of the
However, these methods or devices were so skillfully contrived and artfully executed, they fooled most people at the time. And because they were also based on Zionist antecedents provided by the likes of Nahum Sokolow and Asher Ginsberg and supported to a certain extent by the statements of Chaim Weizmann himself, the British were able to get away with their brazen undermining of the Jewish National Home until it became obvious what they had done. By that time, it was already too late to do anything to reform the situation and execute the Mandate according to its original true meaning. The British methods or devices included the following acts of sabotage of the Jewish National Home:
A. Changing the meaning of the words "the establishment in Palestine of a national home for the Jewish People" to connote not the establishment of an independent Jewish State, but rather a cultural or spiritual center, as earlier advocated by both Ahad Ha'Am and Nahum Sokolow.
B. Misrepresenting the Mandatory's solemn obligations under the Mandate to include not only obligations in favour of the Jewish People, but also undertakings of equal weight designed to satisfy Arab aspirations for self-government in
C. Introducing the illegal principle of partition into the Mandate Agreement, which was expressly forbidden by Article 5 of the text of the Mandate. Here the British showed great ingenuity, using all their brilliant grammatical skills to find a mother lode of new meaning from the simple phrase "in
D. Administering Palestine in such a way as to bring about the establishment of an independent Arab Government for Palestine, which was, of course, the complete opposite of what was required to be done under the Mandate's provisions. This British policy of converting a Jewish Palestine into an Arab Palestine reached its outrageous apex in the infamous White Paper of
Those British figures who were chiefly responsible for tearing asunder the definitive peace settlement reached at San Remo and Sevres and concomitantly with obfuscating Jewish legal rights and title to all of Mandated Palestine are among the most revered personages in British and Zionist history, specifically George Nathaniel Curzon, Herbert Samuel and Winston Churchill.
Curzon was a leading member in Prime Minister Lloyd George's War Cabinet, who became Foreign Secretary upon the retirement of Arthur James Balfour. He was placed in charge of
Despite Curzon's best attempts to prevent a Jewish state from being seen as the real and most important objective of the Mandate for
The nefarious work begun by Curzon was ironically taken over and completed by the erstwhile Zionist, Herbert Samuel, who just before his appointment as British High Commissioner in
It was this White Paper of
The British circumvention of the Mandate for
The question now arises in light of what occurred in the past just what
Next,
It is safe to assume that the foregoing advice will never be acted upon so long as there is an anti-nationalist Labour party and other "peace parties" who advocate a spurious peace, instead of believing in and fighting for the integrity and non-partition of the
Only a future Government of Israel infused with the proper Jewish nationalist and religious spirit, knowledge and pride can change what is today a murky and forlorn situation.
As for what can be done actually now,
[1] immediately scrap the "Oslo Peace Process" which, incredibly, recognizes the national and political rights of a motley Gentile people to substantial parts of the Land of Israel;
[2] evict the so-called and falsely-denominated "Palestinian Authority" and its entire leadership from the Jewish country, and [3] annex or incorporate all of Judea, Samaria and Gaza into the Jewish State; [4] All Arabs who do not profess loyalty to the Jewish State must leave the country and be re-settled in other Moslem countries, just as happened between the Greeks and the Turks after World War I; [5] No Arab parties professing national and collective rights for Arabs in the Jewish country should be allowed to sit in the Knesset.
The Moslems who live in the
The future steps that need to be taken to restore all of the Jewish country to its sovereign owner, the Jewish People, are at this point clear enough.
It is fervently hoped that the day is not far off, especially under the new Sharon Government, that Israel will finally abandon what has been the most dangerous and suicidal course for a Jewish government to have ever followed: a policy which illegally transfers integral parts of the Jewish homeland to an enemy bent on destroying it and which has allowed it to create foreign rule and the rudiments of a state and army in the very midst of the Jewish country, led by a gang of bloody terrorists and murderers as seen only too well today.
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Appendix IV:
It was agreed — (a) To accept the terms of the Mandates Article as given below with reference to Palestine, on the understanding that there was inserted in theproces-verbal an undertaking by the Mandatory Power that this would not involve the surrender of the rights hitherto enjoyed by the non-Jewish communities in Palestine; this undertaking not to refer to the question of the religious protectorate of France, which had been settled earlier in the previous afternoon by the undertaking given by the French Government that they recognized this protectorate as being at an end. (b) that the terms of the Mandates Article should be as follows:
The High Contracting Parties agree that Syria and Mesopotamia shall, in accordance with the fourth paragraph of Article 22, Part I (Covenant of the League of Nations), be provisionally recognized as independent States, subject to the rendering of administrative advice and assistance by a mandatory until such time as they are able to stand alone. The boundaries of the said States will be determined, and the selection of the Mandatories made, by the Principal Allied Powers.
The High Contracting Parties agree to entrust, by application of the provisions of Article 22, the administration of
La Puissance mandataire s'engage a nommer dans le plus bref delai une Commission speciale pour etudier toute question et toute reclamation concernant les differentes communautes religieuses et en etablir le reglement. Il sera tenu compte dans la composition de cette Commission des interets religieux en jeu. Le President de la Commission sera nomme par le Conseil de la Societe des Nations.
The terms of the mandates in respect of the above territories will be formulated by the Principal Allied Powers and submitted to the Council of the
(c) Les mandataires choisis par les principales Puissances allies sont: la France pour la Syrie, et la Grand Bretagne pour la Mesopotamie, et la Palestine.
In reference to the above decision the Supreme Council took note of the following reservation of the Italian Delegation:
La Delegation Italienne en consideration des grands interets economiques que l'Italie en tant que puissance exclusivement mediterraneenne possede en Asie Mineure, reserve son approbation a la presente resolution, jusqu'au reglement des interets italiens en Turquie d'Asia.
Footnote:
1. The actual date was November 2, 1917.
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Appendix V: SECURITY COUNCIL RESOLUTION 242: A VIOLATION OF LAW AND A PATHWAY TO DISASTER
Howard Grief
November 2007
Resolution 242, adopted by the United Nations Security Council five and a half months after the outbreak of the Six-Day War of June 1967, stated the principles for the establishment of a just and lasting peace in the
As a consequence of Resolution 242 being only a recommendation to the states involved in the Six-Day War of June 1967 concerning the best way to achieve a just and lasting peace in the Middle East, it cannot be classified as "international law" nor can it produce "legal rights" in favour of any parties to whom it is meant to apply. Neither, for that matter, does the Resolution produce "legal obligations" that are imposed upon all the states concerned, requiring them to act in conformity with the resolution unless those states agree mutually to do so. It is also important to note that Resolution 242 is applicable to states only, and not to non-state entities such as the "Palestine Liberation" Organization.
Two principles, supposedly in fulfillment of the U.N. Charter, are enunciated in the Resolution to attain "a just and lasting peace in the
The American position on the extent of the Israeli withdrawal was first enunciated by President Johnson in a speech delivered on
There are some who have urged, as a single, simple solution, an immediate return to the situation as it was on June 4. As our distinguished and able Ambassador, Mr. Arthur Goldberg, has already stated, this is not a prescription for peace, but for renewed hostilities.
Certainly troops must be withdrawn, but there must also be recognized rights of national life, progress in solving the refugee problem, freedom of innocent maritime passage, limitation of the arms race, and respect for political independence and territorial integrity.
(Bernard Reich [ed.], Arab-Israeli Conflict and Conciliation: A Documentary History, Praeger Publishers, Westport, Connecticut (1995), Document Entitled: Johnson's Five Principles of Peace, p. 97 at p. 99.)
President Johnson thus linked any Israeli withdrawal of troops with the attainment of all five principles that he set out in his speech. He emphasized strongly that the withdrawal of Israeli forces was not to be immediate, but would take place only when the other conditions he listed were also fulfilled.
The American position on
If any further evidence is needed to prove that Resolution 242 did not oblige Israel to withdraw completely to the June 4, 1967 lines, it is provided by three of the formulators of this resolution, Arthur J. Goldberg, U.S. Ambassador to the U.N., George Brown, the British Foreign Secretary in 1967 at the time the resolution was adopted, and Lord Caradon, the sponsor of the resolution.
In the words of Ambassador Goldberg in a speech he delivered on
Resolution 242(1967) does not explicitly require that
Resolution 242 (1967) simply endorses the principle of "withdrawal of
The notable omissions — which were not accidental — in regard to withdrawal are the words "the" or "all" and "the
Substantiating Ambassador Goldberg's interpretation of Resolution 242, George Brown stated in January 1970:
I formulated the Security Council resolution. Before we submitted it to the Council we showed it to the Arab leaders. The proposal said
More corroboration is provided by Lord Caradon:
Withdrawal shall take place to secure and recognized boundaries, and these words were very carefully chosen: they have to be secure, and they have to be recognized. They will not be secure unless they are recognized. And that is why one has to work for agreement. This is essential. If we had attempted to draw a map, we would have been wrong. We did not. And I would defend absolutely what we did. It was not for us to lay down exactly where the border should be. I know the 1967 border very well. It is not a satisfactory border, it is where troops had to stop in 1947, just where they happened to be that night. That is not a permanent boundary (Tekoah, Yosef, op. cit., pp. 263-64).
Later, in an interview with a Lebanese newspaper, the Beirut Daily Star, on
It would have been wrong to demand that
The second principle in Resolution 242 taken directly from the U.N. Charter to achieve a just and lasting peace in the
The Arab states of Egypt and Jordan both initially accepted Resolution 242 in the hope that Israel would then withdraw from the territories they had just lost to Israel in the Six-Day War, which either they had illegally acquired in the 1948 War or which never legally belonged to them under international law. In regard to Jordan, the pro-Arab, anti-Israeli journalist and author, Donald Neff, claims in a book he wrote that a secret agreement existed between the U.S. and Jordan under which the U.S. gave what he called "ironclad assurances" to King Hussein of Jordan, "that the U.S. was prepared to support the return of a substantial part of the West Bank to Jordan with boundary adjustments, and would use its influence to obtain compensation to Jordan for any territory it was required to give up" (see his book, Warriors for Jerusalem: The Six Days that changed the Middle East, Linden Press/Simon & Shuster, New York (1986), pp. 341, 345). The assurances given to Hussein, writes Neff, were made by U.S. Secretary of State Dean Rusk, U.N. Ambassador Arthur J. Goldberg and President Johnson himself in a meeting with Hussein at the White House on
Goldberg for his part not only denied the accuracy of the assertion that Resolution 242 presupposed only minor border changes, but emphatically denied that any assurance or commitment had ever been given to King Hussein by the American Government that it would ensure
In 1967, I was the permanent representative of the
In the course of these meetings, I made it clear to King Hussein that I was speaking at the express authorization of President Lyndon Johnson. It was, I stated, the U.S. view that in light of the fact that Jordan had entered the 1967 war after Israel had urged it not to do so, and had been defeated, the United States could not guarantee that the West Bank would be returned to Jordan. The most we could do, I made clear, would be to use our influence to help
I did say that we did not visualize a
Goldberg's robust rebuttal of King Hussein's allegation of a secret commitment made to him by the
The other principal enemy combatant,
Taken together, the two principles of Resolution 242, if implemented by the parties to the conflict, would require Israel's withdrawal, not, as already noted, from "all" the territories it allegedly "occupied" in the Six-Day War — the term "occupied" is fraught with legal meaning under the Hague Regulations of 1907 and the Fourth Geneva Convention of 1949 — but only a withdrawal to "secure and recognized boundaries".
The Arab and Russian interpretation of this resolution, i.e., that
Aside from any mis-interpretation of Resolution 242 by
In addition to the resolution's incompatibility with international law that bestowed the legal right to all of Palestine on the Jewish People, the resolution also violated Israel's own constitutional law in the form of the Area of Jurisdiction and Powers Ordinance and the Proclamation issued on September 2, 1948 by Defense Minister David Ben-Gurion, formally known as "Israel Defense Forces Government in the Land of Israel" (or simply "the Land of Israel Proclamation"). Israeli constitutional law as it existed when Resolution 242 was adopted on
From another aspect, it is sterile to argue that Israel is not obliged to withdraw from liberated Jewish territories (Judea, Samaria, Gaza, Golan and Sinai) merely because of the fact that Resolution 242 uses indefinite language rather than the definite article '‘the" before the word "territories" in the official English version in which the resolution was drawn up, but not incidentally in the text of the U.N.'s four other official languages (French, Spanish, Russian and Chinese). While it is undoubtedly true that Resolution 242, based on the indefinite language employed therein, does not require a complete Israeli withdrawal, Israel's rights to lands constituting its ancient and modern patrimony should not be founded on this grammatical argument, as it so often is by those who mistakenly believe that this resolution is a beneficial document in support of Israel's position and rights.
Resolution 242 adds two more requirements for achieving a just and lasting peace in the
Second, Resolution 242 "affirms further the necessity for achieving a just settlement of the refugee problem". The "refugee problem" had more than one meaning. It was naturally a reference to the existing Arab refugee problem that has been immune to resolution and has grown exponentially over the years by illogically adding to the original number of refugees in 1948 and 1967 most of whom have already passed away, all of their descendants including, amazingly enough, even grandchildren and great-grandchildren who never lived in or fled from Mandated Palestine, and providing them with free rations, medical care, educational facilities and other services. Most of these so-called refugees live in
"A just solution of the refugee problem" also carried with it a reference to the problem of Jewish refugees from Arab countries who were driven out or escaped from Moslem persecution both before and after the rebirth of the State of Israel. In fact, the number of Jewish refugees exceeded the number of Arab refugees who fled
No mention is made in Resolution 242 of the so-called "Palestinians" and their alleged right of self-determination. That would only come later, on December 10, 1969, when the General Assembly adopted Resolution No. 2535 (XXIV) which affirmed "the inalienable rights of the people of Palestine", followed in later years by a slew of other resolutions of the same type that converted the "refugees" into a new "nation" unknown in history and no different from other Arabs living in Israel and the Arab states.
To carry out Resolution 242, a special Representative was designated by the Secretary-General "to proceed to the
Resolution 242 was further re-affirmed in Security Council Resolution 338 adopted on
In the years that followed the adoption of Resolution 242, the American position on Israeli withdrawal moved much closer to the Arab position as originally understood by King Hussein of
The United States considers that the part of Jerusalem that came under the control of Israel in the June war, like other areas occupied by Israel, is occupied territory and hence subject to the provisions of international law governing the rights and obligations of an occupying power. Among the provisions of international law which bind
As seen by the foregoing statement of Ambassador Yost, the U.S. Administration under President Richard Nixon now formally considered eastern
Resolution 242 in no way refers to
In a number of speeches at the U.N. in 1967, I repeatedly stated that the armistice lines fixed after 1948 were intended to be temporary. This, of course, was particularly true of
My speech of
This is a far cry from Ambassador Yost's statement that we conceived
[* ] Hodding Carter, the assistant secretary of state for public affairs in the Jimmy Carter Administration.
The Yost statement to the U.N. Security Council was followed by the unanimous adoption of Resolution 267 on
The Security Council resolution neither endorses nor precludes [the] armistice lines as the definitive political boundaries. However, it calls for withdrawal from occupied territories, the non-acquisition of territory by war, and the establishment of secure and recognized boundaries. We believe that while recognized political boundaries must be established and agreed upon by the parties, any changes in the pre-existing [armistice] lines [of 1949] should not reflect the weight of conquest and should be confined to insubstantial alterations required for mutual security. We do not support expansionism. We believe troops must be withdrawn as the resolution provides. We support
By saying that Israel's borders should not reflect the weight of conquest and that any changes in the June 4, 1967 lines should be confined to insubstantial alterations and by opposing Israeli "expansionism", Rogers was adopting an unmistakable pro-Arab position that Israel should give up almost all its territorial gains in the Six-Day War and go back to the pre-existing lines of June 4, 1967 that clearly were not the defensible borders required under Resolution 242. President Nixon himself stated on
One of the strangest reactions to Resolution 242 came from Menahem Begin. He was a minister of the National Unity Government of Israel in December 1967 when it was decided to accept the resolution, but he was apparently not privy to this decision. After he learned of it, he expressed his disapproval, but did not resign from the Government. However, when the Government in which he served accepted the Second Rogers Plan on July 31, 1970, to renew a cease-fire and "standstill" in the military situation between Egypt (then officially called the United Arab Republic) and Israel and also to pursue an agreement for the establishment of a just and lasting peace between Jordan and Israel as well as between Egypt and Israel, Begin and the Gahal bloc of the Herut and Liberal parties quit the Government. He did so because the new Rogers Plan was explicitly based on Resolution 242 which required Israeli withdrawal "from territories occupied" in the 1967 conflict that under the American interpretation included Jerusalem and the Jordanian "West Bank", and also all other fronts. For Begin that meant a new partition of the
Begin's acceptance of Resolution 242 was a stark repudiation of all that he previously professed. His volte-face contrasted with the steadfast position taken by his successor, Prime Minister Yitzhak Shamir, who stoutly believed that
Finally, in a radical shift from President Johnson's position, President George W. Bush, acting in concert with the United Nations, Russia and the European Union, gave American support to the Road Map Peace Plan advocating "an independent, democratic and viable ‘Palestinian' state living side by side in peace and security with Israel and its other neighbors" in Judea, Samaria and Gaza. This plan, which grew out of Resolution 242 and cited it in the preamble as one of its foundations, envisages an end of
Over the years, Resolution 242 became a cornerstone document in international diplomacy seeking to bring about a just and lasting peace between
UNITED NATIONS SECURITY COUNCIL RESOLUTION NO. 242 OF
STATING THE PRINCIPLES OF A JUST AND LASTING PEACE IN THE MIDDLE EAST
The Security Council,
Expressing its continuing concern with the grave situation in the Middle East, Emphasizing the inadmissibility of the acquisition of territory by war and the need to work for a just and lasting peace in which every State in the area can live in security,
Emphasizing further that all Member States in their acceptance of the Charter of the United Nations have undertaken a commitment to act in accordance with Article 2 of the Charter,
1. Affirms that the fulfillment of Charter principles requires the establishment of a just and lasting peace in the
(a) Withdrawal of Israeli armed forces from territories occupied in the recent conflict;
(b) Termination of all claims or states of belligerency and respect for and acknowledgement of the sovereignty, territorial integrity and political independence of every State in the area and their right to live in peace within secure and recognized boundaries free from threats or acts of force;
2. Affirms further the necessity
(1) For guaranteeing freedom of navigation through international waterways in the area;
(2) For achieving a just settlement of the refugee problem;
(3) For guaranteeing the territorial inviolability and political independence of every State in the area, through measures including the establishment of demilitarized zones;
3. Requests the Secretary-General to designate a Special Representative to proceed to the Middle East to establish and maintain contacts with the States concerned in order to promote agreement and assist efforts to achieve a peaceful and accepted settlement in accordance with the provisions and principles in this resolution;
4. Requests the Secretary-General to report to the Security Council on the progress of the efforts of the Special Representative as soon as possible.
Adopted unanimously at the 1382nd meeting.
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APPLYING CONSTITUTIONAL LAW TO THE 1967 LIBERATION OF JUDEA , SAMARIA GAZA ISRAEL
by Howard Grief
The five letters presented in the enclosed booklet tell a story of utmost national significance, about which few have any true knowledge. It is a historical fact that ever since
This mis-application of law, a step taken by the Eshkol Government on the basis of erroneous legal advice proffered by the then Military Advocate-General and future President of the Supreme Court, Mr. Justice Meir Shamgar, who was responsible for setting up the military administration for the reconquered areas of the Land of Israel, is the subject-matter of the five letters published here. It resulted in the pernicious Occupation Myth and provided our enemies with an enormous propaganda victory in the eyes of the world, for the term "occupation" implied that Israel had taken over by war the land of another people to which it had no right under international law, an absolutely false implication. This widespread myth then received the stamp of approval from the Supreme Court of Israel, especially from Mr. Justice Moshe Landau in the Eilon Moreh case and from recently retired President Aharon Barak in cases dealing with Israel's security fence and the implementation of the Sharon Disengagement Plan.
The author hopes that the publication of his letters to Mr. Justice Meir Shamgar, the originator of the international law thesis that gave direct rise to the Occupation Myth, despite Shamgar's intentions, will enlighten the public about the violation of law committed 40 years ago, the effects of which are felt to this very day. Recognition of this 1967 error is a vital first step in an attempt to undo the colossal legal damage done to the rights of the People and State of
Howard Grief
May 2007 |
PRESENTING THE TERMS OF THE ARGUMENT
11 Heshvan 5766 --
The Honourable Mr. Justice Meir Shamgar
Rehov Shahar 12
Dear Mr. Justice Shamgar,
Please find enclosed a copy of a letter dated November 2, 2005 I have sent to Mr. Eliezer Dembitz, in which I amplify the point why you were, in my opinion, in breach of the existing constitutional law when you conceived the plan in the early 1960s to apply international law, instead of Israeli law, to re-conquered areas of the Land of Israel and the Jewish National Home that were placed under military government.
Any reply you may wish to make would be most welcome and instructive.
Yours truly,
Howard Grief |
30 Tishri, 5766 --
Mr. Eliezer Dembitz, Attorney Jerusalem
Dear Eliezer,
Concerning our two conversations on October 31st and November 1st, 2005, I firmly adhere to my view that on June 7, 1967, when Brigadier-General Herzog issued Proclamations Numbers 1 and 2 (Proclamation on the Assumption of Power by the IDF in the Region of the West Bank; Proclamation on Law and Administration), there was a clear violation of the existing constitutional law, as of that date. Section 11B of the Law and Administration Ordinance was not enacted until three weeks later, on June 27, 1967 .
The existing relevant constitutional law that was in force on June 7, 1967, consisted of the Area of Jurisdiction and Powers Ordinance of September 16, 1948, made retroactive to May 15, 1948, and the two Proclamations issued thereunder by the Ben-Gurion Government, namely, the Israel Defense Forces Government in the Land of Israel (hereafter the Land of Israel Proclamation) of September 2, 1948, made retroactive to May 15, 1948, as well as the Israel Defense Forces Government in Jerusalem of August 2, 1948 (which I call the Jerusalem Proclamation), made retroactive to May 15, 1948.
When Israel Judea and Samaria June 7, 1967 , and Gaza June 6, 1967 , the 1948 Ordinance and the two Proclamations associated with it required the application of Israeli law, not international law. The application of Israeli law was required even though the regions were thenceforth governed by a military government, exactly as happened in 1948. Thus, when Advocate-General Meir Shamgar in the early 1960s decided long before the outbreak of the Six-Day War to apply international law concerning what he called "enemy territory" (a strange non-Jewish and non-Zionist reference to integral parts of the Land of Israel) if and when Israel acquired such territory, he was in breach of the existing constitutional law.
Two questions arise concerning Shamgar's decision to apply international law instead of Israeli law in the early 1960s, at a time when David Ben-Gurion was still Prime Minister:
1. Who gave Shamgar the right to violate the existing constitutional law on the re-acquisition of areas of the Land of Israel
2. Which government person or persons could possibly have had the authority to back Shamgar in making this decision to violate the existing constitutional law?
In the period from 1961 until June 1963, i.e., the early sixties, when Shamgar conceived his illegal plan, there was no Eshkol Government, no need to worry about demography, no pressure on Israel to apply Jordanian law to Judea and Samaria, which under Jordanian law was called the West Bank, a name subsequently changed by the Menahem Begin Government to Judea and Samaria. The only obligation then incumbent upon Shamgar was to obey the existing constitutional law.
However, Shamgar acted otherwise, contrary to the vaunted principle of the Rule of Law. He admitted in the book he edited, entitled "Military Government in the Territories Administered by Israel 1967-1980, The Legal Aspects" and published in 1982, that he wrote a comprehensive vade mecum, the Manual for the Military Advocate in Military Government, in the early sixties, when he was Military Advocate-General (1961-1968) in which he detailed the laws of war which he decided should be followed in the next war that he surmised would break out with the surrounding Arab states. His plan was then implemented several years later during and after the Six-Day War. For confirmation of this fact, I refer you to Shamgar's footnotes, numbers 25, 27 and 28 of his article in the aforementioned book, which he entitled "Legal Concepts and Problems of the Israeli Military Government -- The Initial Stage", pages 13-60. These footnotes are found on pages 25 and 27 of his article and are enclosed herewith.
As a direct result of Shamgar's conception adopted by the Eshkol Government in June 1967, every person in the world today outside Israel and indeed a very substantial number of Israel's own population call Judea, Samaria and, until very recently, Gaza "occupied territories", when they are in truth integral parts of the Land of Israel and the Jewish National Home under both Israeli constitutional law and international law, as I have made crystal clear in several past articles I have written on the subject and in my forthcoming book, The Legal Foundation and Borders of Israel under International Law. Shamgar's conception, which would never have seen the light of day had he abided by the prevailing constitutional law dating back to Ben-Gurion's day, as was expected of him, has backfired in the most hideous way: Israel is today seen as a violator of so-called international law and as an occupying power that has taken over (stolen!) another nation's patrimony, the so-called "Palestinians", a term that was formerly reserved for the Jews of the Yishuv (1920-1948) living in Mandatory Palestine, and not for a fake nation that has no right to this designation. The entire judicial travesty that Shamgar created has now been given the imprimatur of truth by none other than Justice Aharon Barak, President of the Supreme Court, in his recent decisions on Israel Judea , Samaria Gaza
As to Deputy-President Justice Moshe Landau's decision in the 1979 case of Dwaikat v Government of Israel (the Elon Moreh case), Landau misstated the legal norm that was then applicable, in June 1967. In fact, he mixed up two separate legal norms, one dealing with the imposition of Military Government over re-acquired areas of the Land of Israel Land of Israel Israel
You have received two recent articles I wrote on the subject discussed here, one dealing with the "Origin of the Occupation Myth" (published in Hebrew in the September 2005 issue of Nativ) and the other entitled "David Ben-Gurion's Forgotten 1948 Land of Israel Proclamation for the Annexation of Judea and Samaria" (scheduled for future publication). To refresh your memory and recapitulate what should have been legally done on June 7, 1967, after the liberation of Judea and Samaria from enemy occupation, instead of what was in fact illegally done by the Eshkol Government, acting undoubtedly on the proffered advice of Meir Shamgar, Zvi Terlo and others, I summarize the matter as follows:
1. In the first proclamation prepared by the Military Advocate's Unit for Judea and Samaria formally issued by Haim Herzog, the Commander of the Israel Defense Forces in this region, dated June 7, 1967, it was announced to the inhabitants living there that the Israel Defense Forces have "entered the region and assumed control", meaning that they have set up a military government there. The establishment of military government was in accordance with the 1948 Land of Israel Proclamation
2. In the second proclamation issued by Herzog, entitled "Proclamation on Law and Administration", the region over which military government was established was defined in the proclamation as the West Bank , a reference to what the Hashemite Kingdom of Jordan called Judea and Samaria West Bank , Herzog was acting unknowingly in accordance with the requirement of the Area of Jurisdiction and Powers Ordinance that said that the IDF held area must be defined by proclamation before the Ordinance could be implemented. In contrast to the 1967 Proclamation, the 1948 Land of Israel Proclamation Land of Israel West Bank ", which in any event was already a well-defined and well-known area that needed no particular delineation on a map to identify it. In both cases, defining this area was not discretionary, but obligatory, otherwise no one would have known that the IDF was in complete control of the area establishing a military government that replaced the previous government under Jordanian rule. Without such a proclamation, chaos and confusion, both at home and abroad, would have prevailed.
It is true that international law does not absolutely require the issuance of a proclamation, as soon as the territory of a foreign state is occupied by hostile forces, though it is customary for this to be done. However, the situation is entirely different under Israeli constitutional law for areas of the Land of Israel Land of Israel Land of Israel
3. Once the foregoing proclamations establishing military government in the West Bank region had been issued by Herzog on June 7, 1967, both the Area of Jurisdiction and Powers Ordinance and the Land of Israel Proclamation required the application of the law of Israel to the IDF-held region, which meant its incorporation into the State of Israel. Instead, the Proclamation on Law and Administration approved by the Eshkol Government and issued under Herzog's Command as Proclamation No. 2 applied the local law of Jordan West Bank , in accordance with Article 43 of the Hague Land of Israel Israel
It is past time to denounce and renounce what Shamgar and Landau and now Barak have done to the legal infrastructure that was created in 1948 by the Ben-Gurion Government regarding the absorption of integral areas of the Land of Israel Israel Judea , Samaria Gaza Land of Israel
Sincerely,
Howard
Howard
Copies of this letter will be sent to:
1.Professor Ya'akov Meron
2.Justice (Ret.) Meir Shamgar
3.Justice (Ret.) Moshe Landau
4.Justice Aharon Barak
5.JusticeEdmond
6.Military Judge (Ret.) Baruch Koroth
7.Professor Yuval Ne'eman
2.Justice (Ret.) Meir Shamgar
3.Justice (Ret.) Moshe Landau
4.Justice Aharon Barak
5.Justice
6.Military Judge (Ret.) Baruch Koroth
7.Professor Yuval Ne'eman
Howard Grief
Attorney and Notary
13/2 David Goitein St.,
Pisgat Ze'ev Mizrah, Jerusalem 97782 Israel
Tel. (Fax) : 972-2-656-0085
Jerusalem
11 Heshvan, 5767 -- November 2, 2006
Attorney and Notary
13/2 David Goitein St.,
Pisgat Ze'ev Mizrah, Jerusalem 97782 Israel
Tel. (Fax) : 972-2-656-0085
Jerusalem
11 Heshvan, 5767 -- November 2, 2006
Mr. Justice Meir Shamgar,
Shahar 12
96263Jerusalem
Shahar 12
96263
Dear Mr. Justice Shamgar,
I enclose herewith for your attention and perusal the letter and attached documents I have sent to the Jerusalem Post columnist, Mrs. Sarah Honig, concerning the proposed building of a Jewish cemetery on state land on the Mount of Olives, situated in the region of Judea and Samaria, the realization of which was prevented by then-State Attorney Dorit Beinisch, based on an unfounded legal opinion submitted by Attorney Meni Mazuz, prior to his being appointed Attorney-General.
This matter relates directly to your original plan in the early 1960's, long before the Six-Day War erupted, to treat any area beyond the armistice borders of the State as occupied territory governed by the laws of warfare. The Eshkol Government of National Unity accepted your plan in 1967, when Judea and Samaria were restored to the Jewish People during the Six-Day War, and invoked the Hague Rules in regard to this region. It was your advice to the Government in 1967, when you were Military Advocate-General, which created the world-wide belief that Israel was occupying the land of another country, when in truth this land (i.e., Judea and Samaria) was the sovereign patrimony of the Jewish People under both Israeli constitutional law and international law, that devolved upon the State of Israel upon its establishment. What you did has haunted Israel Land of Israel
When you launched your plan in the early 1960's, were you not aware that Israel's first prime minister, David Ben Gurion, aided by Pinchas Rosen, had set up a constitutional structure for reclaiming all parts of the Land of Israel that had earlier been transferred or otherwise lost to neighboring Arab states? For that purpose Ben-Gurion issued two separate proclamations in 1948, one pertaining to Jerusalem Land of Israel Land of Israel
1. shilton tsva-hagana le-yisrael biyrushalayim, minshar mispar 1, nittan ha-yom, kaf-vav be-tammuz 5708 -- Israel Defense Forces Government in Jerusalem
2. shilton tsva-hagana le-yisrael be-eretz-yisrael, nittan ha-yom, kaf-het be-av 5708 -- Israel Defense Forces Government in the Land of Israel
This is how places such as Nahariya, Nazareth Beersheba Ashdod Ashkelon , etc. became part and parcel of the State of Israel in 1948, even though they lay outside the boundaries of the Jewish State recommended under the United Nations Partition Plan. No special proclamation was needed for these places, for they all came under the scope and purview of the open-ended Land of Israel Proclamation Judea and Samaria Gaza Land of Israel Proclamation
The day is late to undo the damage you chiefly are responsible for, but we must try to save what is left in our possession of patrimonial Jewish lands recaptured in 1967. You would be able to help to save what can still be saved if you were to issue a public statement restating your position on the legal status of Judea , Samaria Gaza Land of Israel Proclamation
A restatement by you, as I recommend, would do much to change public perceptions, particularly in Israel Judea and Samaria
Yours truly,
Howard Grief, Attorney
Howard Grief, Attorney
1 Kislev, 5767 --
Mr. Meir Shamgar,
President (Retired) of the Supreme Court,
Rehov Shahar 12
96263Jerusalem
President (Retired) of the Supreme Court,
Rehov Shahar 12
96263
Dear Mr. Justice Shamgar,
I thank you for acknowledging and replying in the briefest terms to my letter of November 2, 2006 .
I do not find it instructive when you state that I wrote you:
(1)without a total knowledge of the facts;
(2)without bothering to check the information beforehand.
(2)without bothering to check the information beforehand.
It would have been more enlightening for me had you informed me what the true facts were in regard to the legal status of Judea and Samaria and the rest of the territories restored to the Jewish People in June 1967.
I read your article entitled "Legal Concepts and Problems of the Israeli Military Government -- The Initial Stage" in the book edited by you called Military Government in the Territories Administered by Israel, 1967-1980, the Legal Aspects, Volume 1, published in a reprint edition, 1988, by the Hebrew University of Jerusalem -- Faculty of Law and the Harry Sacher Institute for Legislative Research and Comparative Law.
In your article, you confirm the fact that everything was planned in advance as to what must be done when the IDF entered Judea and Samaria West Bank , the name of which was subsequently changed to Judea and Samaria Judea and Samaria Land of Israel
The question to be answered is: why did you give special courses teaching the laws of war when Ben-Gurion had promulgated a law and a proclamation in 1948 to apply the law of the State whenever areas of the Land of Israel November 2, 2006 , were you not aware of this law and proclamation, which were still in force when you were giving your courses? You never answered this question and it still requires an answer.
Do you think that in applying the norms and principles of international law, the Israeli Military Government set up upon your advice did the right thing? Ben-Gurion, too, set up a military government in 1948 for areas of the Land of Israel conquered beyond the UN Partition lines of November 29, 1947, but he never applied the norms and principles of international law that were applied in 1967.
I have studied the facts as they have been revealed by you in your article. I do not know what other facts you are referring to when you say I lack total knowledge of the situation in trying to understand what happened in 1967. If you would kindly enlighten me about those facts, I would be very grateful. Of course, if you truly believed in 1967 that the region of Judea and Samaria
If you held the opinion in 1967 that the supposed expectation of Arab demography overwhelming the Jewish population of Israel and the idea of possible peace negotiations with the neighboring enemy Arab states prevented absolutely the annexation of Judea, Samaria and Gaza to the State, then I can fully comprehend what motivated you in advising the application of the laws of war to these two regions, instead of Israeli law, as Ben-Gurion did not hesitate to do in 1948. Of course, I assume that you advised the Eshkol National Unity Government to adopt this course of action, because it corresponded perfectly with the plan that you formulated in the early sixties. However, your plan violated existing Israeli constitutional law (the Area of Jurisdiction and Powers Ordinance; Ben-Gurion's Proclamation of September 2, 1948 ) and therefore should have been discarded. If I am mistaken about this central point and your personal role in this matter, I stand to be corrected and would very much appreciate your response.
Yours truly,
Howard Grief
Howard Grief
19 Tevet, 5767 --
Mr. Justice Meir Shamgar,
President (Retired) of the Supreme Court,
Rehov Shahar 12
96263Jerusalem
President (Retired) of the Supreme Court,
Rehov Shahar 12
96263
Dear Mr. Justice Shamgar,
I acknowledge, with many thanks, your letter dated December 1, 2006 explaining in more detail your legal perspective on what had to be done in June 1967 following Israel's victory in the Six-Day War when the IDF took possession of various areas of the Land of Israel that were not part of the State of Israel.
For purposes of this letter, I have re-read your article entitled "Legal Concepts and Problems of the Israeli Military Government -- The Initial Stage", which only had the effect of confirming what I originally thought: your great responsibility in introducing to Judea and Samaria and the rest of the held or re-possessed territories the norms of international law pertaining to the laws of war embodied in the Hague Rules and the Fourth Geneva Convention, when this was completely unnecessary and contrary to existing Israeli constitutional law.
Inasmuch as you have divided your answer to me into several paragraphs to express various points of substance, I will follow the same format in presenting my reply:
1) In paragraph aleph, you state that "political decisions in a democratic state are not taken by a military body but by the Government". In the context of your letter, this appears to be a misleading statement because the application of international law to Judea and Samaria on June 7, 1967 was not only a "political decision", i.e., a matter of policy, but first and foremost a legal decision, since there existed at the time two constitutional laws (apart from the very important Law of Return) that directly governed the situation and that had to be complied with: the statutory law called the Area of Jurisdiction and Powers Ordinance (hereafter: Ben-Gurion's law) and the non-statutory proclamation issued under its umbrella by means of retroactivity, known as the Israel Defense Forces Government in the Land of Israel Proclamation (hereafter:the Land of Israel Proclamation or, alternatively, Ben-Gurion's Proclamation) of September 2, 1948. You state in your article (p. 46 of the First Reprint edition, 1988), that "pending a political solution", the norms that were applied to the areas not incorporated into Israel
Applying the Hague Judea and Samaria Jordan Judea and Samaria Judea and Samaria
"repeatedly admonished the Israeli legal authorities serving in the territories not to be content with the minimum standards laid down by the rules of warfare on land, but to be alert in ensuring that in any situation not foreseen or not provided for in the customary rules [of international law, i.e., the Hague Regulations] the solutions applied should accord with the consistent safeguarding of the rule of law."
Instead of admonishing the platoon officers to apply international law as it pertains to the laws of warfare in Judea and Samaria
Further evidence of your personal role in advising the application of the norms of international law to the redeemed territories was the fact that under your direction, the legal officers of the platoons were provided with "movable emergency kits" that contained precedents and forms, guidelines and instructions for implementing these norms of international law. The kit contained the manual or vade mecum, which they carried about detailing what legally had to be done in administering the military government of a particular region. This manual or ready-reference aid was written and re-edited by you long before the outbreak of the Six-Day War that required the officers of the Military Advocate's Corps to advise the Military Commander of the Region to implement the Hague Regulations and the humanitarian norms or provisions of the Fourth Geneva Convention. I quote directly from your article on this point (p. 31):
"The Manual included the full text of the vital initial enactments [of military government], in Hebrew and Arabic (e.g., Proclamations concerning the Commencement of Occupation, concerning Law and Order and concerning the Entry into Force of the Security Code; furthermore, different Orders relating to security provisions, essential services, jurisdiction in relation to ordinary criminal offences, etc.) [brackets in the original].
The above-mentioned "Proclamations concerning the Commencement of Occupation" -- your actual words -- were, according to your article, prepared by the Military Advocate's Unit on the entry of the IDF into the region originally denoted as the "West Bank " (p. 24). This Unit was under the direct command of the Military Advocate-General, i.e., yourself (p. 25). This confirms your personal role in overseeing and introducing Proclamation No. 1 on the Assumption of Power by the Israel Defense Forces in Judea and Samaria June 7, 1967 in the name of the Commander of Forces of the Israel Defense Army, General Haim Herzog, as well as Proclamation No. 2 on Law and Administration. You were therefore instrumental in advising and convincing the Government of Israel in June 1967 to apply the norms of international law to all of the territories the IDF entered and took possession of. Thanks largely to your plan and program, these territories became known to almost everyone in the world as "occupied territories" instead of what they actually represented, the restored territories and patrimony of the Jewish People as originally envisaged by international law and embodied in various documents subscribed to by the Principal Allied Powers in 1920 and 1922. Your plan and program were implemented by the Government not as a matter of law, but as a matter of policy, and has haunted the State of Israel ever since, causing it incalculable damage. This result was brought about by what appears to be your fixation on applying the norms of international law to redeemed Jewish territories, that contradicted Ben-Gurion's law and proclamation. The Government took a political decision, it is true, but it was not taken in a vacuum. As the evidence shows, i.e., the special courses you gave, the movable emergency kit with all the material it contained relating to international law, and your own articles on the subject, the government decision was based largely on faulty legal advice that was not only terribly wrong but violated the existing Israeli constitutional law, as noted above.
2) As regards your allegation in paragraph beth that I overlooked section 11B of the Law and Administration Ordinance (hereafter: section 11B), as well as section 8A(a) of the Municipalities Ordinance, it brought a smile to my lips for I discussed these two laws in detail in a 1996 Petition to Annul the Interim Agreement, submitted on behalf of eight Petitioners to the Supreme Court of Israel (HCJ 3414/96). This Petition was subsequently published in English in booklet form by the Ariel Center
In my letters to you, I did not discuss section 11B and the amended provision of the Municipalities Ordinance that you refer to, for the simple reason that they did not exist on June 7, 1967 when international law was illegally applied to Judea and Samaria June 27, 1967 , three weeks after the entry of the IDF into the region, that they were enacted by the Knesset. These laws thus have no relevance in replying to the question why Ben-Gurion's law and proclamation, which were in force on June 7, 1967 , were never invoked. Had that law and proclamation been duly adhered to by the Government, there would have been no need to enact section 11B. The enactment of the new law was completely unnecessary and superfluous. I also wonder who the people were who advised the Government to enact section 11B, rather than to enforce the existing laws that were Ben-Gurion's legacy.
3) I am very puzzled by what seems to be the unfounded distinction you make in paragraph gimmel between the purpose of the Land of Israel Proclamation (which I have also called "Ben-Gurion's Proclamation" in this letter) -- incidentally, the date of its publication in the Official Gazette is September 3, 1948, and not September 13 as your typist wrote -- and the purpose of section 11B, as well as the distinction you make in regard to Ben-Gurion's law (i.e., the Area of Jurisdiction and Powers Ordinance) between the territory included in the State of Israel and the territories held by the IDF. In all your articles, I do not find any mention of the Land of Israel Proclamation
I do not understand how you can say that the territory referred to in Ben-Gurion's proclamation differs from the territory referred to in section 11B. The Land of Israel Land of Israel
While there is no difference between the 1948 held-territories of Ben-Gurion's law and the re-conquered Land of Israel Land of Israel Land of Israel
In regard to the meaning of shetah muhzak (or any variation thereof) as used in both the Land of Israel Proclamation and Ben-Gurion's law and the term shetah kavush, I refer you to the legislative debate that took place on September 16, 1948 between the Minister of Justice Pinhas Rosen (then called Felix Rosenblueth) and Zerah Wahrhaftig, of the Ha-Po'el Ha-Mizrahi party (later the National Religious Party) -- see pp. 49-54 of the enclosed Petition to Annul the Interim Agreement (see also "Proceedings of the Provisional State Council, Sitting 18, Sept. 16, 1948, pp. 7-8). Shetah muhzak, before being corrupted by mis-translation, referred to an area of the Land of Israel May 14, 1948 . Shetah kavush, on the other hand, refers to "occupied territory" or foreign territory under the sovereignty of another state and not part of the Land of Israel
Regarding your point that the map attached to the Land of Israel Proclamation Land of Israel September 2, 1948 . All areas captured by Jewish forces, excluding Jerusalem, before this date, that were part of the Land of Israel but outside the U.N. Partition lines, such as Jaffa (captured May 13, 1948), Acco (captured May 17, 1948 after a Hagana onslaught that began 4 days earlier, that gave Israel tentative control of Acco and caused most of its Arab inhabitants to flee) and Nahariya in western Galilee (captured in May 1948 after the fall of Acco), would not have been included on a map delineated in red, signed and dated by the Defense Minister, when those areas had already become integral parts of the State of Israel by the immediate application of Israeli law. It would have been redundant to do so. Most of western and southern Galilee, destined for the proposed Arab state under the UN Partition Plan, was taken by Jewish forces between May and July 1948, including such places as Hanita and nearby villages, as well as Yehi'am, Zippori (Sepphoris) and Nazareth. These areas, located in the proposed Arab state, as also in the cases of Jaffa, Acco and Nahariya, were all included in the State of Israel, not by marking their location on a map as provided for in Ben-Gurion's proclamation, but, as already noted, by applying the law of the State to them, as provided for in Ben-Gurion's law. In this matter, due attention must be paid to the fact that once Ben-Gurion's Proclamation was issued on September 2, 1948, it was open-ended in nature and therefore applied to all areas -- apart from Jerusalem and its environs -- of the Land of Israel then not part of the State of Israel, without specifically naming these areas in compliance with Ben-Gurion's law which required a proclamation to be issued to define the area of the Land of Israel being held by the IDF.
Ben-Gurion's proclamation also provided for supplementary maps for areas of the Land of Israel held by the IDF after September 2, 1948 (see Article 1 of the Proclamation as regards its Interpretation, and Article 5 dealing with the validity of the Proclamation), a situation which would have applied to Beersheba (captured Oct. 21, 1948), Ashkelon (Majdal -- captured in October 1948 from the Egyptian army), Ashdod (Isdud -- captured in October 1948 after the Egyptian forces were cut off and the local Arabs left) and Eilat (Umm Rashrash, taken by Israel on March 13, 1949, and originally included within the UN Partition lines). Ben-Gurion's law and proclamation were definitely in force on June 7, 1967, which meant that Judea and Samaria, Gaza, the Golan Heights and the Sinai Peninsula (assuming it is part of the Land of Israel, as Ben-Gurion believed in 1956), should have been automatically incorporated into the State. That was the law, and that was not done. The Government of Israel has violated the sacred "Rule of Law" ever since.
Incidentally, I have twice written to the Ministry of Defense in Tel-Aviv to obtain the map or maps referred to in Ben-Gurion's Proclamation of September 2, 1948 . They sent me a copy of the map attached to the Jerusalem Proclamation of August 2, 1948 but could not locate the map or maps attached to the Land of Israel Proclamation September 2, 1948 . If you have the citation for obtaining the latter map, I would greatly appreciate getting it from you, to enable me obtain this map.
4) There is no disagreement as far as paragraph daleth is concerned, relating to the Jerusalem Proclamation of August 2, 1948, that was also promulgated by Prime Minister and Defense Minister David Ben-Gurion.
5) In paragraph heh you mention your position about the inapplicability of the Fourth Geneva Convention. Though you hold this position in theory, you as a judge -- and the Government as a matter of policy -- actually implemented the humanitarian provisions of the Fourth Geneva Convention in practice, especially its penal provisions. There seems therefore to be a great contradiction between what you profess to be the situation in law and what you actually did in conforming to the Convention during your terms of office as Military Advocate General, Attorney-General and Supreme Court Justice. In fact, it would have served no purpose for you to give courses on the Fourth Geneva Convention in anticipation of a possible war and also have the Convention included in the movable emergency kit of each platoon officer in the Military Advocate's Corps -- if you, as the superior in charge, did not think that the Convention applied. Why prepare these legal officers regarding the ins and outs of the Convention if it was inapplicable to the regions of the Land of Israel
You were meticulous in assuring the rights of Arabs in the held or repossessed territories and in urging the Government to grant them a right of appeal to the Supreme Court, even though such rights have never been granted to enemy aliens in the courts of other countries. You were so concerned with the observance of the Geneva Convention de facto and applying the norms of international law, but at the same time you did not express any special concern about preserving the Land of Israel
To my thinking, it should have been inconceivable or repugnant for you as a former member of the underground movement in pre-State Israel, the Irgun Zvai Leumi, who supposedly was not hindered by a ghetto mentality, to be so ready to honour the Arabs of Judea and Samaria, who wanted nothing more than to destroy the Jewish State, by gratuitously applying to them the norms of international law so that they were thus able afterwards to protest vociferously the settling of Jews in this region as being "illegal" and to denounce Israel's so-called "occupation" of "their" land. By applying the Convention to the local Arabs, they were also empowered to claim the status of "protected persons" under the Convention, and this in turn allowed the International Committee of the Red Cross and the hostile United Nations to monitor their treatment and intervene in Israel Land of Israel Judea and Samaria Land of Israel
These are simple truths that you and your fellow justices on the Supreme Court should be truly remorseful for. You undoubtedly and understandably do not like to hear or read what I have to say on this subject, but this is the terrible end result of what you and your colleagues on the bench caused the people of Israel Land of Israel
6) In paragraph vav of your letter, you seem to take liberties with Ben-Gurion's view of retaining Judea and Samaria Jerusalem
Ben-Gurion uttered this opinion when he was no longer active in public life and had already begun to fall ill, according to what the late Professor Yuval Ne'eman, who knew him well, told me. On other occasions, he expressed a diametrically opposite opinion, once in 1937 and once again in 1956. In 1937, at the 20th Zionist Congress (August 3-16, 1937, Zurich), he gave a speech at Basel
No Jew is entitled to give up the right of establishing (settling) the Jewish nation in the Land of Israel
In 1948, when Ben-Gurion became Prime Minister of the State of Israel, he provided for the eventual expansion of the boundaries of the State to encompass all of the Land of Israel Land of Israel Proclamation
On November 7, 1956 , Ben-Gurion delivered an address to the Knesset which is sometimes called his "Third Kingdom of Israel" speech, although he did not use those actual words. In that speech, coming after the capture of the Sinai Peninsula in a seven-day campaign code-named Operation Kadesh, Ben-Gurion stated clearly and repeatedly that Israel land of Egypt
As I write this letter, the former long-serving Mayor of Jerusalem, Theodor (Teddy) Kollek, has passed away. In reading his obituary, I noticed a striking parallel between the position he held for many years in regard to Jerusalem Land of Israel Jerusalem Israel Jerusalem Land of Israel Israel
Despite Ben-Gurion's change of heart in 1967, I prefer to think of him as a pragmatic exponent and loyalist of the Land of Israel who was loath to surrender any part of the Land of Israel unless compelled to do so under duress, as occurred in 1956 immediately after the capture of Sinai and Gaza. John Foster Dulles, the then-U.S. Secretary of State, threatened to cut off all financial aid to Israel Israel Russia Israel Gaza Egypt Land of Israel Land of Israel Land of Egypt
I wish to conclude my letter by referring to the 1979 landmark case of Dvikat (or Dwaikat) v. Government of Israel et al., famously known as the Elon Moreh case, that you favourably cite in your article. This judgment, rendered by Deputy-President Moshe Landau, is a judicial travesty directly traceable to your doorstep, that serves today as a pillar for labeling Judea and Samaria Land of Israel Proclamation Land of Israel Judea and Samaria Judea and Samaria Land of Israel Proclamation June 7, 1967 by Brigadier-General Haim Herzog which, he thought, exclusively determined the legal status of Judea and Samaria July 5, 1950 , which overrides the Hague Regulations that permit requisition of land only for military needs. The Law of Return and Article 6 of the Mandate for Palestine sanction Jewish settlement not merely on land located in the State of Israel, whether publicly or privately owned or simply ownerless, but also in the rest of the Land of Israel, outside the State's boundaries, in IDF or Jewish possession, as indicated by use of the Hebrew word artza in section 1 of the Law of Return and also by what Ben-Gurion said in personally introducing this law in the Knesset on July 3 and July 5, 1950. When Ben-Gurion explained that every Jew has the right to come and settle in Israel, he certainly did not mean to limit this right to the existing boundaries of the State of Israel, otherwise the Law of Return, read in conjunction with the Area of Jurisdiction and Powers Ordinance and the Land of Israel Proclamation, would have made no sense nor served any purpose. When Ben-Gurion further said that this right was recognized in the law of nations and existed even before the State did, and was, in fact, that which built the State, he undoubtedly had in mind Article 6 of the Mandate for Palestine Land of Israel Land of Israel Land of Israel
The recently retired President of the Supreme Court, Justice Aharon Barak, has proceeded along the same path as Justice Landau and gone even further, basing several of his recent judgments on the false premise that Judea and Samaria are governed by the rules of belligerent occupation, including the Fourth Geneva Convention and even the Geneva Protocols of 1977, which eradicates the rights of the Jewish People and its assignee, the State of Israel, to Judea, Samaria and -- formerly -- Gaza. This I stress and repeat is the dire consequence of your original plan and program to apply the norms of international law to the areas of the Jewish homeland lying outside the technically temporary borders of the State. I have written to Justices Landau and Barak in the same vein that I wrote to you, even sending Justice Landau a copy of Ben-Gurion's Proclamation, but neither he nor Justice Barak have bothered to respond or even acknowledge my letters.
With all due respect to you as a learned and eminent judge and jurist, I ask you once again in all earnestness to reconsider and restate your position on the legal status of Judea and Samaria Israel the Hague Judea and Samaria
In closing, I may not know, as you state, all the facts of inner government workings and decisions that took place in 1967 as I was not privy to them, as you were. Your reproach that I also lack knowledge of the relevant law to support my position is refuted, as can be judged by this letter and my published Petition. Anyone, like myself, who has observed and studied the results of what was done by the decision-makers of that time can only gasp in disbelief at the errors and violations of law that were made at the highest levels. Instead of following Ben-Gurion's wise and patriotic path as expressed in the laws he was responsible for enacting in 1948 and 1950, that embraced the Land of Israel as the eternal treasure and patrimony of the Jewish People, the Eshkol Government and you included appear to have embraced a non-Zionist, bizarre and illegal policy to treat the Land of Israel as part of foreign territory, the rights to which were viewed, in the eyes of most people in the world, as being vested not in the Jewish People but in Arab pretenders. This shame must be expunged, and you, who inspired the application of international law to liberated Jewish territories, are the one person who can make that happen!
Yours truly,
Howard Grief
Howard Grief
Howard Grief
Attorney and Notary
13/2 David Goitein St.,
Pisgat Ze'ev Mizrah, Jerusalem 97782 Israel
Tel. (Fax) : 972-2-656-0085
Attorney and Notary
13/2 David Goitein St.,
Pisgat Ze'ev Mizrah, Jerusalem 97782 Israel
Tel. (Fax) : 972-2-656-0085
9 Adar, 5767 --
Mr. Justice Meir Shamgar,
President (Retired) of the Supreme Court,
Rehov Shahar 12
96263Jerusalem
President (Retired) of the Supreme Court,
Rehov Shahar 12
96263
Dear Mr. Justice Shamgar,
I thank you for your letter of January 21, 2007, and for the time you have evidently taken to present further explanations and elaborations of your position in regard to the exact meaning of the Area of Jurisdiction and Powers Ordinance of September 22, 1948 (hereafter: the AJPO) and the proclamation validated by the AJPO, namely, Proclamation No. 1 of the Israel Defense Forces Government in the Land of Israel, of September 2, 1948 (hereafter: the Land of Israel Proclamation). I sharply disagree with your interpretation of these two constitutional enactments by the Provisional State Council and hereby provide you again with my own exposition as to their true meaning and import.
My first disagreement with you centers on your argument that the "area of application of law" is not the same as "an area within the State of Israel". This distinction of yours harks back to an old legal controversy that has been dealt with in the case-law of the Supreme Court and the legal literature. Please see the excellent article pertaining to this controversy in regard to the Golan Heights Law of December 14, 1981 and the Law and Administration Order (No. 1), 5727-1967, in regard to eastern Jerusalem, applying Israeli law to both these territories -- written by Professor Asher Maoz of Tel-Aviv University, Faculty of Law (Asher Maoz, "Application of Israeli Law to the Golan Heights is Annexation", Brooklyn Journal of International Law, 1994, Number 2, pp. 355 to 396). The opposite view is taken by Professor Leon Sheleff in an adjoining article ("Application of Israeli Law to the Golan Heights is not Annexation", op. cit., pp. 333 to 353).
The distinction that you cite between the "area of application of law", which is the heading of section 1 of the AJPO and the "area of the State of Israel" was explained by the Minister of Justice, Pinchas Rosen (then Felix Rosenbleuth), in the legislative debate on the AJPO that took place on September 16, 1948 (the 12th of Elul, 5708), at the 18th Session of the Provisional State Council. Here is what Rosen said about this law (in English translation):
"By virtue of this law, we are setting up a kind of administrative unity by creating a concept which is in the nature of a legal fiction, which is 'the whole of the area' -- ha-shetah ha-kolel, -- also to be translated as "the over-all area" or "the comprehensive area" [defined as] an area including both the area of the State of Israel and the re-possessed area or the held area [please note: I translate the Hebrew term ha-shetah ha-muhzak as either the "re-possessed area" or "held area"; the "re-" as used in "re-possessed" means that that area of the Land of Israel was part of the Jewish National Home that was restored to the Jewish People and the State of Israel; for the same reason I use the word "re-conquered" and never "conquered" to refer to the territories restored in 1967]. And this law states that a person appointed to any position [or office], meaning principally a central or high position -- le-tafkid merkazi -- who is located in the area of the State, will be competent to act also in the re-possessed (held) area. Were it not for this law, doubts might arise, whether, for example, the Attorney-General is able to institute lawsuits and criminal complaints in Nazareth Jerusalem Jerusalem
For the purpose of clarifying the situation and for removing all doubts, we have found it proper, and the Legislation Committee has approved this position, to propose to the [Provisional State
Further on in the legislative debate, Pinchas Rosen replied to a proposed amendment made by Zerah Warhaftig of the Ha-Po'el Ha-Mizrahi party, who asked that the words in sections 1 and 2 of the AJPO, i.e., "the area including both the area of the State of Israel and also any part of Palestine [Eretz-Israel], etc." be deleted and replaced by the words "any law applying to the whole of the State of Israel shall be deemed to apply to any part of Palestine [Eretz-Israel] which the Minister of Defense has defined by Proclamation as being held, etc.". Warhaftig's proposed amendment was rejected by Rosen and the Provisional State Council, on the ground that the Land of Israel Proclamation of September 2, 1948, issued two weeks before the discussion on the AJPO took place, said exactly what Warhaftig was proposing and therefore there was no need to repeat the same thing in the law. Rosen added the following comment concerning the need to enact the AJPO:
...For purposes of administration and law, there is a need for an innovation regarding what was said in the Proclamations [these Proclamations to which Rosen referred were the Jerusalem Proclamation of August 2, 1948 and the Land of Israel Proclamation September 2, 1948 , both of which were validated by the AJPO]. There is a need to create the concept of an area, which includes the held area -- ha-shetah ha-muhzak -- and the area of the State -- hetah ha-medina.
From the foregoing two quotations of Pinchas Rosen, we learn the real reason why an apparent distinction was made between the "area of application of law" and the "area of the State". It was for the purpose of creating a uniformity of law as well as an administrative unity between these two areas. The totality of the two areas -- described in the AJPO by the term "the whole of the area" -- was, according to Rosen, a "legal fiction", an "innovation" or a new legal "concept". This concept of the "whole of the area" covered not only the area of the State of Israel allocated in the U.N. General Assembly Partition Plan of November 29, 1947, but also part of the area that was intended for inclusion in the proposed Arab State but was re-possessed by the IDF in the War of Independence, to which was also added the city of western Jerusalem and its approaches. This new concept was, in my opinion, a "sleight of hand", or clever deception to mislead the U.N. by feigning compliance with the Partition Resolution that the Jewish Agency had accepted before the State was proclaimed. By phrasing the AJPO in this way, it gave Israel Israel Jerusalem Nazareth Land of Israel
If we are to accept your interpretation of the AJPO and the two proclamations of August 2, 1948 and September2, 1948 that the application of Israeli law to any area of the Land of Israel outside the U.N. Partition line was not equivalent to making that area a part of the State of Israel, then western Jerusalem and its approaches would not have been part of the State as soon as it came under Israel's full control. Nor would Jaffa Nazareth Beersheba Ashkelon and Ashdod Land of Israel
1. by marking a map of the Land of Israel in red with the names of the re-possessed areas, as was done in the specific cases of Jerusalem, Lod and Ramla, in conformity with the method set out in the Jerusalem Proclamation and the Land of Israel Proclamation;
2. by application of the law of the State to the repossessed area, without delineating this area on a map of the Land of Israel, as also provided for in the aforementioned Proclamations, as well as in the AJPO. Concerning this method, I venture to say that the words "defined by proclamation" -- asher sar ha-bitahon higdir otan be-minshar ke-muhzak 'al-yedei tzva-hagana le-yisrael -- as appears in sections 1 and 2 of the AJPO are a direct reference to any past (the two proclamations already issued) or future proclamations applying the law of the State to the held areas wherever situated in the Land of Israel beyond the U.N. Partition line.
The phrase "area of application of law" was a euphemism or semantic invention to conceal the fact that the repossessed areas were being annexed to the State of Israel. The name of the law -- the AJPO -- did not reflect its true purpose. It was really intended to be a law of annexation, as proved by the result that followed its implementation, but was adroitly drafted by Rosen and his team in the Ministry of Justice as a law to extend Israel Land of Israel
Applying the law of the State to an area not previously included within it is certainly an act to assert sovereignty over that area, or, as Justice Haim Cohn called it, "an act of state" (quoted in the article by Professor Maoz, p. 361, footnote 31; see also p. 369, footnote 71). The consequence of this act of sovereignty is to join that area to the State of Israel. According to Justice Cohn (as quoted by Professor Maoz):
Both the proclamation of the Minister of Defense according to the Order issued in 1948 and the order of the government according to the law passed in 1967, are both acts of state par excellence, and as such require prior consideration as well as a political decision, for both of the actions were intended to convert the areas to which they related into part of the area of the State of Israel.
The citation for Justice Cohn's statement is given by Professor Maoz as: The Status of Jerusalem in the Legal System of the State of Israel, 1967-1987, at 246, 249 (Joshua Prawer & Ora Ahimeir, eds., 1988), reprinted in 1 HAIM H. COHN SELECTED ESSAYS 361 (1991).
An act of state is defined as an assertion of sovereign power by the Government on the international level, and this is exactly what occurred when Israel
Justice Cohn had apparently changed his mind on this subject, for in an earlier statement he made in the case of Ravidi v. Military Court, Hebron Zone, [24] 2 P.D. 419 (1969), he stated:
the thesis that the application of Israeli law to a particular area, is equivalent to the annexation of the area to the State of Israel still requires proof. In the Justice's opinion "there is ...nothing to prevent the application of the law of Israel
What Justice Cohn said in the Ravidi case in 1969 would agree with your own distinction, but what he later said in his above-quoted article in 1988 agrees with my opinion that annexation is the legal result of applying Israeli law to an area of the Land of Israel
In this regard, Professor Maoz also cites the statement of Justice Yitzhak Kahan in the above-noted Ravidi case as to the consequence of the government order under the Law and Administration Order (No. 1), 5727-1967 applying Israeli law to eastern Jerusalem that had been illegally ruled by Jordan from May 15, 1948 to June 7,1967.Justice Kahan maintained that eastern Jerusalem was annexed to the State of Israel as a result of the application of Israeli law to eastern Jerusalem, a statement which "echoed opinions voiced by other justices of the Supreme Court" (pp. 361-362 of Prof. Maoz's article). The "other justices" mentioned by Prof. Maoz included Justice Halevi, Justice Berenzon and President Justice Agranat. Moreover, a majority of constitutional or academic jurists in Israel Jerusalem
After the judgment rendered by Justice Barak in the case of Awad v. Prime Minister and Minister of the Interior, [42] 2 P.D. 424 (1988), it is now settled case-law that the application of Israeli law, jurisdiction and administration to any area of the Land of Israel, outside its present borders, effectively annexes that area to the State, making it a part thereof, whether the area in question is eastern Jerusalem, the Golan Heights or any other area of the Land of Israel.
That also appears to be the strong underlying assumption of the new law passed in 1999 entitled the Law and Administration Law (Cancellation of the Application of the Law, Jurisdiction and Administration), 5759-1999: hok sidrei ha-shilton u-mishpat - bittul hehalat ha-mishpat, ha-shipput ve-ha-minhal, 5759. Under this law, a decision taken by the Government as set down in an international treaty or agreement, the purpose of which is to cancel or withdraw the application of the law, jurisdiction or administration of the State of Israel to an "area", as it is termed simply in the law, presumably an area located anywhere in the State, needs both the approval of the majority of the Knesset members, as well as the approval of the majority of votes cast by the participants in a public referendum or plebiscite. The entire basis of this law is to remove or "de-annex" a pre-existing "area" from the State to which the law, jurisdiction and administration of Israel
One final observation concerning the definition of "an area of the State of Israel" should be brought to your attention. This phrase was actually defined in the 2001 law called the "Denial of the Right of Return Entrenchment Law" -- hok shiryun shelilat zechut ha-shiva, 5761 -- as follows:
Area of the State of Israel: "an area located within the borders of the sovereign rule of Israel
In my opinion, this would equate the "application of law" to an area of the State of Israel with the sovereign rule of Israel
I have written elsewhere that Israeli sovereignty also extends to Judea , Samaria Gaza Land of Israel Proclamation Judea , Samaria Gaza April 25, 1920 , but the regrettable fact is that the State of Israel has never formally acknowledged or asserted its own inherited sovereignty over these areas. I treat this subject in my forthcoming book on The Legal Foundation and Borders of Israel under International Law, and therefore refrain from further discussing this question here.
The fact that the AJPO was amended in 1956 to include section 2 A, which uses the expression "shall be deemed to be part of the area of the State of Israel" in regard to any vessel (ship) or aircraft, wherever situated, does not prove what you strongly impute to it, that the legislator deliberately avoided the use of the same expression in AJPO as is found in section 2A, because "the area of application of law" was not tantamount to "the area of the State of Israel". However, in the case of a ship or aircraft, an express identification was needed to prove that the ownership of the vessel or aircraft was that of the State of Israel and not of another, foreign state, for the purpose of determining the jurisdiction of the courts of Israel in the event that a crime is committed on board the vessel or aircraft or if a lawsuit for damages was brought by an injured passenger or his heirs, etc. This case obviously differs from sections 1 and 2 of the AJPO where the law is talking about dry land and not about movable property (wood and iron) located outside the boundaries of the State. The legislator acted wisely in identifying these carriers or public conveyances as being a part of the State of Israel, to remove any doubts about their legal status. Consequently, an attack on an Israeli vessel or aircraft that takes place outside Israel
You tell me in your letter that only the Government of Israel has the authority to decide if an area or region of the Land of Israel
It is not my intention or wish to embarrass you about who originated the term the "held areas" -- shetahim muhzakim -- but it was first used in 1948 in the two afore-mentloned Proclamations and could not therefore have originated with you. You can verify for yourself that this term was specifically defined in section 1 of Proclamation No. 1 of the IDF Government in the Land of Israel Jerusalem Israel Palestine
English translations of the Hebrew legal terms shetah muhzak and shetah kavush are, it is agreed, irrelevant from the point-of-view of Israeli law, but on the contrary they are of utmost importance from the point-of-view of international law and also popular understanding of what Israel did in 1967. Had the term shetah muhzak been correctly translated as a "held area" and not as an "occupied area", there would probably not have arisen such a fierce world outcry against Israel Israel United States Land of Israel Land of Israel Proclamation
I also take issue with your statement that the law in force in Israel on September 22, 1948, the date when the AJPO came into operation, was completely identical to the law that applied in the other areas of the Land of Israel which were part of the Mandate, the implication being that it did not matter whether Israeli law or international law was applied since they were both the same. This is an intriguing argument, but it, too, falls apart upon closer examination. First, the corpus of law in the new State of Israel was not identical to the pre-existing law, because important changes were introduced right at the inception of the State of Israel, as set out in section 13 of the Law and Administration Ordinance and also in the Proclamation issued by the Provisional Council of State on May 14, 1948 that accompanied the Declaration of the Establishment of the State. These changes were necessitated by the continued existence of several provisions of laws dating from the White Paper of May 17, 1939, that would have remained in force had not the new legislative authority, the Provisional State Council, declared them null and void. These provisions of law were: sections 13 to 15 of the Immigration Ordinance, 1941; Regulations 102 to 107C of the Defence (Emergency) Regulations, 1945; and the Land Regulations, 1940. In addition, the Law and Administration (Further Provisions) Ordinance of July 1, 1948 stated as follows:
Construction of laws
Section 2: For the removal of doubts it is hereby declared:
Section 2: For the removal of doubts it is hereby declared:
(a) where any law enacted by or on behalf of the Provisional Council of State is repugnant to any law which was in force in Palestine on the 5th of Iyar, 5708 (14th May, 1948), the earlier law shall be deemed to be repealed or amended even if the new law contains no express repeal or amendment of the earlier law.
By passing this kind of legislation the Provisional State Council made it clear that the body of law that was in force prior to the establishment of the State was not identical to the law that existed afterwards.
Moreover, if international law had been applied to the "held areas" in 1948, instead of the law of the State, this would have created the same type of legal damage and controversy as occurred in 1967 when this is what was actually done, apparently on your advice and based on your preparatory work. The laws and customs of war as embodied in the Hague Rules of 1907 would then have applied to all territories beyond the UN Partition line for the Jewish State held by the IDF, based on the premise that they were "occupied territories" or were acquired through war, especially if the Arab state proposed in the Partition Plan had come into existence in the areas not held by the IDF, or also if Trans-Jordan, as Jordan was then called, had purported to act on behalf of this aborted Arab state. In seizing the land allotted for the proposed Arab state under the UN Partition Plan, the Arab state of Trans-Jordan effectively replaced the aborted Arab state with the consent of the Arab notables living in Judea and Samaria, thus giving it a supposed right to argue that "Arab land" held by Israel that had been earmarked for the Arab state was being occupied by the Jewish State under the Hague Rules of international law. We are talking here only of theoretical possibilities, but since you raised this subject, a future mess could have been created if the Government of Israel had acted in 1948 as it did in 1967 by applying international law to areas of the Land of Israel not included in the State's boundaries under the UN Resolution of November 29, 1947.
Of course, Israel August 2, 1948 and September 2, 1948 , but it cannot be denied that this kind of Arab complaint supported by the U.N. could have theoretically popped up and weakened Israel Land of Israel
In summary, this application of Israeli law to the held areas avoided the application of British Mandatory enactments that were discriminatory against Jews and contrary to the provisions of the Mandate, and also avoided the possible invocation of the Hague Rules to the held areas, or as the Arabs may have called them, the "occupied areas" of the proposed Arab state, seized by Transjordan in the name of that state.
As to section 2 of the AJPO, this provision extends Israel
In our correspondence, I have staked my whole argument as to why the law of the State had to be applied in regard to all areas of the Land of Israel Land of Israel Proclamation January 21, 2007 you adopt a very restrictive view of the meaning of this pivotal Proclamation when you affirm that it related only to Ramla and Lod and that my assumptions regarding the scope of its applicability have no factual foundation. You base your interpretation on the map attached to this Proclamation which depicted only Ramla and Lod. However, if we take a good look at the legislative debate on the AJPO and also examine the language of the text of the Land of Israel Proclamation
In the legislative debate on the bill containing the AJPO before it became law, the following are the exact words of Justice Minister Pinchas Rosen explaining its meaning and scope:
pekuda zo, she-'avra et va'adat ha-hakika ve-ushra 'al-yadah peh ehad, ba'a kedei le-faresh uke-hashlim et ha-minsharim, she-lefihem hutal hok ha-medina 'al ha-shetahim ha-muhzakim/ attem be-vaddai zokhrim ahe-pursemu shnei minsharim ka-elleh, minshar ehad she-hetil et hok ha-medina 'al shetah yerushalayim, u-minshar sheni she-hetil et hok medinat yisrael 'al yeter ha-shetahim ha-muhzakim.
In the above-quoted paragraph, Rosen states explicitly, first that the Jerusalem Proclamation imposed the law of the State on the area of Jerusalem Land of Israel Proclamation Jerusalem Nazareth August 2, 1948 , and the latter -- by the Proclamation of September 2, 1948 . He does not specifically mention Ramla and Lod, but they are naturally included when he refers to "the rest of the held areas". Zerah Warhaftig, who participated actively in the debate, mentions the area of Jaffa May 13, 1948 , two days prior to the establishment of the State, after its Arab inhabitants abandoned the city.
Warhaftig also spoke directly about the question whether or not the held areas outside the U.N. lines were part of the State. Here is what he said on the subject:
shama'nu kama hatzharot bishivot mo'etzet-ha-medina u-mi-hutza lah mi-pi sar ha-hutz ve-gam mi-pi rosh ha-memshala 'atzmo, she-anahnu lo kibbalnu et ha-gevulot shel kaf-tet be-November ke-muhlatim, ve-she-be'ekev ha-devarim she-halu me-az ve-'ad ha-yom nidrosh shinui ba-gevulot im ha-davar yuva bifnei ha-um. be-khol ofen, ha-shetahim ha-nimtza'im mi-hutz la-gevulot halalu einam mi-hutz li-gevulot medinat yisrael. yeshnam sham halakim she-yihyu kelulim bim'dinat yisrael.
There was no doubt in Warhaftig's mind that Jerusalem, Jaffa, Nazareth and the rest of the held areas were part of the State of Israel and that the provisional borders of the State as delineated in the UN Partition Plan no longer coincided with those borders, but had been expanded to include the held areas.
It will be recalled, as previously discussed in this letter, that Warhaftig wanted to amend the bill for the AJPO to include the words "any law applying to the whole of the State shall be deemed to apply to all parts of the Land of Israel Land of Israel Proclamation Land of Israel Proclamation Land of Israel
In addition to the foregoing evidence of the wide scope of the Land of Israel Proclamation Land of Israel Jerusalem Land of Israel
Moreover, Article 1 of the Land of Israel Proclamation refers to the held areas that may be delineated on any other map replacing the map attached to the proclamation of September 2, 1948, and the concluding part of Article 5 refers to the held areas the possession of which passed to the IDF afterwards, i.e., after September 2,1948. The wording of the proclamation in Articles 1 and 5 makes it evident that it applies to all areas held by the IDF that were either recovered in battle or abandoned or surrendered by their Arab inhabitants, whether such areas were re-captured prior to September 2, 1948 or after that date, and not just to the held areas of Ramla and Lod.
It seems to me that the delineation of areas re-conquered by the IDF as shown on a map of the Land of Israel and then incorporated into the State was a makeshift or temporary method, that was replaced by a better method for accomplishing the same purpose, which was simply to apply the law of the State to the held areas, as provided for in Article 2 of the Land of Israel Proclamation and Article 1 of the AJPO. This is exactly what happened when Beersheba Ashdod Ashkelon were repossessed by the IDF more than a month after the Proclamation was originally issued. There is no disputing the fact that this proclamation, the scope of which I have shown is open-ended, applied to these newly re-conquered areas and would also have applied to other areas of the Land of Israel such as Ramallah or Hebron or, for that matter, to all of Judea and Samaria had they too been re-conquered in the War of Independence. The same method of annexing areas of the Land of Israel Judea and Samaria Land of Israel Israel Land of Israel
Moving on to your next point, you refer to "the end of section 3 of the Ordinance" as being derived from customary public international law. This provision of law validated retroactively all acts done "which but for the provisions of this Ordinance would be without effect". This section validated the two proclamations issued by the Minister of Defense, which extended the law of the State to all the held areas. However, I am mystified by your statement that section 3 represents customary public international law. In any event, I agree with you that customary international law is part of the law of the State which is taken from English common law. This is independent of the fact that the Hague Rules, having the status of customary international law, were inapplicable to any area of the Land of Israel re-conquered by the IDF, both in 1948 and in 1967, since such areas were not occupied lands governed by international law.
As to your final point, you reiterate that section 11B of the Law and Administration Ordinance, 1948 deals with the inclusion of territory in the State of Israel, in supposed contrast to the AJPO which, in your opinion, does not. I believe that in its essence Section 11B is hardly different from the AJPO, except that the former is implemented by the Government as a whole and is optional in nature, while the latter is implemented by the Minister of Defense on behalf of the Government and is mandatory. Section 11B never explicitly states that an area of the Land of Israel
On this point, you justify your position by referring to the statement made by the Minister of Justice, Ya'akov Shimshon Shapiro, in the Knesset debate when section 11B was presented as an amendment to the Law and Administration Ordinance. I have read Shapiro's speech. He said in effect that to join an area of the Land of Israel to the State, in particular to an existing municipality under section 8A(a) of the Municipalities Ordinance, an act of sovereignty was required, and that could be accomplished by applying the law of the State to any part of the Land of Israel actually under the de facto control of the State. What Shapiro was saying in 1967 -- about applying Israeli law, jurisdiction and administration to liberated areas beyond the borders of the State was really no different from what Rosen said in 1948 about applying Israeli law and administration to the held areas. Shapiro was even more emphatic than Rosen in this matter because he said that not only had the IDF taken control of considerable, but not contiguous areas of the Land of Israel in the Six-Day War, but had "liberated" them "from the yoke of foreigners" ...
...hu she-tzva hagana le-yisrael shihrer me-'ol zarim halakim nikkarim me-eretz yisrael, lav davka retzufim' ve-ha-nimtza'im zeh le-ma'ala mi-shevu'ayim bishelitat tzahal
To conclude this letter, I feel I understand fully your reluctance to admit any error in your legal position affecting the Land of Israel
You have also greatly influenced other members of the judiciary, particularly Justices Moshe Landau and Aharon Barak in their judgments that served to reinforce your original view that the liberated Jewish territories of Judea and Samaria
I continue to hope that you will realize the truth of what I have written and will decide to act accordingly.
Yours truly,
Howard Grief
Howard Grief
Editor's Comment: For technical reasons words originally written in Hebrew have been transliterated. The original Hebrew may be obtained by writing Attorney Grief at 13/2 David Goitein St. Jerusalem Israel
From Yoel Lerner,
Editor of the "Howard Grief Eretz-Israel Letters"
The Howard Grief Letters to Meir Shamgar, being one side of the correspondence conducted by the author, a Jerusalem attorney specializing in Israeli constitutional law and international law regarding Eretz-Israel, and Meir Shamgar, President (Emeritus) of the Israeli Supreme Court, focus on the part played by the latter in the crucial years between 1961 and 1968 when Shamgar served as Military Advocate General and Israel came into de facto possession of much of the land outside the borders of the State but already allocated to the Jewish People at the conclusion of the First World War in the global settlement that brought into existence many states in South East Europe as well as in the predominantly Arab Middle East. These Letters, written in the English language in which Howard Grief expresses himself most eloquently, provide the basis for a desperately-needed thorough revision of the Israeli legal treatment of Yehuda v'Shomron --
The Howard Grief Letters to Meir Shamgar were written in two stages, the first being an abortive stage (November 2005) where Attorney Grief sent President (Emeritus) Shamgar a copy of a letter he had written to a mutual acquaintance, Mr. Eliezer Dembitz, a former Military Court Judge appointed to his post by Shamgar himself, "in which [Grief] amplif[ies] the point why [Shamgar] was... in breach of the existing constitutional law when [he, Shamgar] conceived the plan in the early 1960s to apply international law, instead of Israeli law, to re-conquered areas of the Land of Israel and the Jewish National Home," actually repossessed in 1967. No comment on the contents of the letter, with which the Correspondence begins, was forthcoming from President Shamgar at that time.
The second and far more fruitful stage of this unique Correspondence began a year later when Howard Grief wrote directly to President [Emeritus] Shamgar. Shamgar's reply initiated a fascinating exchange of letters and of thoughts that took place over a period of several months. It was President [Emeritus] Shamgar's categorical objection to the publication of the letters he himself had contributed to the Correspondence that led to the decision to publish Howard Grief's letters in the present format. The discerning reader will be able to reconstruct many of the arguments made by President [Emeritus] Shamgar, to which Howard Grief has responded.
Yoel Lerner, Editor
April, 2007 |
Howard Grief was born in Montreal, Canada, educated in law at McGill University Land of Israel Israel
He formulated the original thesis that sovereignty over the entire Land of Israel and Palestine was devolved upon the Jewish People at the San Remo Peace Conference in April 1920 as part of the global settlement that dismembered the Ottoman Turkish Empire and created the Middle Eastern states of today; as a consequence, the British White Papers published during the Mandate period, as well as the UN General Assembly Partition Plan of 1947, were illegal. He is the author of two forthcoming books on The Legal Foundation and Borders of Israel
The "Howard Grief Eretz-Israel Letters to Meir Shamgar, 2005-2007 -- on Eretz-Israel and Israeli Constitutional Law" edited by Yoel Lerner was published by the Office For Israeli Constitutional Law (Registered Amuta), Iyar 5767 -- May 2007. It was submitted to Think-Israel
[Editor's note: You can read Howard Grief, "The Origin of the Occupation Myth," by clicking here. And his article on "Legal Rights and Title of Sovereignty of the Jewish People to the Land of Israel Palestine
HE ORIGIN OF THE OCCUPATION MYTH
by Howard Grief
Inasmuch as Israel is always unjustly condemned by the United Nations as an occupier of "Arab land" in regard to Judea, Samaria and Gaza, a condemnation that has no basis in either fact or law, it is important to trace the origin of this pernicious myth. This myth has provided the world body with the necessary pretext to intervene constantly in the internal affairs of these Jewish lands. The myth originated and has persisted to this very day, astonishingly enough, with the aid of Israel's legal establishment or coterie of eminent jurists ensconced in several centers of authority, notably (1) the Supreme Court of Israel; (2) the Attorney-General's Office; (3) the Ministry of Justice; (4) the International Law section of the Israel Defense Forces (IDF), operating under the Military Advocate-General's Command; and (5) the Law faculties of Israel's universities.
The individual who bore the greatest responsibility for this myth was Meir Shamgar, who was Military Advocate-General from 1961 to 1968, and later the Attorney-General of Israel the Hague
What moved Meir Shamgar to invoke the laws of war? He described what he did without providing the rationale for doing so in an article he wrote called, "Legal Concepts and Problems of the Israeli Military Government -- the Initial Stage".[1] Shamgar did not conceal his belief that military government based on international law relating to occupied territories was the proper course to follow in regard to Judea, Samaria, Gaza, Golan and Sinai. He referred in a general sense to these territories as "enemy territory" or "occupied enemy territory".[2] Elsewhere he called the same territories "occupied", "under military occupation" or "administered", but he never called them "liberated territories of the Jewish National Home", which was their true legal status under international law after their liberation from the illegal Jordanian and Egyptian occupation respectively lasting from May 15, 1948 to June 6-8, 1967.[3] In two revealing and significant footnotes, Shamgar admitted that he had planned the entire legal framework for any territories Israel conquered in a future war with Arab states. He formulated his plan in the early 1960s before the Six Day War was either foreseen or its results imagined. He did this to avoid the situation of a supposed legal vacuum that had prevailed in Sinai after Israel Israel
He conducted special courses for platoon officers belonging to the Military Advocate's Corps. All military advocates carried with them "movable emergency kits" which contained the laws of war (Hague 1907, Geneva IV 1949 etc.) and a large set of precedents of military government proclamations and orders, as well as detailed legal and organizational instructions and guidelines. In addition, Shamgar wrote and published a comprehensive vade-mecum which he called, "Manual for the Military Advocate in Military Government".
As a direct result of Shamgar's ill-conceived plan of what Israel was supposedly obliged to do under international law in the event that the IDF re-captured or liberated any territories of the Land of Israel in Arab hands, a regime of military government based upon the provisions of the Hague Regulations of 1907, specifically Articles 42 and 43, was immediately established in the wake of Israel's total victory on three fronts in the Six Day War. Military Government was defined by Shamgar as "the form of government established by a country which has occupied enemy territory, whether the [occupied land] was formally under the sovereignty of such enemy or whether it could be regarded as former sovereign territory of the occupying power or any of its allies".[4] Despite Shamgar's disclaimer that in establishing a military government, Israel was not necessarily occupying enemy territory that was truly under the sovereignty of the enemy state, especially in regard to Judea, Samaria and Gaza. That was in fact the general perception in the rest of the world, made even more believable by the very application of the provisions of the Hague
The military government was made up of four regional entities covering 1) the Gaza Strip and northern Sinai; 2) central and southern Sinai; 3) Judea and Samaria Golan Heights . The application of Articles 42 and 43 of the Hague Regulations meant that in the case of the (single) region of Judea and Samaria, Jordanian law as it existed on June 7, 1967 that included unrepealed provisions of Mandatory law and remnants of Ottoman law would continue to be enforced unless amended or repealed by new security enactments of the Military Government. In the case of Gaza May 15, 1948 to June 6, 1967 would also continue to be applied, as well as unrepealed Mandatory provisions unless the law was also amended or repealed by the Military Government. In regard to northern Sinai, which was linked to Gaza Jerusalem June 28, 1967 , that ceased to exist only after "East" and "West" Jerusalem
The Golan Heights indeed presented a unique problem. As a result of the fighting that took place there in the Six Day War, none of the judges or lawyers remained in the region after June 10, 1967 to administer the local Syrian law, nor were any Syrian law books available for use. With the breakdown of the previously existing judicial administration, and in accordance with the accepted principles of international law applicable to occupied territories, Israel created new courts for both civil and criminal proceedings under military administration.[5] Security enactments were formulated setting out the substantive law, procedure and law of evidence in civil matters that followed the laws and practice in Israel, and this was also done for criminal offenses and trials. The military administration of the Golan Heights came to an abrupt end with the passage of a Knesset law on December 14, 1981 , that henceforth applied the law, jurisdiction and administration of the State of Israel to this territory, thus in effect annexing it.
The setting up of a military government for all the liberated territories of the Land of Israel Israel
The fatal flaw in Shamgar's plan that should have flashed a red light was that there was never any true obligation incumbent upon Israel to apply international law to the areas of the Land of Israel recaptured in a defensive war by the Israel Defense Forces. This was because Judea , Samaria Gaza Palestine December 23, 1920 and hence were being legally repossessed by Israel Golan Heights were also to be considered an integral part of the Jewish National Home, though illegally removed from the Home by Britain France February 3, 1922 , which took effect only on March 10, 1923 .
Sinai was illegally excluded from the Jewish National Home which was supposed to include all territories to which Jews had a proven historical connection and had settled or governed in the days of the First and Second Temple Periods, when Palestine December 23, 1920 . It was excluded because Britain Egypt Suez Canal which it controlled from possible Turkish attack. Egypt Ottoman Empire since 1517, but in 1882 it was occupied by Britain Egypt Suez Suez Canal , since this border afforded the Turks easy access to the Canal, especially at the southern end.
To change the administrative border between the Sanjak of Jerusalem and the Province of Hedjaz, on the one hand, and the Sinai Peninsula, on the other, Britain deliberately fomented a crisis with Ottoman Turkey called the Aqaba Incident, in which they delivered an ultimatum to Sultan Abd-al-Hamid II on May 3, 1906, demanding a new border in Sinai from Rafiah to the head of the Gulf of Aqaba (Gulf of Eilat), near Taba. The British backed up their ultimatum by sending military and naval forces to the area, one gunboat dropping anchor at Rafiah and another off Taba. Under an imminent threat of war, the Sultan, acting under duress without the support of any foreign state, had no choice but to accede to the new administrative dividing line demanded by the British. An agreement was quickly negotiated and concluded on October 1, 1906 , in which (italics in the original) "Egypt Gulf of Akaba Turkey
In actual fact, since Britain was then acting on behalf of the Principal Allied Powers (the wartime coalition of Britain, France, Italy and Japan), Sinai was at the disposal of these Powers as a group rather than of Britain alone, and since at least half of Sinai was part of the Land of Israel, it should have been attached to Palestine, i.e., the Jewish National Home, in 1920 when its borders were demarcated for the first time in accordance with the spirit and intent of the San Remo Resolution.
Sinai was in fact administered until 1892 from what later became Palestine Egypt Egypt
Prime Minister Menahem Begin erred grievously in 1978 when, during the peace negotiations with Egypt Camp David , he did not challenge President Anwar Sadat's false assertion that Sinai was "sacred Egyptian soil" though it was nothing of the kind. Begin, the erstwhile champion of the Greater Land of Israel, let Israel Israel
The foregoing pertinent facts concerning Judea , Samaria Gaza
What is even more puzzling and legally very grave, which reflects badly on Shamgar's reputation as a jurist, was the manner in which he overlooked or neglected two fundamental Israeli constitutional laws that exclusively governed the post-Six Day War situation before the enactment two and a half weeks later on June 27, 1967 of Section 11B of the Law and Administration Ordinance. This was not only stupendously wrong, but also a staggering violation of the Rule of Law. Had he been more aware of the true significance of these constitutional laws, they would undoubtedly have steered him in the right direction, or at least warned him against the application of international law pertaining to the rules of warfare to the liberated Jewish territories of Judea , Samaria Gaza
It is really dumfounding that Shamgar who was so preoccupied with observing international precedents and guidelines regarding the procedure to be followed after the effective conquest of what he perceived was "enemy territory", failed at the appropriate moment to utilize the leading precedent established in his own country when, during the War of Independence, additional areas of the Land of Israel were recovered by the IDF, that were thenceforth subject to the law of the State. The above facts and precedent were simply ignored or never even thought of by either Shamgar or any members of the team of military advocates who participated in his training program.
In several conversations the present writer has had with the jurist Eliezer Dembitz, who attended the training courses organized by Shamgar and served as a Justice Ministry official, as well as a senior legal adviser to the Knesset Finance Committee, Dembitz has confirmed that, to his knowledge, no one who attended these courses ever propounded the argument that there was no legal necessity to apply the laws of war to the territories liberated in the Six Day War. By his unwise actions calling for and resulting in the application of the norms of international law to these territories, Shamgar entangled Israel in the morass and endless dispute about the applicability of the Fourth Geneva Convention and the Hague Regulations, and moreover, gave credence to the mislabeling of the territories as being "occupied" and the consequent libeling of Israel as an "occupier" of "Arab land". This proved to be an enormous propaganda coup for the Arab cause, while severely undermining Israel
Subsequently, Shamgar seems to have had some second thoughts about what he had planned and overseen to fruition. While he concurred in the application of the Hague Regulations, which he viewed as customary international law that was always binding on Israel, in regard to the conquest of "enemy territory", he did not accept the fact that Israel was likewise bound by the Fourth Geneva Convention since the latter represented conventional international law that the Knesset had never introduced into Israel's legal system and in any case applied only to "occupied territories" over which neither Jordan nor Egypt had been recognized sovereigns with a valid title. Nevertheless, Shamgar's second thoughts on the subject were of no avail since he had already created the mold of a military administrative framework that (except in the cases of Jerusalem Golan Heights ) was never subsequently repudiated or converted into Israeli civilian administration governed in all cases by Knesset statutory law.
The first two proclamations that were issued by Brigadier-General Chaim Herzog, the future President of the State, regarding the region of Judea and Samaria that resulted in the application of Jordanian law and drafted[8] by the Director-General of the Ministry of Justice, Zvi Terlow, based on the organizational legal guidelines and arrangements compiled by Shamgar in the vade-mecum, are still in effect in those parts of this region not governed by the "Palestinian Authority".
The fact that Israel never incorporated Judea, Samaria and Gaza into the State, which since 1967, has been viewed by foreign opinion and most jurists in Israel as "occupied territory", is directly traceable to the Government's implementation of Shamgar's plan, guidelines and arrangements. The "Manual for the Military Advocate in Military Government" written and expanded by Shamgar proves beyond reasonable doubt that he is the one most responsible both for the establishment of a military government in Judea , Samaria Gaza Israel
The tragic mistake and violation of law committed by Shamgar has now become immeasurably worse by two recent Supreme Court judgments,[9] rendered by the President of the Supreme Court and former Attorney-General, Aharon Barak, who decided, without reference to any of the aforementioned laws or international documents that indicated otherwise, that Judea, Samaria and Gaza are indeed territories held by Israel under "belligerent occupation". Barak, in his clever, off-the-mark judgments, did not specify the states or people whose land Israel Judea , Samaria Gaza
His judgments which bind the Government of Israel, unless overturned by legislation, and give great comfort to Israel's enemies and detractors both within and without, are therefore even more damaging than the non-binding, non-enforceable advisory opinion of the International Court of Justice (ICJ) in the case involving the legality of Israel's security fence being constructed in Judea and Samaria. The Court, sitting in The Hague July 9, 2004 , declared the security fence illegal under a false reading of international law. It disregarded the cardinal fact that the whole of Palestine
The relevant documents of international law noted above were either completely ignored or, in the case of the Mandate for Palestine Judea and Samaria Occupied Palestinian Territory Israel
This opinion gives the Arabs a public-relations bonanza, but has absolutely no legal merit or validity. It reflects only the twisted, baseless views of the Arab League and the "Palestinian Authority" as well as the dozens of Islamic nations represented at the United Nations. The ICJ opinion proves how some respected jurists who had not already committed themselves to favoring the Arab cause prior to giving their opinion can be hoodwinked into swallowing nonsensical, illogical arguments, based on irrelevant UN resolutions and data that lack the force of law in deciding the issue at hand.
Yet this unconscionable advisory opinion has been praised by none other than the most revered figure in Israel Israel
The tremendous legal and political harm which these jurists have caused to the Jewish legal case cannot be rectified or reversed in a single stroke. However, a beginning can certainly be made to overcome this damage by having the Knesset pass a special law declaring that Judea , Samaria Gaza
Endnotes
1. See the volume entitled Military Government in the Territories Administered by Israel Jerusalem
2. Ibid., pp. 13, 28, 31.
3. Shamgar did make one scant reference to "liberated areas" on p. 14 of his article, but this reference was not explicitly linked to the liberated areas of the Jewish National Home, but to liberated areas in a broader or general sense.
4. Ibid., p. 28.
5. Ibid., p. 55, and also p. 453 which contains the Court's Order for Ramat HaGolan (Order 273) issued by the Military Government.
6. See Colonel Richard Meinertzhagen's book, Middle East Diary 1917-1956, Thomas Yoseloff, Publisher, New York
7. See "Myths and Facts 1978, A Concise Record of the Arab-Israeli Conflict", published by Near East Report, Washington , DC
8. The information regarding the drafting of the first two military proclamations for Judea and Samaria
9. See the case of Beit Sourik Village Council v. the Government of Israel, HCJ 2056/04 (rendered on June 30, 2004 ); see also the case of Gaza Coast Regional Council v. Knesset of Israel, HCJ 1661/05 (rendered on June 9, 2005 ).
10. The Jerusalem May 10, 2005 .
Howard Grief was born in Montreal , Canada Land of Israel Israel
This article appeared in Nativ, Volume 8, October 2005 (http://www.acpr.org.il/ENGLISH-NATIV/08-issue/grief-8.htm). Nativ is a journal of politics and the arts. It is published by the Ariel Center Jerusalem
Thanks are due Ted Belman of IsraPundit for bringing this article to our attention.
APPLYING CONSTITUTIONAL LAW TO THE 1967 LIBERATION OF JUDEA , SAMARIA GAZA ISRAEL
by Howard Grief
The five letters presented in the enclosed booklet tell a story of utmost national significance, about which few have any true knowledge. It is a historical fact that ever since
This mis-application of law, a step taken by the Eshkol Government on the basis of erroneous legal advice proffered by the then Military Advocate-General and future President of the Supreme Court, Mr. Justice Meir Shamgar, who was responsible for setting up the military administration for the reconquered areas of the Land of Israel, is the subject-matter of the five letters published here. It resulted in the pernicious Occupation Myth and provided our enemies with an enormous propaganda victory in the eyes of the world, for the term "occupation" implied that Israel had taken over by war the land of another people to which it had no right under international law, an absolutely false implication. This widespread myth then received the stamp of approval from the Supreme Court of Israel, especially from Mr. Justice Moshe Landau in the Eilon Moreh case and from recently retired President Aharon Barak in cases dealing with Israel's security fence and the implementation of the Sharon Disengagement Plan.
The author hopes that the publication of his letters to Mr. Justice Meir Shamgar, the originator of the international law thesis that gave direct rise to the Occupation Myth, despite Shamgar's intentions, will enlighten the public about the violation of law committed 40 years ago, the effects of which are felt to this very day. Recognition of this 1967 error is a vital first step in an attempt to undo the colossal legal damage done to the rights of the People and State of
Howard Grief
May 2007 |
PRESENTING THE TERMS OF THE ARGUMENT
11 Heshvan 5766 --
The Honourable Mr. Justice Meir Shamgar
Rehov Shahar 12
Dear Mr. Justice Shamgar,
Please find enclosed a copy of a letter dated November 2, 2005 I have sent to Mr. Eliezer Dembitz, in which I amplify the point why you were, in my opinion, in breach of the existing constitutional law when you conceived the plan in the early 1960s to apply international law, instead of Israeli law, to re-conquered areas of the Land of Israel and the Jewish National Home that were placed under military government.
Any reply you may wish to make would be most welcome and instructive.
Yours truly,
Howard Grief |
30 Tishri, 5766 --
Mr. Eliezer Dembitz, Attorney Jerusalem
Dear Eliezer,
Concerning our two conversations on October 31st and November 1st, 2005, I firmly adhere to my view that on June 7, 1967, when Brigadier-General Herzog issued Proclamations Numbers 1 and 2 (Proclamation on the Assumption of Power by the IDF in the Region of the West Bank; Proclamation on Law and Administration), there was a clear violation of the existing constitutional law, as of that date. Section 11B of the Law and Administration Ordinance was not enacted until three weeks later, on June 27, 1967 .
The existing relevant constitutional law that was in force on June 7, 1967, consisted of the Area of Jurisdiction and Powers Ordinance of September 16, 1948, made retroactive to May 15, 1948, and the two Proclamations issued thereunder by the Ben-Gurion Government, namely, the Israel Defense Forces Government in the Land of Israel (hereafter the Land of Israel Proclamation) of September 2, 1948, made retroactive to May 15, 1948, as well as the Israel Defense Forces Government in Jerusalem of August 2, 1948 (which I call the Jerusalem Proclamation), made retroactive to May 15, 1948.
When Israel Judea and Samaria June 7, 1967 , and Gaza June 6, 1967 , the 1948 Ordinance and the two Proclamations associated with it required the application of Israeli law, not international law. The application of Israeli law was required even though the regions were thenceforth governed by a military government, exactly as happened in 1948. Thus, when Advocate-General Meir Shamgar in the early 1960s decided long before the outbreak of the Six-Day War to apply international law concerning what he called "enemy territory" (a strange non-Jewish and non-Zionist reference to integral parts of the Land of Israel) if and when Israel acquired such territory, he was in breach of the existing constitutional law.
Two questions arise concerning Shamgar's decision to apply international law instead of Israeli law in the early 1960s, at a time when David Ben-Gurion was still Prime Minister:
1. Who gave Shamgar the right to violate the existing constitutional law on the re-acquisition of areas of the Land of Israel
2. Which government person or persons could possibly have had the authority to back Shamgar in making this decision to violate the existing constitutional law?
In the period from 1961 until June 1963, i.e., the early sixties, when Shamgar conceived his illegal plan, there was no Eshkol Government, no need to worry about demography, no pressure on Israel to apply Jordanian law to Judea and Samaria, which under Jordanian law was called the West Bank, a name subsequently changed by the Menahem Begin Government to Judea and Samaria. The only obligation then incumbent upon Shamgar was to obey the existing constitutional law.
However, Shamgar acted otherwise, contrary to the vaunted principle of the Rule of Law. He admitted in the book he edited, entitled "Military Government in the Territories Administered by Israel 1967-1980, The Legal Aspects" and published in 1982, that he wrote a comprehensive vade mecum, the Manual for the Military Advocate in Military Government, in the early sixties, when he was Military Advocate-General (1961-1968) in which he detailed the laws of war which he decided should be followed in the next war that he surmised would break out with the surrounding Arab states. His plan was then implemented several years later during and after the Six-Day War. For confirmation of this fact, I refer you to Shamgar's footnotes, numbers 25, 27 and 28 of his article in the aforementioned book, which he entitled "Legal Concepts and Problems of the Israeli Military Government -- The Initial Stage", pages 13-60. These footnotes are found on pages 25 and 27 of his article and are enclosed herewith.
As a direct result of Shamgar's conception adopted by the Eshkol Government in June 1967, every person in the world today outside Israel and indeed a very substantial number of Israel's own population call Judea, Samaria and, until very recently, Gaza "occupied territories", when they are in truth integral parts of the Land of Israel and the Jewish National Home under both Israeli constitutional law and international law, as I have made crystal clear in several past articles I have written on the subject and in my forthcoming book, The Legal Foundation and Borders of Israel under International Law. Shamgar's conception, which would never have seen the light of day had he abided by the prevailing constitutional law dating back to Ben-Gurion's day, as was expected of him, has backfired in the most hideous way: Israel is today seen as a violator of so-called international law and as an occupying power that has taken over (stolen!) another nation's patrimony, the so-called "Palestinians", a term that was formerly reserved for the Jews of the Yishuv (1920-1948) living in Mandatory Palestine, and not for a fake nation that has no right to this designation. The entire judicial travesty that Shamgar created has now been given the imprimatur of truth by none other than Justice Aharon Barak, President of the Supreme Court, in his recent decisions on Israel Judea , Samaria Gaza
As to Deputy-President Justice Moshe Landau's decision in the 1979 case of Dwaikat v Government of Israel (the Elon Moreh case), Landau misstated the legal norm that was then applicable, in June 1967. In fact, he mixed up two separate legal norms, one dealing with the imposition of Military Government over re-acquired areas of the Land of Israel Land of Israel Israel
You have received two recent articles I wrote on the subject discussed here, one dealing with the "Origin of the Occupation Myth" (published in Hebrew in the September 2005 issue of Nativ) and the other entitled "David Ben-Gurion's Forgotten 1948 Land of Israel Proclamation for the Annexation of Judea and Samaria" (scheduled for future publication). To refresh your memory and recapitulate what should have been legally done on June 7, 1967, after the liberation of Judea and Samaria from enemy occupation, instead of what was in fact illegally done by the Eshkol Government, acting undoubtedly on the proffered advice of Meir Shamgar, Zvi Terlo and others, I summarize the matter as follows:
1. In the first proclamation prepared by the Military Advocate's Unit for Judea and Samaria formally issued by Haim Herzog, the Commander of the Israel Defense Forces in this region, dated June 7, 1967, it was announced to the inhabitants living there that the Israel Defense Forces have "entered the region and assumed control", meaning that they have set up a military government there. The establishment of military government was in accordance with the 1948 Land of Israel Proclamation
2. In the second proclamation issued by Herzog, entitled "Proclamation on Law and Administration", the region over which military government was established was defined in the proclamation as the West Bank , a reference to what the Hashemite Kingdom of Jordan called Judea and Samaria West Bank , Herzog was acting unknowingly in accordance with the requirement of the Area of Jurisdiction and Powers Ordinance that said that the IDF held area must be defined by proclamation before the Ordinance could be implemented. In contrast to the 1967 Proclamation, the 1948 Land of Israel Proclamation Land of Israel West Bank ", which in any event was already a well-defined and well-known area that needed no particular delineation on a map to identify it. In both cases, defining this area was not discretionary, but obligatory, otherwise no one would have known that the IDF was in complete control of the area establishing a military government that replaced the previous government under Jordanian rule. Without such a proclamation, chaos and confusion, both at home and abroad, would have prevailed.
It is true that international law does not absolutely require the issuance of a proclamation, as soon as the territory of a foreign state is occupied by hostile forces, though it is customary for this to be done. However, the situation is entirely different under Israeli constitutional law for areas of the Land of Israel Land of Israel Land of Israel
3. Once the foregoing proclamations establishing military government in the West Bank region had been issued by Herzog on June 7, 1967, both the Area of Jurisdiction and Powers Ordinance and the Land of Israel Proclamation required the application of the law of Israel to the IDF-held region, which meant its incorporation into the State of Israel. Instead, the Proclamation on Law and Administration approved by the Eshkol Government and issued under Herzog's Command as Proclamation No. 2 applied the local law of Jordan West Bank , in accordance with Article 43 of the Hague Land of Israel Israel
It is past time to denounce and renounce what Shamgar and Landau and now Barak have done to the legal infrastructure that was created in 1948 by the Ben-Gurion Government regarding the absorption of integral areas of the Land of Israel Israel Judea , Samaria Gaza Land of Israel
Sincerely,
Howard
Howard
Copies of this letter will be sent to:
1.Professor Ya'akov Meron
2.Justice (Ret.) Meir Shamgar
3.Justice (Ret.) Moshe Landau
4.Justice Aharon Barak
5.JusticeEdmond
6.Military Judge (Ret.) Baruch Koroth
7.Professor Yuval Ne'eman
2.Justice (Ret.) Meir Shamgar
3.Justice (Ret.) Moshe Landau
4.Justice Aharon Barak
5.Justice
6.Military Judge (Ret.) Baruch Koroth
7.Professor Yuval Ne'eman
Howard Grief
Attorney and Notary
13/2 David Goitein St.,
Pisgat Ze'ev Mizrah, Jerusalem 97782 Israel
Tel. (Fax) : 972-2-656-0085
Jerusalem
11 Heshvan, 5767 -- November 2, 2006
Attorney and Notary
13/2 David Goitein St.,
Pisgat Ze'ev Mizrah, Jerusalem 97782 Israel
Tel. (Fax) : 972-2-656-0085
Jerusalem
11 Heshvan, 5767 -- November 2, 2006
Mr. Justice Meir Shamgar,
Shahar 12
96263Jerusalem
Shahar 12
96263
Dear Mr. Justice Shamgar,
I enclose herewith for your attention and perusal the letter and attached documents I have sent to the Jerusalem Post columnist, Mrs. Sarah Honig, concerning the proposed building of a Jewish cemetery on state land on the Mount of Olives, situated in the region of Judea and Samaria, the realization of which was prevented by then-State Attorney Dorit Beinisch, based on an unfounded legal opinion submitted by Attorney Meni Mazuz, prior to his being appointed Attorney-General.
This matter relates directly to your original plan in the early 1960's, long before the Six-Day War erupted, to treat any area beyond the armistice borders of the State as occupied territory governed by the laws of warfare. The Eshkol Government of National Unity accepted your plan in 1967, when Judea and Samaria were restored to the Jewish People during the Six-Day War, and invoked the Hague Rules in regard to this region. It was your advice to the Government in 1967, when you were Military Advocate-General, which created the world-wide belief that Israel was occupying the land of another country, when in truth this land (i.e., Judea and Samaria) was the sovereign patrimony of the Jewish People under both Israeli constitutional law and international law, that devolved upon the State of Israel upon its establishment. What you did has haunted Israel Land of Israel
When you launched your plan in the early 1960's, were you not aware that Israel's first prime minister, David Ben Gurion, aided by Pinchas Rosen, had set up a constitutional structure for reclaiming all parts of the Land of Israel that had earlier been transferred or otherwise lost to neighboring Arab states? For that purpose Ben-Gurion issued two separate proclamations in 1948, one pertaining to Jerusalem Land of Israel Land of Israel
1. shilton tsva-hagana le-yisrael biyrushalayim, minshar mispar 1, nittan ha-yom, kaf-vav be-tammuz 5708 -- Israel Defense Forces Government in Jerusalem
2. shilton tsva-hagana le-yisrael be-eretz-yisrael, nittan ha-yom, kaf-het be-av 5708 -- Israel Defense Forces Government in the Land of Israel
This is how places such as Nahariya, Nazareth Beersheba Ashdod Ashkelon , etc. became part and parcel of the State of Israel in 1948, even though they lay outside the boundaries of the Jewish State recommended under the United Nations Partition Plan. No special proclamation was needed for these places, for they all came under the scope and purview of the open-ended Land of Israel Proclamation Judea and Samaria Gaza Land of Israel Proclamation
The day is late to undo the damage you chiefly are responsible for, but we must try to save what is left in our possession of patrimonial Jewish lands recaptured in 1967. You would be able to help to save what can still be saved if you were to issue a public statement restating your position on the legal status of Judea , Samaria Gaza Land of Israel Proclamation
A restatement by you, as I recommend, would do much to change public perceptions, particularly in Israel Judea and Samaria
Yours truly,
Howard Grief, Attorney
Howard Grief, Attorney
1 Kislev, 5767 --
Mr. Meir Shamgar,
President (Retired) of the Supreme Court,
Rehov Shahar 12
96263Jerusalem
President (Retired) of the Supreme Court,
Rehov Shahar 12
96263
Dear Mr. Justice Shamgar,
I thank you for acknowledging and replying in the briefest terms to my letter of November 2, 2006 .
I do not find it instructive when you state that I wrote you:
(1)without a total knowledge of the facts;
(2)without bothering to check the information beforehand.
(2)without bothering to check the information beforehand.
It would have been more enlightening for me had you informed me what the true facts were in regard to the legal status of Judea and Samaria and the rest of the territories restored to the Jewish People in June 1967.
I read your article entitled "Legal Concepts and Problems of the Israeli Military Government -- The Initial Stage" in the book edited by you called Military Government in the Territories Administered by Israel, 1967-1980, the Legal Aspects, Volume 1, published in a reprint edition, 1988, by the Hebrew University of Jerusalem -- Faculty of Law and the Harry Sacher Institute for Legislative Research and Comparative Law.
In your article, you confirm the fact that everything was planned in advance as to what must be done when the IDF entered Judea and Samaria West Bank , the name of which was subsequently changed to Judea and Samaria Judea and Samaria Land of Israel
The question to be answered is: why did you give special courses teaching the laws of war when Ben-Gurion had promulgated a law and a proclamation in 1948 to apply the law of the State whenever areas of the Land of Israel November 2, 2006 , were you not aware of this law and proclamation, which were still in force when you were giving your courses? You never answered this question and it still requires an answer.
Do you think that in applying the norms and principles of international law, the Israeli Military Government set up upon your advice did the right thing? Ben-Gurion, too, set up a military government in 1948 for areas of the Land of Israel conquered beyond the UN Partition lines of November 29, 1947, but he never applied the norms and principles of international law that were applied in 1967.
I have studied the facts as they have been revealed by you in your article. I do not know what other facts you are referring to when you say I lack total knowledge of the situation in trying to understand what happened in 1967. If you would kindly enlighten me about those facts, I would be very grateful. Of course, if you truly believed in 1967 that the region of Judea and Samaria
If you held the opinion in 1967 that the supposed expectation of Arab demography overwhelming the Jewish population of Israel and the idea of possible peace negotiations with the neighboring enemy Arab states prevented absolutely the annexation of Judea, Samaria and Gaza to the State, then I can fully comprehend what motivated you in advising the application of the laws of war to these two regions, instead of Israeli law, as Ben-Gurion did not hesitate to do in 1948. Of course, I assume that you advised the Eshkol National Unity Government to adopt this course of action, because it corresponded perfectly with the plan that you formulated in the early sixties. However, your plan violated existing Israeli constitutional law (the Area of Jurisdiction and Powers Ordinance; Ben-Gurion's Proclamation of September 2, 1948 ) and therefore should have been discarded. If I am mistaken about this central point and your personal role in this matter, I stand to be corrected and would very much appreciate your response.
Yours truly,
Howard Grief
Howard Grief
19 Tevet, 5767 --
Mr. Justice Meir Shamgar,
President (Retired) of the Supreme Court,
Rehov Shahar 12
96263Jerusalem
President (Retired) of the Supreme Court,
Rehov Shahar 12
96263
Dear Mr. Justice Shamgar,
I acknowledge, with many thanks, your letter dated December 1, 2006 explaining in more detail your legal perspective on what had to be done in June 1967 following Israel's victory in the Six-Day War when the IDF took possession of various areas of the Land of Israel that were not part of the State of Israel.
For purposes of this letter, I have re-read your article entitled "Legal Concepts and Problems of the Israeli Military Government -- The Initial Stage", which only had the effect of confirming what I originally thought: your great responsibility in introducing to Judea and Samaria and the rest of the held or re-possessed territories the norms of international law pertaining to the laws of war embodied in the Hague Rules and the Fourth Geneva Convention, when this was completely unnecessary and contrary to existing Israeli constitutional law.
Inasmuch as you have divided your answer to me into several paragraphs to express various points of substance, I will follow the same format in presenting my reply:
1) In paragraph aleph, you state that "political decisions in a democratic state are not taken by a military body but by the Government". In the context of your letter, this appears to be a misleading statement because the application of international law to Judea and Samaria on June 7, 1967 was not only a "political decision", i.e., a matter of policy, but first and foremost a legal decision, since there existed at the time two constitutional laws (apart from the very important Law of Return) that directly governed the situation and that had to be complied with: the statutory law called the Area of Jurisdiction and Powers Ordinance (hereafter: Ben-Gurion's law) and the non-statutory proclamation issued under its umbrella by means of retroactivity, known as the Israel Defense Forces Government in the Land of Israel Proclamation (hereafter:the Land of Israel Proclamation or, alternatively, Ben-Gurion's Proclamation) of September 2, 1948. You state in your article (p. 46 of the First Reprint edition, 1988), that "pending a political solution", the norms that were applied to the areas not incorporated into Israel
Applying the Hague Judea and Samaria Jordan Judea and Samaria Judea and Samaria
"repeatedly admonished the Israeli legal authorities serving in the territories not to be content with the minimum standards laid down by the rules of warfare on land, but to be alert in ensuring that in any situation not foreseen or not provided for in the customary rules [of international law, i.e., the Hague Regulations] the solutions applied should accord with the consistent safeguarding of the rule of law."
Instead of admonishing the platoon officers to apply international law as it pertains to the laws of warfare in Judea and Samaria
Further evidence of your personal role in advising the application of the norms of international law to the redeemed territories was the fact that under your direction, the legal officers of the platoons were provided with "movable emergency kits" that contained precedents and forms, guidelines and instructions for implementing these norms of international law. The kit contained the manual or vade mecum, which they carried about detailing what legally had to be done in administering the military government of a particular region. This manual or ready-reference aid was written and re-edited by you long before the outbreak of the Six-Day War that required the officers of the Military Advocate's Corps to advise the Military Commander of the Region to implement the Hague Regulations and the humanitarian norms or provisions of the Fourth Geneva Convention. I quote directly from your article on this point (p. 31):
"The Manual included the full text of the vital initial enactments [of military government], in Hebrew and Arabic (e.g., Proclamations concerning the Commencement of Occupation, concerning Law and Order and concerning the Entry into Force of the Security Code; furthermore, different Orders relating to security provisions, essential services, jurisdiction in relation to ordinary criminal offences, etc.) [brackets in the original].
The above-mentioned "Proclamations concerning the Commencement of Occupation" -- your actual words -- were, according to your article, prepared by the Military Advocate's Unit on the entry of the IDF into the region originally denoted as the "West Bank " (p. 24). This Unit was under the direct command of the Military Advocate-General, i.e., yourself (p. 25). This confirms your personal role in overseeing and introducing Proclamation No. 1 on the Assumption of Power by the Israel Defense Forces in Judea and Samaria June 7, 1967 in the name of the Commander of Forces of the Israel Defense Army, General Haim Herzog, as well as Proclamation No. 2 on Law and Administration. You were therefore instrumental in advising and convincing the Government of Israel in June 1967 to apply the norms of international law to all of the territories the IDF entered and took possession of. Thanks largely to your plan and program, these territories became known to almost everyone in the world as "occupied territories" instead of what they actually represented, the restored territories and patrimony of the Jewish People as originally envisaged by international law and embodied in various documents subscribed to by the Principal Allied Powers in 1920 and 1922. Your plan and program were implemented by the Government not as a matter of law, but as a matter of policy, and has haunted the State of Israel ever since, causing it incalculable damage. This result was brought about by what appears to be your fixation on applying the norms of international law to redeemed Jewish territories, that contradicted Ben-Gurion's law and proclamation. The Government took a political decision, it is true, but it was not taken in a vacuum. As the evidence shows, i.e., the special courses you gave, the movable emergency kit with all the material it contained relating to international law, and your own articles on the subject, the government decision was based largely on faulty legal advice that was not only terribly wrong but violated the existing Israeli constitutional law, as noted above.
2) As regards your allegation in paragraph beth that I overlooked section 11B of the Law and Administration Ordinance (hereafter: section 11B), as well as section 8A(a) of the Municipalities Ordinance, it brought a smile to my lips for I discussed these two laws in detail in a 1996 Petition to Annul the Interim Agreement, submitted on behalf of eight Petitioners to the Supreme Court of Israel (HCJ 3414/96). This Petition was subsequently published in English in booklet form by the Ariel Center
In my letters to you, I did not discuss section 11B and the amended provision of the Municipalities Ordinance that you refer to, for the simple reason that they did not exist on June 7, 1967 when international law was illegally applied to Judea and Samaria June 27, 1967 , three weeks after the entry of the IDF into the region, that they were enacted by the Knesset. These laws thus have no relevance in replying to the question why Ben-Gurion's law and proclamation, which were in force on June 7, 1967 , were never invoked. Had that law and proclamation been duly adhered to by the Government, there would have been no need to enact section 11B. The enactment of the new law was completely unnecessary and superfluous. I also wonder who the people were who advised the Government to enact section 11B, rather than to enforce the existing laws that were Ben-Gurion's legacy.
3) I am very puzzled by what seems to be the unfounded distinction you make in paragraph gimmel between the purpose of the Land of Israel Proclamation (which I have also called "Ben-Gurion's Proclamation" in this letter) -- incidentally, the date of its publication in the Official Gazette is September 3, 1948, and not September 13 as your typist wrote -- and the purpose of section 11B, as well as the distinction you make in regard to Ben-Gurion's law (i.e., the Area of Jurisdiction and Powers Ordinance) between the territory included in the State of Israel and the territories held by the IDF. In all your articles, I do not find any mention of the Land of Israel Proclamation
I do not understand how you can say that the territory referred to in Ben-Gurion's proclamation differs from the territory referred to in section 11B. The Land of Israel Land of Israel
While there is no difference between the 1948 held-territories of Ben-Gurion's law and the re-conquered Land of Israel Land of Israel Land of Israel
In regard to the meaning of shetah muhzak (or any variation thereof) as used in both the Land of Israel Proclamation and Ben-Gurion's law and the term shetah kavush, I refer you to the legislative debate that took place on September 16, 1948 between the Minister of Justice Pinhas Rosen (then called Felix Rosenblueth) and Zerah Wahrhaftig, of the Ha-Po'el Ha-Mizrahi party (later the National Religious Party) -- see pp. 49-54 of the enclosed Petition to Annul the Interim Agreement (see also "Proceedings of the Provisional State Council, Sitting 18, Sept. 16, 1948, pp. 7-8). Shetah muhzak, before being corrupted by mis-translation, referred to an area of the Land of Israel May 14, 1948 . Shetah kavush, on the other hand, refers to "occupied territory" or foreign territory under the sovereignty of another state and not part of the Land of Israel
Regarding your point that the map attached to the Land of Israel Proclamation Land of Israel September 2, 1948 . All areas captured by Jewish forces, excluding Jerusalem, before this date, that were part of the Land of Israel but outside the U.N. Partition lines, such as Jaffa (captured May 13, 1948), Acco (captured May 17, 1948 after a Hagana onslaught that began 4 days earlier, that gave Israel tentative control of Acco and caused most of its Arab inhabitants to flee) and Nahariya in western Galilee (captured in May 1948 after the fall of Acco), would not have been included on a map delineated in red, signed and dated by the Defense Minister, when those areas had already become integral parts of the State of Israel by the immediate application of Israeli law. It would have been redundant to do so. Most of western and southern Galilee, destined for the proposed Arab state under the UN Partition Plan, was taken by Jewish forces between May and July 1948, including such places as Hanita and nearby villages, as well as Yehi'am, Zippori (Sepphoris) and Nazareth. These areas, located in the proposed Arab state, as also in the cases of Jaffa, Acco and Nahariya, were all included in the State of Israel, not by marking their location on a map as provided for in Ben-Gurion's proclamation, but, as already noted, by applying the law of the State to them, as provided for in Ben-Gurion's law. In this matter, due attention must be paid to the fact that once Ben-Gurion's Proclamation was issued on September 2, 1948, it was open-ended in nature and therefore applied to all areas -- apart from Jerusalem and its environs -- of the Land of Israel then not part of the State of Israel, without specifically naming these areas in compliance with Ben-Gurion's law which required a proclamation to be issued to define the area of the Land of Israel being held by the IDF.
Ben-Gurion's proclamation also provided for supplementary maps for areas of the Land of Israel held by the IDF after September 2, 1948 (see Article 1 of the Proclamation as regards its Interpretation, and Article 5 dealing with the validity of the Proclamation), a situation which would have applied to Beersheba (captured Oct. 21, 1948), Ashkelon (Majdal -- captured in October 1948 from the Egyptian army), Ashdod (Isdud -- captured in October 1948 after the Egyptian forces were cut off and the local Arabs left) and Eilat (Umm Rashrash, taken by Israel on March 13, 1949, and originally included within the UN Partition lines). Ben-Gurion's law and proclamation were definitely in force on June 7, 1967, which meant that Judea and Samaria, Gaza, the Golan Heights and the Sinai Peninsula (assuming it is part of the Land of Israel, as Ben-Gurion believed in 1956), should have been automatically incorporated into the State. That was the law, and that was not done. The Government of Israel has violated the sacred "Rule of Law" ever since.
Incidentally, I have twice written to the Ministry of Defense in Tel-Aviv to obtain the map or maps referred to in Ben-Gurion's Proclamation of September 2, 1948 . They sent me a copy of the map attached to the Jerusalem Proclamation of August 2, 1948 but could not locate the map or maps attached to the Land of Israel Proclamation September 2, 1948 . If you have the citation for obtaining the latter map, I would greatly appreciate getting it from you, to enable me obtain this map.
4) There is no disagreement as far as paragraph daleth is concerned, relating to the Jerusalem Proclamation of August 2, 1948, that was also promulgated by Prime Minister and Defense Minister David Ben-Gurion.
5) In paragraph heh you mention your position about the inapplicability of the Fourth Geneva Convention. Though you hold this position in theory, you as a judge -- and the Government as a matter of policy -- actually implemented the humanitarian provisions of the Fourth Geneva Convention in practice, especially its penal provisions. There seems therefore to be a great contradiction between what you profess to be the situation in law and what you actually did in conforming to the Convention during your terms of office as Military Advocate General, Attorney-General and Supreme Court Justice. In fact, it would have served no purpose for you to give courses on the Fourth Geneva Convention in anticipation of a possible war and also have the Convention included in the movable emergency kit of each platoon officer in the Military Advocate's Corps -- if you, as the superior in charge, did not think that the Convention applied. Why prepare these legal officers regarding the ins and outs of the Convention if it was inapplicable to the regions of the Land of Israel
You were meticulous in assuring the rights of Arabs in the held or repossessed territories and in urging the Government to grant them a right of appeal to the Supreme Court, even though such rights have never been granted to enemy aliens in the courts of other countries. You were so concerned with the observance of the Geneva Convention de facto and applying the norms of international law, but at the same time you did not express any special concern about preserving the Land of Israel
To my thinking, it should have been inconceivable or repugnant for you as a former member of the underground movement in pre-State Israel, the Irgun Zvai Leumi, who supposedly was not hindered by a ghetto mentality, to be so ready to honour the Arabs of Judea and Samaria, who wanted nothing more than to destroy the Jewish State, by gratuitously applying to them the norms of international law so that they were thus able afterwards to protest vociferously the settling of Jews in this region as being "illegal" and to denounce Israel's so-called "occupation" of "their" land. By applying the Convention to the local Arabs, they were also empowered to claim the status of "protected persons" under the Convention, and this in turn allowed the International Committee of the Red Cross and the hostile United Nations to monitor their treatment and intervene in Israel Land of Israel Judea and Samaria Land of Israel
These are simple truths that you and your fellow justices on the Supreme Court should be truly remorseful for. You undoubtedly and understandably do not like to hear or read what I have to say on this subject, but this is the terrible end result of what you and your colleagues on the bench caused the people of Israel Land of Israel
6) In paragraph vav of your letter, you seem to take liberties with Ben-Gurion's view of retaining Judea and Samaria Jerusalem
Ben-Gurion uttered this opinion when he was no longer active in public life and had already begun to fall ill, according to what the late Professor Yuval Ne'eman, who knew him well, told me. On other occasions, he expressed a diametrically opposite opinion, once in 1937 and once again in 1956. In 1937, at the 20th Zionist Congress (August 3-16, 1937, Zurich), he gave a speech at Basel
No Jew is entitled to give up the right of establishing (settling) the Jewish nation in the Land of Israel
In 1948, when Ben-Gurion became Prime Minister of the State of Israel, he provided for the eventual expansion of the boundaries of the State to encompass all of the Land of Israel Land of Israel Proclamation
On November 7, 1956 , Ben-Gurion delivered an address to the Knesset which is sometimes called his "Third Kingdom of Israel" speech, although he did not use those actual words. In that speech, coming after the capture of the Sinai Peninsula in a seven-day campaign code-named Operation Kadesh, Ben-Gurion stated clearly and repeatedly that Israel land of Egypt
As I write this letter, the former long-serving Mayor of Jerusalem, Theodor (Teddy) Kollek, has passed away. In reading his obituary, I noticed a striking parallel between the position he held for many years in regard to Jerusalem Land of Israel Jerusalem Israel Jerusalem Land of Israel Israel
Despite Ben-Gurion's change of heart in 1967, I prefer to think of him as a pragmatic exponent and loyalist of the Land of Israel who was loath to surrender any part of the Land of Israel unless compelled to do so under duress, as occurred in 1956 immediately after the capture of Sinai and Gaza. John Foster Dulles, the then-U.S. Secretary of State, threatened to cut off all financial aid to Israel Israel Russia Israel Gaza Egypt Land of Israel Land of Israel Land of Egypt
I wish to conclude my letter by referring to the 1979 landmark case of Dvikat (or Dwaikat) v. Government of Israel et al., famously known as the Elon Moreh case, that you favourably cite in your article. This judgment, rendered by Deputy-President Moshe Landau, is a judicial travesty directly traceable to your doorstep, that serves today as a pillar for labeling Judea and Samaria Land of Israel Proclamation Land of Israel Judea and Samaria Judea and Samaria Land of Israel Proclamation June 7, 1967 by Brigadier-General Haim Herzog which, he thought, exclusively determined the legal status of Judea and Samaria July 5, 1950 , which overrides the Hague Regulations that permit requisition of land only for military needs. The Law of Return and Article 6 of the Mandate for Palestine sanction Jewish settlement not merely on land located in the State of Israel, whether publicly or privately owned or simply ownerless, but also in the rest of the Land of Israel, outside the State's boundaries, in IDF or Jewish possession, as indicated by use of the Hebrew word artza in section 1 of the Law of Return and also by what Ben-Gurion said in personally introducing this law in the Knesset on July 3 and July 5, 1950. When Ben-Gurion explained that every Jew has the right to come and settle in Israel, he certainly did not mean to limit this right to the existing boundaries of the State of Israel, otherwise the Law of Return, read in conjunction with the Area of Jurisdiction and Powers Ordinance and the Land of Israel Proclamation, would have made no sense nor served any purpose. When Ben-Gurion further said that this right was recognized in the law of nations and existed even before the State did, and was, in fact, that which built the State, he undoubtedly had in mind Article 6 of the Mandate for Palestine Land of Israel Land of Israel Land of Israel
The recently retired President of the Supreme Court, Justice Aharon Barak, has proceeded along the same path as Justice Landau and gone even further, basing several of his recent judgments on the false premise that Judea and Samaria are governed by the rules of belligerent occupation, including the Fourth Geneva Convention and even the Geneva Protocols of 1977, which eradicates the rights of the Jewish People and its assignee, the State of Israel, to Judea, Samaria and -- formerly -- Gaza. This I stress and repeat is the dire consequence of your original plan and program to apply the norms of international law to the areas of the Jewish homeland lying outside the technically temporary borders of the State. I have written to Justices Landau and Barak in the same vein that I wrote to you, even sending Justice Landau a copy of Ben-Gurion's Proclamation, but neither he nor Justice Barak have bothered to respond or even acknowledge my letters.
With all due respect to you as a learned and eminent judge and jurist, I ask you once again in all earnestness to reconsider and restate your position on the legal status of Judea and Samaria Israel the Hague Judea and Samaria
In closing, I may not know, as you state, all the facts of inner government workings and decisions that took place in 1967 as I was not privy to them, as you were. Your reproach that I also lack knowledge of the relevant law to support my position is refuted, as can be judged by this letter and my published Petition. Anyone, like myself, who has observed and studied the results of what was done by the decision-makers of that time can only gasp in disbelief at the errors and violations of law that were made at the highest levels. Instead of following Ben-Gurion's wise and patriotic path as expressed in the laws he was responsible for enacting in 1948 and 1950, that embraced the Land of Israel as the eternal treasure and patrimony of the Jewish People, the Eshkol Government and you included appear to have embraced a non-Zionist, bizarre and illegal policy to treat the Land of Israel as part of foreign territory, the rights to which were viewed, in the eyes of most people in the world, as being vested not in the Jewish People but in Arab pretenders. This shame must be expunged, and you, who inspired the application of international law to liberated Jewish territories, are the one person who can make that happen!
Yours truly,
Howard Grief
Howard Grief
Howard Grief
Attorney and Notary
13/2 David Goitein St.,
Pisgat Ze'ev Mizrah, Jerusalem 97782 Israel
Tel. (Fax) : 972-2-656-0085
Attorney and Notary
13/2 David Goitein St.,
Pisgat Ze'ev Mizrah, Jerusalem 97782 Israel
Tel. (Fax) : 972-2-656-0085
9 Adar, 5767 --
Mr. Justice Meir Shamgar,
President (Retired) of the Supreme Court,
Rehov Shahar 12
96263Jerusalem
President (Retired) of the Supreme Court,
Rehov Shahar 12
96263
Dear Mr. Justice Shamgar,
I thank you for your letter of January 21, 2007, and for the time you have evidently taken to present further explanations and elaborations of your position in regard to the exact meaning of the Area of Jurisdiction and Powers Ordinance of September 22, 1948 (hereafter: the AJPO) and the proclamation validated by the AJPO, namely, Proclamation No. 1 of the Israel Defense Forces Government in the Land of Israel, of September 2, 1948 (hereafter: the Land of Israel Proclamation). I sharply disagree with your interpretation of these two constitutional enactments by the Provisional State Council and hereby provide you again with my own exposition as to their true meaning and import.
My first disagreement with you centers on your argument that the "area of application of law" is not the same as "an area within the State of Israel". This distinction of yours harks back to an old legal controversy that has been dealt with in the case-law of the Supreme Court and the legal literature. Please see the excellent article pertaining to this controversy in regard to the Golan Heights Law of December 14, 1981 and the Law and Administration Order (No. 1), 5727-1967, in regard to eastern Jerusalem, applying Israeli law to both these territories -- written by Professor Asher Maoz of Tel-Aviv University, Faculty of Law (Asher Maoz, "Application of Israeli Law to the Golan Heights is Annexation", Brooklyn Journal of International Law, 1994, Number 2, pp. 355 to 396). The opposite view is taken by Professor Leon Sheleff in an adjoining article ("Application of Israeli Law to the Golan Heights is not Annexation", op. cit., pp. 333 to 353).
The distinction that you cite between the "area of application of law", which is the heading of section 1 of the AJPO and the "area of the State of Israel" was explained by the Minister of Justice, Pinchas Rosen (then Felix Rosenbleuth), in the legislative debate on the AJPO that took place on September 16, 1948 (the 12th of Elul, 5708), at the 18th Session of the Provisional State Council. Here is what Rosen said about this law (in English translation):
"By virtue of this law, we are setting up a kind of administrative unity by creating a concept which is in the nature of a legal fiction, which is 'the whole of the area' -- ha-shetah ha-kolel, -- also to be translated as "the over-all area" or "the comprehensive area" [defined as] an area including both the area of the State of Israel and the re-possessed area or the held area [please note: I translate the Hebrew term ha-shetah ha-muhzak as either the "re-possessed area" or "held area"; the "re-" as used in "re-possessed" means that that area of the Land of Israel was part of the Jewish National Home that was restored to the Jewish People and the State of Israel; for the same reason I use the word "re-conquered" and never "conquered" to refer to the territories restored in 1967]. And this law states that a person appointed to any position [or office], meaning principally a central or high position -- le-tafkid merkazi -- who is located in the area of the State, will be competent to act also in the re-possessed (held) area. Were it not for this law, doubts might arise, whether, for example, the Attorney-General is able to institute lawsuits and criminal complaints in Nazareth Jerusalem Jerusalem
For the purpose of clarifying the situation and for removing all doubts, we have found it proper, and the Legislation Committee has approved this position, to propose to the [Provisional State
Further on in the legislative debate, Pinchas Rosen replied to a proposed amendment made by Zerah Warhaftig of the Ha-Po'el Ha-Mizrahi party, who asked that the words in sections 1 and 2 of the AJPO, i.e., "the area including both the area of the State of Israel and also any part of Palestine [Eretz-Israel], etc." be deleted and replaced by the words "any law applying to the whole of the State of Israel shall be deemed to apply to any part of Palestine [Eretz-Israel] which the Minister of Defense has defined by Proclamation as being held, etc.". Warhaftig's proposed amendment was rejected by Rosen and the Provisional State Council, on the ground that the Land of Israel Proclamation of September 2, 1948, issued two weeks before the discussion on the AJPO took place, said exactly what Warhaftig was proposing and therefore there was no need to repeat the same thing in the law. Rosen added the following comment concerning the need to enact the AJPO:
...For purposes of administration and law, there is a need for an innovation regarding what was said in the Proclamations [these Proclamations to which Rosen referred were the Jerusalem Proclamation of August 2, 1948 and the Land of Israel Proclamation September 2, 1948 , both of which were validated by the AJPO]. There is a need to create the concept of an area, which includes the held area -- ha-shetah ha-muhzak -- and the area of the State -- hetah ha-medina.
From the foregoing two quotations of Pinchas Rosen, we learn the real reason why an apparent distinction was made between the "area of application of law" and the "area of the State". It was for the purpose of creating a uniformity of law as well as an administrative unity between these two areas. The totality of the two areas -- described in the AJPO by the term "the whole of the area" -- was, according to Rosen, a "legal fiction", an "innovation" or a new legal "concept". This concept of the "whole of the area" covered not only the area of the State of Israel allocated in the U.N. General Assembly Partition Plan of November 29, 1947, but also part of the area that was intended for inclusion in the proposed Arab State but was re-possessed by the IDF in the War of Independence, to which was also added the city of western Jerusalem and its approaches. This new concept was, in my opinion, a "sleight of hand", or clever deception to mislead the U.N. by feigning compliance with the Partition Resolution that the Jewish Agency had accepted before the State was proclaimed. By phrasing the AJPO in this way, it gave Israel Israel Jerusalem Nazareth Land of Israel
If we are to accept your interpretation of the AJPO and the two proclamations of August 2, 1948 and September2, 1948 that the application of Israeli law to any area of the Land of Israel outside the U.N. Partition line was not equivalent to making that area a part of the State of Israel, then western Jerusalem and its approaches would not have been part of the State as soon as it came under Israel's full control. Nor would Jaffa Nazareth Beersheba Ashkelon and Ashdod Land of Israel
1. by marking a map of the Land of Israel in red with the names of the re-possessed areas, as was done in the specific cases of Jerusalem, Lod and Ramla, in conformity with the method set out in the Jerusalem Proclamation and the Land of Israel Proclamation;
2. by application of the law of the State to the repossessed area, without delineating this area on a map of the Land of Israel, as also provided for in the aforementioned Proclamations, as well as in the AJPO. Concerning this method, I venture to say that the words "defined by proclamation" -- asher sar ha-bitahon higdir otan be-minshar ke-muhzak 'al-yedei tzva-hagana le-yisrael -- as appears in sections 1 and 2 of the AJPO are a direct reference to any past (the two proclamations already issued) or future proclamations applying the law of the State to the held areas wherever situated in the Land of Israel beyond the U.N. Partition line.
The phrase "area of application of law" was a euphemism or semantic invention to conceal the fact that the repossessed areas were being annexed to the State of Israel. The name of the law -- the AJPO -- did not reflect its true purpose. It was really intended to be a law of annexation, as proved by the result that followed its implementation, but was adroitly drafted by Rosen and his team in the Ministry of Justice as a law to extend Israel Land of Israel
Applying the law of the State to an area not previously included within it is certainly an act to assert sovereignty over that area, or, as Justice Haim Cohn called it, "an act of state" (quoted in the article by Professor Maoz, p. 361, footnote 31; see also p. 369, footnote 71). The consequence of this act of sovereignty is to join that area to the State of Israel. According to Justice Cohn (as quoted by Professor Maoz):
Both the proclamation of the Minister of Defense according to the Order issued in 1948 and the order of the government according to the law passed in 1967, are both acts of state par excellence, and as such require prior consideration as well as a political decision, for both of the actions were intended to convert the areas to which they related into part of the area of the State of Israel.
The citation for Justice Cohn's statement is given by Professor Maoz as: The Status of Jerusalem in the Legal System of the State of Israel, 1967-1987, at 246, 249 (Joshua Prawer & Ora Ahimeir, eds., 1988), reprinted in 1 HAIM H. COHN SELECTED ESSAYS 361 (1991).
An act of state is defined as an assertion of sovereign power by the Government on the international level, and this is exactly what occurred when Israel
Justice Cohn had apparently changed his mind on this subject, for in an earlier statement he made in the case of Ravidi v. Military Court, Hebron Zone, [24] 2 P.D. 419 (1969), he stated:
the thesis that the application of Israeli law to a particular area, is equivalent to the annexation of the area to the State of Israel still requires proof. In the Justice's opinion "there is ...nothing to prevent the application of the law of Israel
What Justice Cohn said in the Ravidi case in 1969 would agree with your own distinction, but what he later said in his above-quoted article in 1988 agrees with my opinion that annexation is the legal result of applying Israeli law to an area of the Land of Israel
In this regard, Professor Maoz also cites the statement of Justice Yitzhak Kahan in the above-noted Ravidi case as to the consequence of the government order under the Law and Administration Order (No. 1), 5727-1967 applying Israeli law to eastern Jerusalem that had been illegally ruled by Jordan from May 15, 1948 to June 7,1967.Justice Kahan maintained that eastern Jerusalem was annexed to the State of Israel as a result of the application of Israeli law to eastern Jerusalem, a statement which "echoed opinions voiced by other justices of the Supreme Court" (pp. 361-362 of Prof. Maoz's article). The "other justices" mentioned by Prof. Maoz included Justice Halevi, Justice Berenzon and President Justice Agranat. Moreover, a majority of constitutional or academic jurists in Israel Jerusalem
After the judgment rendered by Justice Barak in the case of Awad v. Prime Minister and Minister of the Interior, [42] 2 P.D. 424 (1988), it is now settled case-law that the application of Israeli law, jurisdiction and administration to any area of the Land of Israel, outside its present borders, effectively annexes that area to the State, making it a part thereof, whether the area in question is eastern Jerusalem, the Golan Heights or any other area of the Land of Israel.
That also appears to be the strong underlying assumption of the new law passed in 1999 entitled the Law and Administration Law (Cancellation of the Application of the Law, Jurisdiction and Administration), 5759-1999: hok sidrei ha-shilton u-mishpat - bittul hehalat ha-mishpat, ha-shipput ve-ha-minhal, 5759. Under this law, a decision taken by the Government as set down in an international treaty or agreement, the purpose of which is to cancel or withdraw the application of the law, jurisdiction or administration of the State of Israel to an "area", as it is termed simply in the law, presumably an area located anywhere in the State, needs both the approval of the majority of the Knesset members, as well as the approval of the majority of votes cast by the participants in a public referendum or plebiscite. The entire basis of this law is to remove or "de-annex" a pre-existing "area" from the State to which the law, jurisdiction and administration of Israel
One final observation concerning the definition of "an area of the State of Israel" should be brought to your attention. This phrase was actually defined in the 2001 law called the "Denial of the Right of Return Entrenchment Law" -- hok shiryun shelilat zechut ha-shiva, 5761 -- as follows:
Area of the State of Israel: "an area located within the borders of the sovereign rule of Israel
In my opinion, this would equate the "application of law" to an area of the State of Israel with the sovereign rule of Israel
I have written elsewhere that Israeli sovereignty also extends to Judea , Samaria Gaza Land of Israel Proclamation Judea , Samaria Gaza April 25, 1920 , but the regrettable fact is that the State of Israel has never formally acknowledged or asserted its own inherited sovereignty over these areas. I treat this subject in my forthcoming book on The Legal Foundation and Borders of Israel under International Law, and therefore refrain from further discussing this question here.
The fact that the AJPO was amended in 1956 to include section 2 A, which uses the expression "shall be deemed to be part of the area of the State of Israel" in regard to any vessel (ship) or aircraft, wherever situated, does not prove what you strongly impute to it, that the legislator deliberately avoided the use of the same expression in AJPO as is found in section 2A, because "the area of application of law" was not tantamount to "the area of the State of Israel". However, in the case of a ship or aircraft, an express identification was needed to prove that the ownership of the vessel or aircraft was that of the State of Israel and not of another, foreign state, for the purpose of determining the jurisdiction of the courts of Israel in the event that a crime is committed on board the vessel or aircraft or if a lawsuit for damages was brought by an injured passenger or his heirs, etc. This case obviously differs from sections 1 and 2 of the AJPO where the law is talking about dry land and not about movable property (wood and iron) located outside the boundaries of the State. The legislator acted wisely in identifying these carriers or public conveyances as being a part of the State of Israel, to remove any doubts about their legal status. Consequently, an attack on an Israeli vessel or aircraft that takes place outside Israel
You tell me in your letter that only the Government of Israel has the authority to decide if an area or region of the Land of Israel
It is not my intention or wish to embarrass you about who originated the term the "held areas" -- shetahim muhzakim -- but it was first used in 1948 in the two afore-mentloned Proclamations and could not therefore have originated with you. You can verify for yourself that this term was specifically defined in section 1 of Proclamation No. 1 of the IDF Government in the Land of Israel Jerusalem Israel Palestine
English translations of the Hebrew legal terms shetah muhzak and shetah kavush are, it is agreed, irrelevant from the point-of-view of Israeli law, but on the contrary they are of utmost importance from the point-of-view of international law and also popular understanding of what Israel did in 1967. Had the term shetah muhzak been correctly translated as a "held area" and not as an "occupied area", there would probably not have arisen such a fierce world outcry against Israel Israel United States Land of Israel Land of Israel Proclamation
I also take issue with your statement that the law in force in Israel on September 22, 1948, the date when the AJPO came into operation, was completely identical to the law that applied in the other areas of the Land of Israel which were part of the Mandate, the implication being that it did not matter whether Israeli law or international law was applied since they were both the same. This is an intriguing argument, but it, too, falls apart upon closer examination. First, the corpus of law in the new State of Israel was not identical to the pre-existing law, because important changes were introduced right at the inception of the State of Israel, as set out in section 13 of the Law and Administration Ordinance and also in the Proclamation issued by the Provisional Council of State on May 14, 1948 that accompanied the Declaration of the Establishment of the State. These changes were necessitated by the continued existence of several provisions of laws dating from the White Paper of May 17, 1939, that would have remained in force had not the new legislative authority, the Provisional State Council, declared them null and void. These provisions of law were: sections 13 to 15 of the Immigration Ordinance, 1941; Regulations 102 to 107C of the Defence (Emergency) Regulations, 1945; and the Land Regulations, 1940. In addition, the Law and Administration (Further Provisions) Ordinance of July 1, 1948 stated as follows:
Construction of laws
Section 2: For the removal of doubts it is hereby declared:
Section 2: For the removal of doubts it is hereby declared:
(a) where any law enacted by or on behalf of the Provisional Council of State is repugnant to any law which was in force in Palestine on the 5th of Iyar, 5708 (14th May, 1948), the earlier law shall be deemed to be repealed or amended even if the new law contains no express repeal or amendment of the earlier law.
By passing this kind of legislation the Provisional State Council made it clear that the body of law that was in force prior to the establishment of the State was not identical to the law that existed afterwards.
Moreover, if international law had been applied to the "held areas" in 1948, instead of the law of the State, this would have created the same type of legal damage and controversy as occurred in 1967 when this is what was actually done, apparently on your advice and based on your preparatory work. The laws and customs of war as embodied in the Hague Rules of 1907 would then have applied to all territories beyond the UN Partition line for the Jewish State held by the IDF, based on the premise that they were "occupied territories" or were acquired through war, especially if the Arab state proposed in the Partition Plan had come into existence in the areas not held by the IDF, or also if Trans-Jordan, as Jordan was then called, had purported to act on behalf of this aborted Arab state. In seizing the land allotted for the proposed Arab state under the UN Partition Plan, the Arab state of Trans-Jordan effectively replaced the aborted Arab state with the consent of the Arab notables living in Judea and Samaria, thus giving it a supposed right to argue that "Arab land" held by Israel that had been earmarked for the Arab state was being occupied by the Jewish State under the Hague Rules of international law. We are talking here only of theoretical possibilities, but since you raised this subject, a future mess could have been created if the Government of Israel had acted in 1948 as it did in 1967 by applying international law to areas of the Land of Israel not included in the State's boundaries under the UN Resolution of November 29, 1947.
Of course, Israel August 2, 1948 and September 2, 1948 , but it cannot be denied that this kind of Arab complaint supported by the U.N. could have theoretically popped up and weakened Israel Land of Israel
In summary, this application of Israeli law to the held areas avoided the application of British Mandatory enactments that were discriminatory against Jews and contrary to the provisions of the Mandate, and also avoided the possible invocation of the Hague Rules to the held areas, or as the Arabs may have called them, the "occupied areas" of the proposed Arab state, seized by Transjordan in the name of that state.
As to section 2 of the AJPO, this provision extends Israel
In our correspondence, I have staked my whole argument as to why the law of the State had to be applied in regard to all areas of the Land of Israel Land of Israel Proclamation January 21, 2007 you adopt a very restrictive view of the meaning of this pivotal Proclamation when you affirm that it related only to Ramla and Lod and that my assumptions regarding the scope of its applicability have no factual foundation. You base your interpretation on the map attached to this Proclamation which depicted only Ramla and Lod. However, if we take a good look at the legislative debate on the AJPO and also examine the language of the text of the Land of Israel Proclamation
In the legislative debate on the bill containing the AJPO before it became law, the following are the exact words of Justice Minister Pinchas Rosen explaining its meaning and scope:
pekuda zo, she-'avra et va'adat ha-hakika ve-ushra 'al-yadah peh ehad, ba'a kedei le-faresh uke-hashlim et ha-minsharim, she-lefihem hutal hok ha-medina 'al ha-shetahim ha-muhzakim/ attem be-vaddai zokhrim ahe-pursemu shnei minsharim ka-elleh, minshar ehad she-hetil et hok ha-medina 'al shetah yerushalayim, u-minshar sheni she-hetil et hok medinat yisrael 'al yeter ha-shetahim ha-muhzakim.
In the above-quoted paragraph, Rosen states explicitly, first that the Jerusalem Proclamation imposed the law of the State on the area of Jerusalem Land of Israel Proclamation Jerusalem Nazareth August 2, 1948 , and the latter -- by the Proclamation of September 2, 1948 . He does not specifically mention Ramla and Lod, but they are naturally included when he refers to "the rest of the held areas". Zerah Warhaftig, who participated actively in the debate, mentions the area of Jaffa May 13, 1948 , two days prior to the establishment of the State, after its Arab inhabitants abandoned the city.
Warhaftig also spoke directly about the question whether or not the held areas outside the U.N. lines were part of the State. Here is what he said on the subject:
shama'nu kama hatzharot bishivot mo'etzet-ha-medina u-mi-hutza lah mi-pi sar ha-hutz ve-gam mi-pi rosh ha-memshala 'atzmo, she-anahnu lo kibbalnu et ha-gevulot shel kaf-tet be-November ke-muhlatim, ve-she-be'ekev ha-devarim she-halu me-az ve-'ad ha-yom nidrosh shinui ba-gevulot im ha-davar yuva bifnei ha-um. be-khol ofen, ha-shetahim ha-nimtza'im mi-hutz la-gevulot halalu einam mi-hutz li-gevulot medinat yisrael. yeshnam sham halakim she-yihyu kelulim bim'dinat yisrael.
There was no doubt in Warhaftig's mind that Jerusalem, Jaffa, Nazareth and the rest of the held areas were part of the State of Israel and that the provisional borders of the State as delineated in the UN Partition Plan no longer coincided with those borders, but had been expanded to include the held areas.
It will be recalled, as previously discussed in this letter, that Warhaftig wanted to amend the bill for the AJPO to include the words "any law applying to the whole of the State shall be deemed to apply to all parts of the Land of Israel Land of Israel Proclamation Land of Israel Proclamation Land of Israel
In addition to the foregoing evidence of the wide scope of the Land of Israel Proclamation Land of Israel Jerusalem Land of Israel
Moreover, Article 1 of the Land of Israel Proclamation refers to the held areas that may be delineated on any other map replacing the map attached to the proclamation of September 2, 1948, and the concluding part of Article 5 refers to the held areas the possession of which passed to the IDF afterwards, i.e., after September 2,1948. The wording of the proclamation in Articles 1 and 5 makes it evident that it applies to all areas held by the IDF that were either recovered in battle or abandoned or surrendered by their Arab inhabitants, whether such areas were re-captured prior to September 2, 1948 or after that date, and not just to the held areas of Ramla and Lod.
It seems to me that the delineation of areas re-conquered by the IDF as shown on a map of the Land of Israel and then incorporated into the State was a makeshift or temporary method, that was replaced by a better method for accomplishing the same purpose, which was simply to apply the law of the State to the held areas, as provided for in Article 2 of the Land of Israel Proclamation and Article 1 of the AJPO. This is exactly what happened when Beersheba Ashdod Ashkelon were repossessed by the IDF more than a month after the Proclamation was originally issued. There is no disputing the fact that this proclamation, the scope of which I have shown is open-ended, applied to these newly re-conquered areas and would also have applied to other areas of the Land of Israel such as Ramallah or Hebron or, for that matter, to all of Judea and Samaria had they too been re-conquered in the War of Independence. The same method of annexing areas of the Land of Israel Judea and Samaria Land of Israel Israel Land of Israel
Moving on to your next point, you refer to "the end of section 3 of the Ordinance" as being derived from customary public international law. This provision of law validated retroactively all acts done "which but for the provisions of this Ordinance would be without effect". This section validated the two proclamations issued by the Minister of Defense, which extended the law of the State to all the held areas. However, I am mystified by your statement that section 3 represents customary public international law. In any event, I agree with you that customary international law is part of the law of the State which is taken from English common law. This is independent of the fact that the Hague Rules, having the status of customary international law, were inapplicable to any area of the Land of Israel re-conquered by the IDF, both in 1948 and in 1967, since such areas were not occupied lands governed by international law.
As to your final point, you reiterate that section 11B of the Law and Administration Ordinance, 1948 deals with the inclusion of territory in the State of Israel, in supposed contrast to the AJPO which, in your opinion, does not. I believe that in its essence Section 11B is hardly different from the AJPO, except that the former is implemented by the Government as a whole and is optional in nature, while the latter is implemented by the Minister of Defense on behalf of the Government and is mandatory. Section 11B never explicitly states that an area of the Land of Israel
On this point, you justify your position by referring to the statement made by the Minister of Justice, Ya'akov Shimshon Shapiro, in the Knesset debate when section 11B was presented as an amendment to the Law and Administration Ordinance. I have read Shapiro's speech. He said in effect that to join an area of the Land of Israel to the State, in particular to an existing municipality under section 8A(a) of the Municipalities Ordinance, an act of sovereignty was required, and that could be accomplished by applying the law of the State to any part of the Land of Israel actually under the de facto control of the State. What Shapiro was saying in 1967 -- about applying Israeli law, jurisdiction and administration to liberated areas beyond the borders of the State was really no different from what Rosen said in 1948 about applying Israeli law and administration to the held areas. Shapiro was even more emphatic than Rosen in this matter because he said that not only had the IDF taken control of considerable, but not contiguous areas of the Land of Israel in the Six-Day War, but had "liberated" them "from the yoke of foreigners" ...
...hu she-tzva hagana le-yisrael shihrer me-'ol zarim halakim nikkarim me-eretz yisrael, lav davka retzufim' ve-ha-nimtza'im zeh le-ma'ala mi-shevu'ayim bishelitat tzahal
To conclude this letter, I feel I understand fully your reluctance to admit any error in your legal position affecting the Land of Israel
You have also greatly influenced other members of the judiciary, particularly Justices Moshe Landau and Aharon Barak in their judgments that served to reinforce your original view that the liberated Jewish territories of Judea and Samaria
I continue to hope that you will realize the truth of what I have written and will decide to act accordingly.
Yours truly,
Howard Grief
Howard Grief
Editor's Comment: For technical reasons words originally written in Hebrew have been transliterated. The original Hebrew may be obtained by writing Attorney Grief at 13/2 David Goitein St. Jerusalem Israel
From Yoel Lerner,
Editor of the "Howard Grief Eretz-Israel Letters"
The Howard Grief Letters to Meir Shamgar, being one side of the correspondence conducted by the author, a Jerusalem attorney specializing in Israeli constitutional law and international law regarding Eretz-Israel, and Meir Shamgar, President (Emeritus) of the Israeli Supreme Court, focus on the part played by the latter in the crucial years between 1961 and 1968 when Shamgar served as Military Advocate General and Israel came into de facto possession of much of the land outside the borders of the State but already allocated to the Jewish People at the conclusion of the First World War in the global settlement that brought into existence many states in South East Europe as well as in the predominantly Arab Middle East. These Letters, written in the English language in which Howard Grief expresses himself most eloquently, provide the basis for a desperately-needed thorough revision of the Israeli legal treatment of Yehuda v'Shomron --
The Howard Grief Letters to Meir Shamgar were written in two stages, the first being an abortive stage (November 2005) where Attorney Grief sent President (Emeritus) Shamgar a copy of a letter he had written to a mutual acquaintance, Mr. Eliezer Dembitz, a former Military Court Judge appointed to his post by Shamgar himself, "in which [Grief] amplif[ies] the point why [Shamgar] was... in breach of the existing constitutional law when [he, Shamgar] conceived the plan in the early 1960s to apply international law, instead of Israeli law, to re-conquered areas of the Land of Israel and the Jewish National Home," actually repossessed in 1967. No comment on the contents of the letter, with which the Correspondence begins, was forthcoming from President Shamgar at that time.
The second and far more fruitful stage of this unique Correspondence began a year later when Howard Grief wrote directly to President [Emeritus] Shamgar. Shamgar's reply initiated a fascinating exchange of letters and of thoughts that took place over a period of several months. It was President [Emeritus] Shamgar's categorical objection to the publication of the letters he himself had contributed to the Correspondence that led to the decision to publish Howard Grief's letters in the present format. The discerning reader will be able to reconstruct many of the arguments made by President [Emeritus] Shamgar, to which Howard Grief has responded.
Yoel Lerner, Editor
April, 2007 |
Howard Grief was born in Montreal, Canada, educated in law at McGill University Land of Israel Israel
He formulated the original thesis that sovereignty over the entire Land of Israel and Palestine was devolved upon the Jewish People at the San Remo Peace Conference in April 1920 as part of the global settlement that dismembered the Ottoman Turkish Empire and created the Middle Eastern states of today; as a consequence, the British White Papers published during the Mandate period, as well as the UN General Assembly Partition Plan of 1947, were illegal. He is the author of two forthcoming books on The Legal Foundation and Borders of Israel
The "Howard Grief Eretz-Israel Letters to Meir Shamgar, 2005-2007 -- on Eretz-Israel and Israeli Constitutional Law" edited by Yoel Lerner was published by the Office For Israeli Constitutional Law (Registered Amuta), Iyar 5767 -- May 2007. It was submitted to Think-Israel
[Editor's note: You can read Howard Grief, "The Origin of the Occupation Myth," by clicking here. And his article on "Legal Rights and Title of Sovereignty of the Jewish People to the Land of Israel Palestine
IS ISRAEL
by Howard Grief
PART 1. A LEGAL DISCOURSE ON OCCUPATION
It was a nerve-racking experience to attend an international conference of distinguished jurists on "Forty Years after 1967: Reappraising the Role and Limits of the Legal Discourse on Occupation in the Israeli-Palestinian Context", held on June 5-7, 2007 in Jerusalem Israel West Bank " and Gaza Israel Bar-Ilan University
The only conclusion that can be drawn from this Conference is that the Law Faculties of Israeli Universities are filled with professors and legal scholars who advocate the Arab case concerning the "occupation", and who have indoctrinated their impressionable students with the same injurious views. By railing against the "occupation", the legal scholars who populate the law faculties libel and berate their own country and encourage foreign scholars to join in the castigation of Israel Israel
It is becoming more and more difficult to refute the falsehood of "occupation", because this unfounded accusation has been given credence by no less an august institution than the Supreme Court of Israel. Beginning principally with the 1979 Eilon Moreh case and extending to recent cases involving the erection of the security fence and the Disengagement Implementation Law, the Court has affirmed that Israel is indeed an Occupying Power in Judea, Samaria and Gaza and governs these territories by virtue of the rules of belligerent occupation, exactly as Arab leaders have maintained. To overturn this libelous falsehood, it would require a special law to be passed by the Knesset, a law affirming Jewish legal rights to all parts of the Land of Israel Israel Land of Israel
THE IDEA THAT Judea, Samaria and Gaza are under Israel's "occupation" was born on June 6-7, 1967, when the Israel Defense Forces overran and repossessed these territories in the Six-Day War and the National Unity Government headed by Levi Eshkol instantly applied Article 43 of the Hague Regulations to keep the existing laws in force. The invoking of this article of international law by the Government was based on the legal advice of then Military Advocate General and future Supreme Court President Meir Shamgar, as well as several others who concurred in that decision. However, this step was in direct contradiction to the existing Israeli constitutional law embodied in the law known as the Area of Jurisdiction and Powers Ordinance enacted by the Provisional State Council on September 16, 1948, and two proclamations that were issued by Prime Minister and Defense Minister David Ben-Gurion just prior to the enactment of this law. These two proclamations -- the Jerusalem Proclamation of August 2, 1948 and the Land of Israel Proclamation September 2, 1948 -- required the application of the law of the State to areas of the Land of Israel November 29, 1947 . Both the law and the two Proclamations were made retroactive to May 15, 1948 , thus creating one legal aggregate upon which to base future annexations of re-conquered territory that was part of the Land of Israel
In contrast to the practice followed by Ben-Gurion's Government in 1948, the Eshkol government in 1967 applied not only the Hague Regulations relating to "occupied territories", but also the provisions of the Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War. This gave birth to the assumption in the eyes of the world and in Israel Land of Israel Israel Jerusalem Golan Heights ) out of demographic concerns and to keep alive the hope of signing peace treaties with the neighboring Arab states. But this provided no justification for the violation of the existing constitutional law or for failing to apply the law of the State to the liberated territories as Ben-Gurion did in 1948.
The term "occupation" is defined in article 42 of the Hague Regulations, where it states that "territory is considered occupied when it is actually placed under the authority of the hostile army and the occupation extends only to the territory where such authority has been established and can be exercised". The premise of Article 42 is that the territory in question belongs to the Occupied Hostile State Occupying State Jordan Judea and Samaria the Hague Egypt Palestine Palestine
The Jewish National Home is not merely a meaningless phrase or slogan. It was and still is a concept of international law that was accepted by the 52 member states of the League of Nations which confirmed the Mandate for Palestine July 24, 1922 . In addition, the United States Judea , Samaria Gaza Great Britain December 3, 1924 ; this treaty was then proclaimed by President Calvin Coolidge on December 5, 1925 as part of the law of the United States December 23, 1920 and embraced all the so-called "occupied territories" of today.
The first and most important speaker at the Conference was Prof. Yoram Dinstein of Tel-Aviv University Jordan July 31, 1988 dissolving Jordan West Bank . Dinstein's opinion is untenable since, as already noted, Jordan West Bank ". It acquired this territory in May 1948 through an unprovoked act of aggression against the nascent Jewish State; it had no right to this territory and then illegally annexed it two years later. Only two countries recognized this illegal annexation, Pakistan Great Britain Jerusalem
There remains only one way to end the myth of Israeli "occupation" of lands that belong by law to the Jewish People. A future Government of Israel must abolish the military regime adopted in June 1967 for Judea , Samaria Gaza
PART 2. THE OCCUPATION OF YESHA: A LEGAL ASSESSMENT
Many Israeli and foreign jurists assume that Israel has violated the Hague Regulations of 1907 and the Fourth Geneva Convention of 1949, when it allowed Jewish communities to be built in Yehuda (Judea), Shomron (Samaria) and Gaza -- collectively, YESHA. Even Israel Israel
Since 1967, when the Israel Defense Forces conquered YESHA (as well as the Golan Heights and Sinai), successive Israeli governments applied Article 43 of the Hague Regulations, thereby retaining the existing laws of its former rulers. Invoking this article of international law was based on the legal advice of Meir Shamgar, Military Advocate-General in 1967 and later Supreme Court President, and others. This decision, however, directly contradicted existing Israeli constitutional law, the Area of Jurisdiction and Powers Ordinance enacted by the Provisional State September 16, 1948 , and two earlier proclamations issued by Prime Minister and Defense Minister, David Ben-Gurion.
The Jerusalem Proclamation of August 2, 1948 and the Land of Israel Proclamation September 2, 1948 required the application of Israeli law to all areas of the Land of Israel November 29, 1947 . Both the law and the Proclamations were made retroactive to May 15, 1948 , thus creating one legal aggregate upon which to base future annexations of re-conquered territory that was part of the Land of Israel
In contrast to the practice followed by Ben-Gurion's Government in 1948, the Eshkol National Unity Government in 1967 applied not only the Hague Regulations relating to "occupied territories", but also the provisions of the Fourth Geneva Convention. This gave birth to the assumption that the liberated territories of the Land of Israel
THE TERM "OCCUPATION", DEFINED IN ARTICLE 42 of the Hague Regulations, refers to territory that is "actually placed under the authority of the hostile army and the occupation extends only to the territory where such authority has been established and can be exercised."
The premise of Article 42 is that territory which belonged to an Occupied State Occupying State Jordan Judea and Samaria the Hague Egypt
Furthermore, the term "occupied Palestinian territory" is a non sequitur, since with the termination of the British Mandate for Palestine Palestine
Areas of Palestine which were under the British Mandate that are said to be under "Israeli occupation" are actually integral parts of the Jewish National Home and belong to the Jewish People under both Israeli constitutional law and several international agreements concluded immediately after World War One, which constitute the real international law that is today conveniently forgotten by those alleging Israeli occupation of YESHA.
The belief that Palestinian Arabs inherited national and political rights from Jordan July 31, 1988 when he dissolved Jordan West Bank has no legal basis. Since it acquired this territory through an unprovoked act of aggression, Jordan
To repeat the conclusion from Part 1: to end the myth of Israeli "occupation", the Israeli government must abolish the military regime adopted in June 1967 for Judea, Samaria and Gaza, and replace the existing military laws and regulations with the law of the State of Israel.
[*] The proper names for the West Bank are Samaria Judea -- Samaria Jerusalem Judea is the land south of Jerusalem Jordan West Bank ".
Howard Grief was born in Montreal , Canada Land of Israel Israel
Part one was submitted June 10, 2007 ; part 2 June 20, 2007.
[Editor's note: You can read Howard Grief, "The Origin of the Occupation Myth," by clicking here. And his article on "Legal Rights and Title of Sovereignty of the Jewish People to the Land of Israel Palestine
League of Nations Mandate For Palestine
League of Nations Mandate for Palestine
with Note re Trans-Jordan, Dec 1922
* Original + Text + Summary + Roleplay Dialogue [PDF, 28p] *
(NOTE: this document is updated from time to time, therefore, it is recommended you link to this page rather than the document)
* Original + Text + Summary + Roleplay Dialogue [PDF, 28p] *
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SUMMARY – The Original Two-State Solution
The Jewish people are owners, not occupiers of Israel Judea and Samaria Palestine West Bank ’ was the name given to Judea and Samaria Jordan Israel
1. ‘Palestine League of Nations of the Mandate For Palestine July 24, 1922 , came into effect Sept 29, 1923 , and ended at midnight on May 14, 1948 , the day before Israel April 25, 1920 . British Foreign Secretary Lord Curzon referred to this resolution as ‘the Magna Carta of the Zionists.’.
OnDecember 3, 1924 the ‘Rights In Palestine Convention’ (44 Stat. 2184; Treaty Series 728) was signed between the United Kingdom United States of America Palestine U.S. Cameroons. ).
The Mandate’s preamble states: “Whereas recognition has thereby been given to the historical connection of the Jewish people withPalestine
Article 2 says, ‘The Mandatory shall be responsible for placing the country under such political, administrative and economic conditions as will secure the establishment of the Jewish national home…”.
Article 6 states that “The Administration ofPalestine
In addition to (Jewish) Palestine/Israel, today’s Arab states ofJordan Syria Lebanon Iraq
On
The Mandate’s preamble states: “Whereas recognition has thereby been given to the historical connection of the Jewish people with
Article 2 says, ‘The Mandatory shall be responsible for placing the country under such political, administrative and economic conditions as will secure the establishment of the Jewish national home…”.
Article 6 states that “The Administration of
In addition to (Jewish) Palestine/Israel, today’s Arab states of
2. THE ORIGINAL TWO-STATE SOLUTION: Palestine Jordan River . Palestine’s land east of the Jordan River promised to Jews was given in appeasement to Arabs, was later expanded eastwards, and forms what is now Jordan, as initiated by the September 16, 1922 ‘Note By The Secretary-General Relating To Its Application To The Territory Known As Trans-Jordan’ in accordance with Article 25 of the Mandate..
3. Paragraph 1 of Clause 80 of Chapter 12 of the United Nations Charter protects existing rights acquired under international instruments such as the Mandate For Palestine:“Except as may be agreed upon in individual trusteeship agreements, made under Articles 77, 79, and 81, placing each territory under the trusteeship system, and until such agreements have been concluded, nothing in this Chapter shall be construed in or of itself to alter in any manner the rights whatsoever of any states or any peoples or the terms of existing international instruments to which Members of the United Nations may respectively be parties.” (Palestine
4. Article 11 of the Hamas Charter explains why the organization calls for the killing of Jews, the destruction of Israel, and the rejection of all peaceful solutions by declaring that Palestine cannot be neglected or given away—even a part of it—by any Arab state(s), king(s) or president(s) because: “The legal status of Palestine according to Islamic law… is like any other land that the Muslims have conquered by force, because the Muslims consecrated it at the time of the conquest as religious endowment for all generations of Muslims until the Day of Resurrection.”
CITATIONS | REFERENCES
1. Salomon Benzimra: The Jewish People’s Rights To The Land Of Israel,2011, 159 pages. Published by Canadians for Israel Israel
· English (Kindle only): http://www.amazon.com/dp/B0065WZM14
· Hebrew (PDF): http://www.cilr.org/home/the-book-heb
2. Video: Salomon Benzimra presentation at 2014 Israel Truth Week Conference, Toronto , Ontario , Canada Israel
· VIDEO, 33:41: http://youtu.be/r7q95R3_p_E
· PRESENTATION NOTES/SLIDES, PDF: http://tinyurl.com/nxx6s5c
3. Howard Grief: The Legal Foundation And Borders Of Israel Under International Law, 2013, 732 pages. The authoritative research work by the late Canadian legal scholar of Israel
4. Renanah & Joe Goldhar-Gemeiner: Petition to the House of Commons of Canada Land of Israel Palestine
http://israeltruthweek.files.wordpress.com/2012/12/goldhar-petition-to-cda.pdf
http://israeltruthweek.files.wordpress.com/2012/12/goldhar-petition-to-cda.pdf
5. U.S. Palestine U.S.
6. United Nations Charter, Chapter 12, Clause 80:https://www.un.org/en/documents/charter/chapter12.shtml
7. Hamas Charter: Translation by MEMRI (Middle East Media Research Institute) http://www.memri.org/report/en/0/0/0/0/0/0/1609.htm
8. Map: Land of Palestine as claimed by World Zionist Organization, 1919. Jewish Virtual Library:http://www.jewishvirtuallibrary.org/jsource/History/ZionistPalestine1919.html
9. ‘NO PEACE WITHOUT TRUTH’ CAMPAIGN: Israel
http://israeltruthweek.org/no-peace-without-truth-campaign-objectives/
http://israeltruthweek.org/no-peace-without-truth-campaign-objectives/
ANNEXATION WINS HANDS DOWN OVER A TWO-STATE SOLUTION
by Matthew H. Hausman
History, Demographics, and Law Favor Israel Judea and Samaria
It has become an article of political faith in the West that the creation of an independent Palestinian state will resolve the Arab-Israeli conflict. But the two-state paradigm is based on fictional assumptions — that an ancient Palestinian people occupied the land for thousands of years until its displacement by Israel Israel Palestine Israel Israel Judea , Samaria Jordan Mediterranean .
The western media relegates any discussion of annexation to the lunatic fringe, but there is nothing radical about the concept. Indeed, the San Remo Conference of 1920 and the League of Nations Mandate for Palestine Transjordan was created on the bulk of Mandate lands under British control, the goal for the remainder was unrestricted Jewish habitation west of the Jordan River . This objective was recognized long before the dialogue was hijacked by the myth of Palestine Judea and Samaria Judea and Samaria
Ironically, commentators who condemn any discussion of annexation as right-wing extremism conveniently ignore the singular role of Arab-Muslim rejectionism in perpetuating the state of war with Israel Israel Israel Israel
Examples of this inequitable treatment abound. Israel Judea and Samaria West Jerusalem and serve in the Knesset), but stands accused of apartheid. She compromised her own security by unilaterally disengaging from Gaza Gaza
In contrast, the Palestinians are barely reprimanded as they reject Israel Israel Egypt Gaza Jordan Judea and Samaria
If these inequities show anything at all, it is that those who push the two-state agenda have no regard for Israeli sovereignty or Jewish historical rights. Rather, they are preoccupied with creating yet another Arab-Muslim state and in promoting the false narrative underlying Palestinian national claims. Absent any historical justification for a state of Palestine Israel Israel
If the inclination of the Obama administration and EU to denigrate Israel Israel
The Annexation of Judea and Samaria
Despite Jordanian attempts to erase all memory of the Jews' presence from Judea and Samaria Nablus Bethlehem
Clearly, the Judenrein status of Judea and Samaria Israel
Israel has Superior Legal Claims to Judea and Samaria
In addition to the Jews' historical connection to Judea and Samaria , Israel
The High Contracting Parties agree to entrust, by application of the provisions of Article 22, the administration of Palestine
(San Remo
(
Underlying the San Remo Resolution's affirmation of the Balfour Declaration was the recognition that the Jews are defined by descent as well as religion, are indigenous to the Land of Israel San Remo Palestine
Whereas the Principal Allied Powers have also agreed that the Mandatory should be responsible for putting into effect the declaration originally made on November 2nd, 1917, by the Government of His Britannic Majesty, and adopted by the said Powers, in favour of the establishment in Palestine of a national home for the Jewish people, it being clearly understood that nothing should be done which might prejudice the civil and religious rights of existing non-Jewish communities in Palestine, or the rights and political status enjoyed by Jews in any other country; and
Whereas recognition has thereby been given to the historical connection of the Jewish people with Palestine
Consistent with this language, Article 2 of the Mandate clearly set forth the British obligation to effectuate these goals in accordance with the San Remo Resolution thus:
The Mandatory shall be responsible for placing the country under such political, administrative and economic conditions as will secure the establishment of the Jewish national home, as laid down in the preamble, and the development of self-governing institutions, and also for safeguarding the civil and religious rights of all the inhabitants of Palestine
(League of Nations Mandate for Palestine
(
Regarding the intended geographical scope of Jewish habitation and settlement, the Mandate specifically provided that:
The Administration of Palestine, while ensuring that the rights and position of other sections of the population are not prejudiced, shall facilitate Jewish immigration under suitable conditions and shall encourage, in cooperation with the Jewish agency referred to in Article 4, close settlement by Jews on the land, including State lands and waste lands not required for public purposes.
(League of Nations Mandate for Palestine
(
The Mandate did not call for a Jewish state with indefensible borders (as did President Obama when he attempted in his recent State Department Speech to pressure Israel Judea and Samaria Gaza
Certainly, there was international consensus that the Jews were entitled by right to a national home in Israel Lebanon Syria Mesopotamia (Iraq Transjordan . There was no separate mandate for the "Palestinians" because they had no independent national existence, as evidenced by the lack of any historical record of an ancient Palestinian presence in the land and by the absence of any cultural or societal institutions that are the hallmarks of nationhood.
Palestinian nationality is a knowing contrivance, as even Yasser Arafat acknowledged in his authorized biography, wherein he stated: "The Palestinian people have no national identity. I, Yasser Arafat, man of destiny, will give them that identity through conflict with Israel
The Palestinian people does not exist. The creation of a Palestinian state is only a means for continuing our struggle against the state of Israel
In contrast, both San Remo Palestine
This recognition of Jewish national rights was ratified by the United States June 30, 1922 , when both Houses of Congress issued a joint resolution unanimously endorsing the Mandate and the goal of reestablishing the Jewish national home. The Congressional resolution stated in relevant part:
Resolved by the Senate and House of Representatives of the United States of America
(Joint Congressional Resolution No. 360, the Lodge-Fish Resolution.)
(Joint Congressional Resolution No. 360, the Lodge-Fish Resolution.)
Despite the Jews' willingness to accept an area comprising less than their traditional homeland, the Arab world refused to accept any expression of Jewish sovereignty and scorned all proposals providing for a modern Jewish state. The U.N. Partition Plan of 1947 was rejected by every Arab-Muslim nation simply because it provided for Jewish autonomy. There was no consideration of Palestinian claims because Palestinian nationality had not yet been invented. In fact, the Arabs altogether rejected the term "Palestine Palestine Palestine Palestine Syria
In light of the resounding Arab-Muslim rejection of the 1947 partition plan, it cannot be relied on as legal precedent to validate Palestinian claims to Judea and Samaria Jerusalem Gaza Israel
In weighing the lawfulness of land acquisitions during wartime, it is important to distinguish belligerent nations from their victims. The laws of war have long recognized that a country that seizes territory while defending itself from unprovoked aggression has legitimate claims of ownership to lands captured from the aggressor nation. There is no dispute that the Arab nations started the wars of 1948, 1967 and 1973 with the expressed goal of destroying Israel Israel Israel Judea , Samaria Jerusalem Gaza
Just as relevant is the fact that Judea and Samaria Jordan Israel Israel Judea and Samaria Israel Israel Judea and Samaria
Security Council Resolution 242 does not Require Israel to Surrender Judea and Samaria
Although U.N. Security Council Resolution 242 is often invoked to demand that Israel Israel Jordan Egypt Syria Israel Judea and Samaria Gaza Israel
Perhaps even more significantly, nowhere does Resolution 242 require Israel Jordan Egypt Syria
Resolution 242, which as undersecretary of state for political affairs between 1966 and 1969 I helped produce, calls on the parties to make peace and allows Israel to administer the territories it occupied in 1967 until 'a just and lasting peace in the Middle East' is achieved. When such a peace is made, Israel is required to withdraw its armed forces 'from territories' it occupied during the Six-Day War — not from 'the' territories nor from 'all' the territories, but from some of the territories, which included the Sinai Desert, the West Bank, the Golan Heights, East Jerusalem, and the Gaza Strip.
. . .
Five-and-a-half months of vehement public diplomacy in 1967 made it perfectly clear what the missing definite article in Resolution 242 means. Ingeniously drafted resolutions calling for withdrawals from 'all' the territories were defeated in the Security Council and the General Assembly. Speaker after speaker made it explicit that Israel
("The Future of Palestine," Rostow, Eugene V., Institute for National Strategic Studies, November 1993.)
("The Future of Palestine," Rostow, Eugene V., Institute for National Strategic Studies, November 1993.)
Furthermore, the black letter of Resolution 242 applies only to incorporated "states," not to amorphous groups of people known as "Palestinians," who did not constitute a state involved in the conflict and who, thus, were not mentioned in the resolution. Although Resolution 242 does mention the issue of refugees, the term as used therein refers to individual Jews and Arabs who lost their homes during the war in 1948, not to a displaced Palestinian nationality that never existed. The Palestinians as a group had no national interest in the land; and to the extent that Jordan Judea and Samaria Oslo Jordan
.
Demographic Reality Favors Annexation
Nearly 60% of Judea and Samaria Jerusalem
There is a two-thirds Jewish majority when Israel Israel Israel Jerusalem
In addition, analysis of the Arab population shows that it is not composed of a uniform cultural group with common roots in the land. The population in Gaza Judea and Samaria Ottoman Empire . Thus, the Palestinians do not comprise a singular cultural stock, but rather reflect the heterogeneous make-up of the wider Arab-Muslim world, which is home to disparate and often clashing, religious, ethnic, and cultural groups and minorities.
Indeed, the Arab world is a diverse hodgepodge containing various ethnic groups, such as Arabs, Copts, Kurds, Berbers, Turks, Maronites, Armenians, and Circassians, as well as assorted religious groups, including Sunnis, Shiites, Alawites, Christians and Zoroastrians. Though these groups are often at odds, they have been forced together into modern states that were arbitrarily created by the European mandatory powers. The boundaries of Jordan Syria Iraq Lebanon Mideast society during the mandatory era, and today attempt to enforce a dysfunctional dynamic on Israel
Considering the irreconcilable intricacies of Mideast culture, and the suspect motivations of the progressive west in attempting to force the creation of a Palestinian state, Israel
Formal or Passive Annexation
Although the subject of annexation was made taboo by the political left in Israel Jerusalem
The concept of incorporating land by either method, or a combination of the two, has been the subject of growing interest — and not only from the settler movement. Those favoring formal annexation believe it would manifest the reality that Israel Judea and Samaria Jordan Valley
Issues to be determined would include whether to provide Arab inhabitants of the territories with the opportunity for citizenship, grant them permanent resident status, or compensate them for moving elsewhere. However, given that the original intent of San Remo and the Mandate was to restore to the Jews their ancestral homeland, and that an Arab state in Jordan was created on three-quarters of the territory under the Mandate, Israel arguably has no legal or ethical obligation to extend any citizenship benefits, particularly to those who reject her right to exist as a Jewish state.
Regardless of the methods to be employed, Israel Judea and Samaria Israel Israel
Matthew Hausman is an attorney living in Connecticut
Two states for two people, Jordan must contribute
In the most extensive remarks to date on his proposed Middle East agreement, U.S. President Bill Clinton made a plea Sunday for peace, telling U.S. Jewish leaders their land also is the Palestinians' homeland and "there is no choice but for you to divide this land into two states for two people." -- Speech to the Israel Policy Forum, Jan 7, 2001
Yet Jordan Palestine
 |  |
The land on which Israel League of Nations and the British had designated the land called "Palestine Jordan River from the Mediterranean to Arabia and Iraq Egypt Lebanon Syria Jordan
capable of supporting a large population if irrigated and cultivated scientifically. ... The Zionists have as much right to this no-man's land as the Arabs, or more.
Thus, the territory known variously as "Palestine South Syria ," as "Eastern and Western Palestine ," or as part of "Turkey United States
That there be established a separate state of Palestine.... placed under Great Britain as a mandatory of the League of Nations ... that the Jews be invited to return to Palestine and settle there.... and being further assured that it will be the policy of the League of Nations to recognize Palestine as a Jewish state as soon as it is a Jewish state in fact. . . . England
The Arabs of that day achieved independent Arab statehood in various lands around Palestine Palestine Syria Iraq Saudi Arabia
Considering all the "territories" that had been given to the Arabs, Lord Balfour "hoped" that the "small notch" of Palestine Jordan River , which was "being given" to the Jewish people, would not be "grudged" to them by Arab leaders .6
But, in a strategic move, the British Government apparently felt "the need to assuage the Emir's [Abdullah's] feelings."7 As one of the royal sons of the Hejaz (Saudi Arabia Hejaz had been, among all the Arab world, of singular assistance to England
The insertion of Abdullah and his emirate into mandated Palestine Jordan River that was part of the land allocated to the "Jewish National Home," might be partially traced to a suggestion received by Colonial Secretary Winston Churchill from T. E. Lawrence. In a letter of January 1921, Lawrence Lawrence Arabia 's" choice to lead the Arab revolt)9 had "agreed to abandon all claim of his father to [Western] Palestine Iraq Eastern Palestine as Arab territories. [See Feisal-Weizmann agreement]
Further explanation was found in a "secret dispatch from Chief British Representative at Amman
responsible for all internal affairs, referring to his highness Abdullah for a decision in the event of any disagreement....
All the "Board" members, according to the Eastern Palestine envoy, were
Syrian exiles, who with perhaps one exception, are more interested in designs on the French in Syria Great Britain
... The allies had not dealt fairly with the Arabs because, whereas they had agreed to form one Arab nation, forming different Arab states, and even in Syria Hejaz , he would look ridiculous.10
Winston Churchill proposed his plan for Transjordan to Prime Minister Lloyd George in March 1921:
We do not expect or particularly desire, indeed, Abdullah himself to undertake the Governorship. He will, as the Cabinet rightly apprehend, almost certainly think it too small.... The actual solution which we have always had in mind and for which I shall work is that which you described as follows: while preserving Arab character of area and administration to treat it as an Arab province or adjunct of Palestine
It was a British Jew, Palestine High Commissioner Sir Herbert Samuel, who supported and even extended Winston Churchill's formulations. Samuel sent a telegram to Churchill in July 1921; while discouraging Churchill from submitting to Abdullah's predicted eventual "demand" for "attachment of Trans-Jordania to, the Hejaz ," as being "contrary to Article V of the Mandate and open to much objection in relation to future development," High Commissioner Samuel suggested the following:
I concur in proposal that Abdullah should visit London Jordan
Feisal got his wishes and became King of Iraq;13 his brother Abdullah was installed in the British mandatory area as ruler of the "temporary" emirate on the land of eastern Palestine Kingdom of Transjordan
Palestine High Commissioner Harold MacMichael later offered some evidence -- of the original "temporary" nature of British intentions in a "private, personal and most secret" cipher; MacMichael reported in 1941 that Abdullah now harbored greater ambitions, because of
the part he [Abdullah] played in the last war, his position in the Arab world as a senior member of a royal house, [and] the purely temporaryarrangements whereby in 1921 having narrowly missed being made King (a) of Iraq and (b) of Syria in turn, he was left to look after Trans-Jordan .... 14
The League of Nations Mandate for Palestine Britain Transjordan until 1946, when that land was declared an independent state.20Transjordan had finally become the de jure Arab state in Palestine just two years before Israel gained its Jewish statehood in the remaining one-quarter of Palestine; Transjordan comprised nearly 38,000 square miles; Israel, less than 8,000 square miles.
[* As the next chapters will illustrate, instead, Arabs poured from Eastern Palestine as well as from Arab areas within Western Palestine -- into the Jewish -- settled areas in Western Palestine. The course of action which followed from that unrecognized population movement brought ramifications which are as critical to the question of political "justice" as they are unknown or disregarded today.]
Thus, about seventy-five percent of Palestine Jordan River , called Jordan land of Palestine Israel Transjordan 22 declared: "Palestine Transjordan are one, for Palestine Transjordan the hinterland of the same country." Abdullah's policy was defended against "Arab challengers" by Prime Minister Hazza al-Majali:
We are the army of Palestine Jordan
Although Abdullah's acknowledgment of Palestinian identity was not in keeping with the policy of his grandson, the present King Hussein, Jordan is nonetheless undeniably Palestine, protecting a predominantly Arab Palestinian population with an army containing a majority of Arab Palestinians, and often governed by them as well. Jordan Jordan
The Kingdom of Palestine Palestinian Republic
Yasser Arafat has stated that Jordan Palestine Jordan Palestine Jordan Jordan Palestine
Indeed, the "native soil" of Arab and Jewish "Palestines" each gained independence within the same two-year period, Transjordan in 1946 and Israel Palestine Palestine Israel Palestine Israel Israel Palestine
However, within what Lord Balfour had referred to as that "small notch" sometimes called Palestine Eastern Palestine -or the Arab emirate of Transjordan -and Western Palestine , which comprised less than one-fourth of the League of Nations Mandate. The portion of the "notch" of land on which the Jews settlod and in which most Jews actually lived -- from the 1870s and 1880s through the 1940s -- was in fact only a segment of the area of Western Palestine.
The East Bank and the West Bank, same situation
If Israel Palestine Jordan Palestine
Each country, Israel Jordan Jordan
Area
|
Population
|
Percentage of total
Palestinian population |
2,272,000
|
30.7%
| |
1,572,000
|
21.3%
| |
963,000
|
13.0%
| |
1,095,000
|
14.8%
| |
356,000
|
4.8%
| |
325,000
|
4.3%
| |
54,000
|
0.7%
| |
33,000
|
0.4%
| |
38,000
|
0.4%
| |
Rest of Arab Countries
|
319,000
|
4.3%
|
United State of
|
159,000
|
2.2%
|
Other Countries
|
209,000
|
2.8%
|
Total
|
7,395,000
|
100%
|
SOURCE: Palestinian Central Bureau of Statistics for Palestinians in WB/Gaza
Table: Estimated Palestinian Population Worldwide, mid-1996 (http://www.pcbs.org/english/pop1.htm) and other countries (http://www.pcbs.org/english/t7.htm); Israeli Central Bureau of Statistics estimates of Palestinians in | ||
Palestinians are by law guaranteed the RIGHT OF RETURN to Jordan
1. The Old Testament indicates that historic Palestine Jordan River , east bank as well as west bank, including the territory now known as Jordan Palestine Jordan River equaled or exceeded in area the portion west of Palestine Jordan River than to the west, the entire tribe of Reuben dwelled east of the Jordan Jordan Mount Gilead Jordan Jordan River as well as the west. The New Testament city of Philadelphia Jordan River , as was the city of Golan Palestine
2. For map of Palestine August 11, 1919 , stated: "Palestine Jordan
3. December 2, 1918-Toynbee minute: Foreign Office Papers; 371/3398-Amold Toynbee agreed with the Mandate: "It might be equitable [to include in Palestine] that part ... which lies east of the Jordan stream ... at present desolate, but capable of supporting a large population if irrigated and cultivated scientifically ... The Zionists have as much right to this no-man's land as the Arabs, or more," cited in Martin Gilbert, Exile and Return, p. 115. See also David Lloyd George, The Truth About the Peace Treaties (vol. 1), pp. 1144-1145.
4. United States January 21, 1919 . See also U.S. Congressional Resolution, June 30, 1922 , in Survey of Palestine, p. 21.
5. In Arabia itself, largely equivalent to present Saudi Arabia, Jews had been present and had developed towns such as Medina and Khaibar, where they thrived from Roman days and before, until the conquest by Muhammad and subsequent directions from Omar. Then the Jews were slaughtered or their land expropriated and Jews were forced to flee for their lives if they did not convert to Islam. Many of those Jewsin the seventh century fled as refugees back to "Palestine
6. Lord Balfour speech, July 12, 1920 , cited in Palestine Royal Commission Reporl, para. 27, p. 27, 1937; see maps in this chapter and Appendix 1. See n. 15 here.
7.High Commissioner Harold MacMichael to the Secretary of State for the Colonies, regarding Transjordan, cipher telegram, private, personal and most secret, 1941, PRO C0733/27137.
8. David Lloyd George, The Truth About the Peace Treaties, pp. 1119, 1140. Also see Esco, Palestine
9. Gilbert, Exile, p. 132; see T.E. Lawrence, Revolt in the Desert, about Abdullah, particularly pp. 1-7. Feisal's role is woven throughout Lawrence
12. July 4, 1921, telegram to Secretary of State for the Colonies, C0733/35186; response to "Very Confidential" memo "from the Civil Secretary after his recent tour in Trans-Jordania," Churchill to Samuel, July 2, 1921, C0733/36252.
13.Churchill Papers 17/14, January 17,1921; cited in Gilbert, ExileandReturn, p. 132; the British chose Feisal to be King in March 192 1, at the Cairo Conference. See Esco, Palestine
14.MacMichael hoped in 1941 to offer Abdullah a "consolation prize" of "Trans Jordan" when the country gained independence of the Mandate, and after Abdullah "has realized that his hopes ... for Syria
15.According to the 1937 Palestine Royal Commission Report, "Trans-Jordan was cut away from that field [in which the Jewish National Home was understood to be established at the time of the Balfour Declaration.... the whole of historic Palestine October 24, 1915 , had included Palestine Britain Palestine Palestine Palestine League of Nations and was thus binding upon its trustee, England Palestine Transjordan should be opened to Jewish immigration." It never was. Palestine Royal Commission Report, pp. 22-38; for texts of several British witnesses and full McMahon text: Esco, Palestine, vol. 1, p. 1811 Great Britain, Correspondence, Cmd. #5957; Churchill White Paper, June 3, 1922, Statement of British policy in Palestine, Cmd. # 1700, p. 20; Lloyd George, The Truth About the Peace Treaties, vol. 11, pp. 1042, 1140-1155; D.H. Miller, Diary, vol. XIV, pp. 227-234 and 414, vol. 11, pp. 188-189, vol. XVII, p. 456; H.F. Frischwasser-Ra'anan, The Frontiers of a Nation (London: Batchworth Press, 1955), pp. 104-107. Frischwasser-Ra'anan writes of the statement by British Foreign Office expert on the Near East, Lord Robert Cecil: " 'Our wish is that the Arab country shall be for the Arabs, Armenia for the Armenians and Judea for the Jews,"' pp. 104-105; Antonius, Arab Awakening, pp. 390-392; The Letters of TE. Lawrence, David Garnett, ed. (Doubleday, Doran, 1939), pp. 281-282; for international legal interpretation, see J. Stoyanovsky, The Mandatefor Palestine (London, New York, Toronto: Longmans, Green & Co., 1928), pp. 66, 205-223; Parliamentary Debates, Commons, vol. 113, col.115-116, May 23,1939, for the views of the Archbishop of Canterbury; for examples of discussion of the McMahon-Hussein matter that omit available evidence described or referred to above, and suggest support of the Arab protestations, see William B. Quandt, Fuad Jabber, Ann Mosely Lesch, The Politics of Palestinian Nationalism (Berkeley, Los Angeles, London: University of California Press, 1973), pp. 8-11; John S. Badeau, East and West ofSuez (New York: The Foreign Policy Association, 1943), p. 45.
16.In the Anglo-American Committee's "Historical Summary of Principal Political Events in Palestine Since the British Occupation in 1917," a chronological summary beginning in 1917, no mention at all is made of the gift of Transjordan to the Arabs by the British-neither in the 1922 summary nor in 1928, when an "organic Law" was enforced, nor in 1929 when the ratification of the "Agreement" took place. See Summary in Survey of Palestine Israel the 12th August, 1927 , the High Commissioners for Palestine Transjordan . Since that date, however, the High Commissioners have received separate commissions for Palestine Palestine
17.The only proposal Britain as Mandatory power submitted to the League of Nations "during the lifetime of the League. . ." was a 1922 memorandum citing Article 25 of the Mandate; Article 25 allowed the Mandatory power "with the consent of the Council of the League of Nations, to postpone or withhold application of such provisions of the mandate as he may consider suitable to those conditions, provided that no action ... is inconsistent with ... Article 15, 16 and 18." The article referred to "the territories lying between the Jordan Hejaz (Saudi Arabia Israel Jordan Palestine TransJordan and the Mandate. In fact it appears that, to humor Emir Abdullah, the British gave the appearance of a severance, with the real consequences of a severance from Palestine upon the Jewish National Home, and the de facto creation of the Palestinian Arab state, while the British never attempted to legalize their actions, only to record them; "the only legal action ever taken by the British Government" was taken under Article 25: the Resolution of September 16, 1922. League of Nations Official Journal, November 1922, pp. 1390-1391; Riebenfeld, ibid., p. 18. For an absorbing account of "what exactly happened on September 16, 1922 " see Dr. Riebenfeld's "Integrity of Palestine," Midstream, August/September, 1975, p. 12ff; also see Ernest Frankenstein, Justice for My People.
18. Alec Kirkbride, A Crackle of Thorns (1956), pp. 19-20. Kirkbride goes on to say, however, that "There was no intention" in 1920 "of forming the territory east of the river Jordan
19.When Britain February 20, 1928 , the League of Nations Permanent Mandates Commission challenged the agreement as a "conflict with the Mandate for Palestine Quincy League of Nations (Chicago: University of Chicago Press, 1930), p. 458. The statement of the Commission (in part) was: "Since the Commission is charged with the duty of seeing that the mandate is fully and literally carried out, it considers it necessary to point out in particular, Article 2 of the Agreement, which reads as follows: "'The powers of legislation and administration entrusted to His Britannic Majesty as mandatory for Palestine shall be exercised in that part of the area under Mandate known as Transjordan by His Highness the Amir . . .' does not seem compatible with the stipulation of the Mandate of which Article I provides that: 'The mandatory shall have full powers of legislation and of administration, save as they may be limited by the terms of this mandate."' League of Nations, Official Journal, Oct. 1928, p. 1574; also see pp. 1451-1453; also in Riebenfeld, Israel, Jordan and Palestine, pp. 24-25; ... At that point Britain's Council member "explained that Great Britain still regarded itself as responsible for the ... mandate in TransJordan and the Council was satisfied." Quincy
21. April 12, 1948, Arab League Resolution: No partition would be acceptable, and a Palestine must be liberated from the Zionists; on April 16, 1948, Abdullah abolished the Jordan Senate and appointed 20 new Senators: 7 Senators were Palestinian Arabs; on April 24, 1948, Jordan's House of Delegates and House of Notables, in joint session of Parliament, adopted a resolution: ". . . basing itself on the right of self-determination and on the existing de facto position between Jordan and Palestine and their national, natural and geographic unity and their common interests and living space. . . ." The parliament supported the "unity between the two sides of the Jordan Cited in "Jordan Annexes Arab Palestine," by Benjamin Schwadran, Middle Eastern Affairs; vol. 1, no. 4, April 1950.
22. April 12, 1948 , cited in Paul Riebenfeld, "The Integrity of Palestine", in Midstream, August-September 1975, p. 22.
24. Jordanian Nationality Law, Official Gazette, No. 1171, Article 3 (3) of Law No. 6, 1954, February 16, 1954 , p. 105.
25. Ahmed Shukeiry to the Council of the Arab League, November 1966, cited in Riebenfeld, "The Integrity," Midstream, p. 23.
26.Mohamed Heikal, Road to Ramadan (New York: Ballantine Books, 1975), p. 96. See Heikal's account of a meeting between Arab heads of state, including King Faisal, Ghadaffl, and President Nasser; according to Heikal, King Hussein's war ended September 27, 1970 , with the signed agreement between Hussein and Yasser Arafat, and the "withdrawal of all ... forces from every city in the country" (p. 99). According to another source, the ceasefire took place September 25, but fighting continued well into 1971. Political Terrorism, edited by Lester Sobel (New York: Facts on File, Inc., 1975), cited in Hashemite Kingdom
27. June 2, 1971 : Hussein's orders to Jordanian Premier Wasfi Tel, cited in Hashemite Kingdom
This page was produced by Joseph E. Katz Middle Eastern Political and Religious History Analyst Brooklyn , New York
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Source: "From Time Immemorial" by Joan Peters, 1984
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WHY IS THE SAN REMO
by: Canadians for Israel
The San Remo Conference of 1920 was built upon a series of events which occurred before, during and immediately after World War One, and which are summarized below:
- The birth of modern Zionism under Theodor Herzl in 1897.
- The Balfour Declaration of 1917, where
- The defeat of the Turks in
- The Fourteen Points of U.S. President Wilson (1918), which called for an end to secret treaties between nations; emphasized the interests of the populations concerned; and advocated for the creation of a "general association of nations."
- The Paris Peace Conference and the birth of the
- The adoption of Article 22 of the Covenant of the
The adoption of a legal mechanism for the dispossession of Turkey Middle East .
This sequence of events led to the San Remo Conference (April, 1920) where the map of the Middle East was redrawn, and a major Resolution was adopted by the Supreme Council of the Principal Allied Powers (Britain, France, Italy, Japan), with the United States acting as an observer[*]:
- For the first time in history,
- All prior agreements concerning the region were terminated, including the Sykes-Picot Agreement between
- The Balfour Declaration was incorporated in the Resolution and its implementation was required; it became an act of international law.
- The legal title to
- The Jewish people became the national beneficiary of the Mandate for
- The San Remo Resolution was adopted and later included in the Treaty of Sèvres (Art. 94-97). These provisions remain in force, even though the Treaty of Sèvres was not ratified by the later Turkish government of Kemal Ataturk.
- The Arabs received equivalent national rights in Syria/Lebanon,
- The San Remo Conference also marks the end of the longest period of foreign occupation/colonization in history (1,850 years of dispossession of the Jewish people in their ancestral
[*] The United States Palestine
On June 30, 1922, a joint resolution of both Houses of Congress of the United States unanimously endorsed the "Mandate for Palestine," confirming the irrevocable right of Jews to settle in the area of Palestine — anywhere between the Jordan River and the Mediterranean Sea. [... On September 21, 1922 , the then President Warren G. Harding signed the joint resolution of approval to establish a Jewish National Home in Palestine
(http://www.mythsandfacts.com/article_view.asp?articleID=100)
(http://www.mythsandfacts.com/article_view.asp?articleID=100)
RECLAIM JEWISH LAND; REJECT THE TWO-STATE SOLUTION
The notion of a 2-state solution stays alive, first, because it is coercively presented as the only possible solution: "Give away Biblical Israel to those nice Palestinians OR the bogie man will make you accept a 1-state solution where those nasty Palestinians will outnumber you.." Secondly, the diplomats have put some effort into twisting Israel
In the present set of essays, Barbara Lerner is convincing in her insight that the best way we have to fight specious Muslim proposals for stealing Jewish land is to begin by appreciating our own Jewish and Christian Biblical roots in Biblical Israel. Several article conclude that the best way to end the refugee problem is to get rid of UNRWA. Martin Sherman suggests helping the individual Arab families relocate.
Any viable solution must recognize that the so-called Palestinians have no valid claim on any part of the Land of Israel — Howard Grief's essay provides the legal substructure that protects Jewish rights in the land — and that Israel would be negligent if it didn't defend its borders and protect its citizens from Arab predators. The best way to do this, as Martin Hausman's article suggests, is to annex the Territories formally.
Thanks to the U.N., there exists a large — and growing — group of stateless Arabs, rejected by the Arab states, regarded as throwaways in the Arab War against the West and a constant source of budding terrorists and terrorist activity. The Palestiniansare (not politically) correctly described in several essays below. It would benefit the West to rid the region of this constant irritant by (1) by urging that Arab states where the refugee camps are located to give the refugees citizenship status; or (2) by breaking up the collection of Arabs referred to as Palestinians/Arab refugees into family units, each individually supplied with the means to negotiate for immigrant status in countries that will accept them; or (3) declaring Jordan with its Palestinian arab majority the state of Palestine. Professor Mordechai Nisan of Hebrew University
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