THE LEGAL AND HISTORICAL PRECEDENTS FOR ISRAELI CLAIMS TO JUDEA AND SAMARIA
The following is the text of a keynote address delivered at Israel Truth Week in Hamilton, Ontario, on March 6, 2013. Israel Truth Week, now in its second year, was conceived and coordinated as a response to Israel Apartheid Week, an annual hatefest that has swept across North American college campuses over the last decade. This year’s Israel Truth Week included more than 20 speakers from Canada, the United States and Israel, and the program seems poised to spread internationally. A discussion of ITW can be found in an article entitled, “The Shame of Israel Apartheid Week,” which appeared originally in Israpundit,http://www.israpundit.com/archives/53428 and was republished in Arutz Sheva at http://www.israelnationalnews.com/Articles/Article.aspx/13007#.Uf6DRk7D9es.
In discussing the legal foundations for the modern state of Israel, we’re often hampered by two nagging obstacles. The first is classic anti-Semitism – haters will never accept the Jews’ right to live in the land of their ancestors regardless of the historical veracity of their claims. The second is ignorance. Many people simply don’t know Jewish history, or for that matter the history of Islam, the Arab conquests or the Mideast in general.
For some people the history of Israel only began in 1948, after the Arab-Muslim world had rejected the UN partition vote and attacked the Jewish State in the first of several wars of attempted extermination.
For others it began with Theodor Herzl’s publication of “Der Judenstaat” in 1895.
And for still others it began thousands of years ago with the covenant between G-d and Abraham.
However, we must understand the history leading up to Israel’s independence in its organic context. Regarding the Jewish scriptural view, we need to recognize that not everyone believes in Tanach and that many who claim to may not actually read the same Bible or have the same understanding of Jewish tradition.
This is not to discount the significance of the Torah’s account; but Jews lived in the Land of Israel for thousands of years regardless of how their national identity was formed. Before the British, before the Ottomans, before the Arabs and before the Romans, the land belonged to and was inhabited by the Jews. Indeed, the word “Jew” comes from the name Judea, the only sovereign nation to exist on that land between the time of the Roman conquest and Israel’s independence.
Whereas Israel’s detractors often belittle Jewish nationality by saying that Judaism is “just a religion,” the Jews are in fact an ancient people connected by religion, blood, shared history, and common language preserved in prayer and daily speech. Jewish religion encompasses a belief system that is imposed largely by descent. One does not become Jewish by the willy-nilly observance of certain rituals. Rather, one is obligated to observe precisely because he or she is Jewish.
There is no conflict within Judaism between religious and national identity, each of which is essential and reinforces the other. Indeed, the Covenant is viewed as both a religious and national inheritance that has validated the Jews’ presence in their homeland since time immemorial. Although the Romans dispersed much of the population after quashing the Bar Kochba Rebellion in the year 136 CE, a tenacious remnant remained in their homeland, where their descendants continued to live until the establishment of the modern state. The Jews are the only people with a continuous connection to the land from ancient to modern times.
Though many people today believe that creating an independent Palestinian state where none ever existed will resolve the Arab-Israeli conflict, the two-state paradigm is based on three fictional assumptions, namely: (a) that an ancient Palestinian people occupied the land for generations until its displacement by Israel; (b) that the conflict is driven by this displacement; and (c) that Israel usurped ancestral Arab soil.
These false premises are used to obscure the true nature of the conflict, which is not really a dispute over real estate, but rather a war of total annihilation being waged against the Jewish state by the entire Arab-Muslim world. Establishing a Palestinian state will not facilitate peace because the goal of this war is not peaceful coexistence but the extermination of Israel and her people. The creation of Palestine is intended only as the first step for achieving this goal.
Lost in all the propaganda is any acknowledgment of the Jews’ historical, legal and demographic claims to their homeland, which traditionally included all of Judea and Samaria. These lands were integral parts of the ancient Jewish commonwealth. Palestinian claims do not have the same historical antecedents – or any for that matter – but are a modern political contrivance.
The western media denigrates any discussion of the possible annexation of Judea and Samaria, but the concept is neither new nor radical. Indeed, the San Remo Conference of 1920 and the League of Nations Mandate for Palestine of 1922 contemplated Jewish settlement throughout the entire homeland, long before the term “Palestinian” entered common usage in the late 1960s as a semantic weapon in the propaganda war against Israel. In addition to Judea and Samaria, this homeland included territory on both sides of the Jordan River, including all of what is now Jordan.
Although the Diaspora began with the Romans, the Jews always maintained a National Presence
In order to debunk those who disparage Jewish national rights, it’s useful to start with the most common myth used to delegitimize Israel. Specifically, the claim that Israeli “settlements” are illegal is based on the big lie that Jews are strangers to Judea, Samaria, and the entire Mideast. And it’s simply not true.
Arguing that the settlements are illegal requires one to ignore the provenance of the area that came to be designated the “West Bank.” This territory was never part of a sovereign nation called “Palestine” because no such country ever existed. Rather, it was part of the Ottoman Empire for 600 years or so, before which it was non-sovereign territory that had passed from one conquering empire to the next starting with Rome.
These lands, and indeed the entire area that would be reborn as modern Israel, passed directly from the Kingdom of Judea to Rome after the Bar Kochba Rebellion. Upon the disintegration of the unified Roman Empire, the land came under Byzantine rule, which was followed by Arab-Muslim conquest and then Ottoman control until the Turks were defeated in World War I. The former Ottoman provinces were then divided into mandatory protectorates, with the British assigned the territory that would later become Israel and Jordan.
After Transjordan was created in 1921 on most of the territory under British control, the remainder was designated for unrestricted Jewish habitation west of the Jordan River. This objective was recognized long before the dialogue was hijacked by the canard that Judea and Samaria were historically Arab lands.
Only the Jews have Ancestral Claims to Judea and Samaria
Israel has historical claims to Judea and Samaria because they were part of the Second Jewish Commonwealth. Jews lived there from ancient times through successive conquests until 1948, when the area became Judenrein after combined Arab-Muslim forces invaded from east of the Jordan River.
Israel has historical claims to Judea and Samaria because they were part of the Second Jewish Commonwealth. Jews lived there from ancient times through successive conquests until 1948, when the area became Judenrein after combined Arab-Muslim forces invaded from east of the Jordan River.
Transjordan (now Jordan) occupied Judea and Samaria and dubbed them the “West Bank,” just as the Romans had renamed the Kingdom of Judea “Philistia” (Palestine) after the long-gone Philistines in an effort to obscure the Jews’ connection to their homeland. Jordan’s annexation was illegal under international law and was recognized only by Great Britain and Pakistan.
In contrast, Israel’s acquisition of Judea and Samaria during the Six-Day War was perfectly lawful, despite Arab claims to the contrary. In fact, it is Palestinian land claims that are dubious, based as they are on Jordan’s transfer of negotiating “rights” over these territories to the Palestinian Authority as part of the Oslo process. Because Jordan seized these lands in violation of international law, it never possessed lawful title and thus had no legal rights to convey.
During its nearly 20-year occupation of Judea and Samaria, Jordan attempted to erase all memory of the Jewish connection to the land. Nevertheless, the Jewish character of the land is evidenced by the plethora of holy sites it contains, including, Joseph’s Tomb in Nablus, the Cave of the Patriarchs in Hevron, and Ramat Rachel near Bethlehem.
The pedigree of the land is also reflected by the abundance of Hebrew place names that evidence Jewish habitation from Biblical times. These towns include, among many others: Batir, which corresponds to Beitar, the seat of Bar Kochba’s rebellion against Rome; Beit-Hur, a derivation of Beit Horon, where the Maccabees defeated the Assyrian Greeks; Beitin, an Arabic corruption of the name Beit El, where the Prophet Shmuel held court and the Ark of the Covenant was kept before the Temple was built in Jerusalem; and Tequa, the site of ancient Tekoa, where the Prophet Amos was born and received his prophesy.
There is no doubt that Judea and Samaria had a long history of Jewish habitation. Nevertheless, the Arab-Muslim world – aided and abetted by the political left – continues to promote the lie that the Jews were strangers to these lands before 1967 and that all “settlements” are colonial enterprises. This simply is not true.
Israel has Superior Legal Claims to Judea and Samaria
In addition to the Jews’ long history in Judea and Samaria, Israel’s land rights are consistent with established legal precedents that were incorporated into the San Remo Convention shortly after the First World War.
Regarding the lands liberated from Ottoman rule, the San Remo Resolution resolved:
The High Contracting Parties agree to entrust, by application of the provisions of Article 22, the administration of Palestine, within such boundaries as may be determined by the Principal Allied Powers, to a Mandatory, to be selected by the said Powers. The Mandatory will be responsible for putting into effect the declaration originally made on November 8, 1917, by the British Government, and adopted by the other Allied Powers, in favour of the establishment in Palestine of a national home for the Jewish people, it being clearly understood that nothing shall be done which may prejudice the civil and religious rights of existing non-Jewish communities in Palestine, or the rights and political status enjoyed by Jews in any other country.
(San Remo Convention Resolution, Paragraph (b).)
Underlying San Remo’s affirmation of the Balfour Declaration was the recognition that the Jews are (a) an indigenous people who are (b) defined by descent as well as religion and who are (c) possessed of the inalienable right to national ascendancy in their homeland. The San Remo program was ratified by the League of Nations Mandate for Palestine in 1922, the preamble of which included the following passages:
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; andWhereas recognition has thereby been given to the historical connection of the Jewish people with Palestine and to the grounds for reconstituting their national home in that country…
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. (League of Nations Mandate for Palestine, Article 2.)
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, Article 6.)
The Mandate did not call for a Jewish state with indefensible borders. Rather, it recognized the Jews’ right to live anywhere within their homeland in safety and security.
Pursuant to Article 6 of the Mandate, “close settlement by Jews on the land, including State lands not required for public use” was to be encouraged. Article 80 of the U.N. Charter preserved the Jews’ right to close settlement by specifying that: “nothing in the [United Nations] Charter shall be construed … to alter in any manner the rights whatsoever of any states or peoples or the terms of existing international instruments.”
The Mandate contemplated a Jewish state that would incorporate some or all of Judea, Samaria, and Gaza. Indeed, it recognized the Jews’ connection to a homeland that historically included these territories.
This recognition of Jewish national rights was ratified by the United States on June 30, 1922, when both Houses of Congress issued a joint resolution unanimously endorsing the Mandate’s 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 in Congress assembled. That the United States of America favors the establishment in Palestine of a national home for the Jewish people, it being clearly understood that nothing shall be done which should prejudice the civil and religious rights of Christian and all other non-Jewish communities in Palestine, and that the holy places and religious buildings and sites in Palestine shall be adequately protected.
(Joint Congressional Resolution No. 360, the Lodge-Fish Resolution.) Israel always honored these obligations and protected the rights of minorities. In contrast, Jordan persecuted non-Muslims and desecrated their holy sites during its illegal occupation.
It’s worth noting that Jewish rights under the Palestine Mandate were not recognized in a vacuum, and that Arab self-determination was addressed by the establishment of the French Mandate in Lebanon and Syria and the British Mandate in Mesopotamia (Iraq) and Transjordan. There was no separate mandate for the “Palestinians” because they had no independent national existence. In contrast, San Remo and the Mandate evidenced an international recognition of the Jews’ historical rights in their homeland.
Despite the Jews’ willingness to accept a state comprising less than their traditional homeland, the Arab world refused to accept any expression of Jewish sovereignty and scorned all proposals providing for Jewish independence.
The UN Partition Plan of 1947 was rejected by the Arab-Muslim world because it provided for Jewish autonomy. Palestinian claims were not considered at the time because Palestinian nationality had not yet been invented. In fact, the Arabs rejected the term “Palestine” because, as stated by Auni Bey Abdul-Hadi to the Peel Commission in 1937:“There is no such country [as Palestine]. ‘Palestine’ is a term the Zionists invented. There is no Palestine in the Bible. Our country was for centuries part of Syria.” This was the prevailing Arab view at the time.
Israel’s Liberation of Judea and Samaria was Consistent with the Laws of War
In light of the resounding Arab-Muslim rejection of the 1947 partition plan, it cannot be cited as legal precedent to validate Palestinian claims to Judea and Samaria – or for that matter to Jerusalem or Gaza. Likewise, Israeli sovereignty cannot be impugned because she came into modern possession of these lands during wartime. Pursuant to the laws of war, the seizure of land from belligerent nations during wartime gives rise to lawful claims of ownership.
The laws of war cannot be ignored when weighing the legality of Israeli control of Judea and Samaria. International law has long recognized the right of a country to seize territory while defending itself from the unprovoked aggression of belligerent nations, and that the country defending itself can legitimately retain lands captured from its aggressors.
There is no dispute that the wars of 1948, 1967 and 1973 were started by the Arab nations with the goal of destroying Israel and her people. There is likewise no dispute that in attacking Israel, these nations violated Article 2, Section 4 of the U.N. Charter, which provides:
All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.
Consequently, Israel was acting within her legal rights when she captured Judea, Samaria, Jerusalem, Golan, Sinai, and Gaza during the Six-Day War.
It is equally relevant that Judea and Samaria were never lawfully part of any sovereign Arab or Muslim nation at any time after the Roman conquest, but rather constituted unincorporated territories that were illegally occupied by Jordan in 1948.
Why is this history so important? Because when Israel wrested control of these lands from Jordan, she in fact liberated them from foreign occupation; and in doing so she was enforcing national rights that had been recognized by San Remo and the Mandate.
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 withdraw to the 1949 armistice lines, it actually says nothing of the kind.
Resolution 242 recognizes that Israel was attacked by Jordan, Egypt and Syria in 1967, and calls on the parties to that conflict to negotiate a “just and lasting peace” based on “secure and recognized borders.” This language implicitly recognizes that Israel’s capture of Judea and Samaria, and also Golan, Gaza and Sinai, was legal under international law. If it were not, Resolution 242 would simply have demanded that Israel return all lands captured from her attackers. There would be nothing to negotiate and no need to deviate from the 1949 armistice boundaries known as the “Green Line.” Significantly, however, Resolution 242 does not characterize the Green Line as permanent.
Nowhere does Resolution 242 require Israel to withdraw from “all” of “the” territories captured from Jordan, Egypt and Syria. Moreover, the importance of the grammar and syntax used by the drafters cannot be overstated.
As explained by the late Eugene Rostow, the U.S. Undersecretary of State who participated in drafting Resolution 242, the exclusion of the adjective “all” and the definite article “the” was intentional and indicative of the essential meaning.
Resolution 242 … 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 was not to be forced back to the ‘fragile’ and ‘vulnerable’ Armistice Demarcation Lines [‘Green Line’], but should retire once peace was made to what Resolution 242 called ‘secure and recognized’ boundaries …
(“The Future of Palestine,” Rostow, Eugene V., Institute for National Strategic Studies, November 1993.)
Furthermore, the black letter of Resolution 242 applies to incorporated states. It does not mention the Palestinians because they did not constitute a sovereign state involved in the conflict.
Whereas Resolution 242 does mention “refugees,” the term as used refers equally to Jews and Arabs who lost their homes during the war in 1948. It does not apply to a displaced Palestinian people whose national existence is more political than historical.
In light of the foregoing, Israel’s acquisition of Judea and Samaria was lawful and appropriate. Despite the UN’s attempts to delegitimize Israeli actions by promulgating ridiculous resolutions ex post facto, her claim to Judea and Samaria is supported by established legal principles.
So what about the Refugees?
The United Nations Relief and Works Agency (“UNRWA”) defines the term “refugee” in a historically disingenuous manner. Unlike relief organizations that seek to ameliorate the condition of wartime refugees through resettlement, UNRWA’s sole purpose is to maintain the statelessness of Arabs who became refugees in 1948 and their descendants, regardless of whether they now live in Judea, Samaria, Gaza, Jordan, Lebanon or Syria and whether they or their forebears came from Egypt, Syria, Algeria or elsewhere.
According to UNRWA, “Palestinian” refugees are those Arabs who: (a) established residency within Mandate territory between June 1946 and May 1948; (b) lost their homes and livelihoods during the 1948 War; and (c) reside in areas where UNRWA services are available. Unlike any other prior refugee group, their status is passed on to their descendants.
No similar agency was created to serve the needs of the nearly 800,000 Jews who were expelled from Arab-Muslim lands in 1948 and dispossessed of their assets without compensation. Most of these Jews were taken in by Israel with no assistance from the UN, and they ceased to be refugees.
UNRWA’s novel definition begs the question of how refugee status could be based on a mere two-year minimum residency requirement if the Palestinians are truly descended from people who inhabited the land for hundreds of generations. These people were not required to be native born or even descended from indigenous forebears to be considered refugees; and in fact most were immigrants themselves or the progeny of immigrants.
Moreover, they were not expelled from an existing country that exhibited any trappings of sovereignty or national character. Indeed, no country existed between the Jordan and the Mediterranean from the time of the Roman conquest until Israel’s independence. In contrast, there was continuous Jewish habituation in Judea and Samaria since antiquity, as well as in Gaza and Jerusalem, where Jews constituted the majority for generations.
Where does the Levy Report Fit in?
The Levy Report was intended to address the legality of so-called “outposts” in the territories; and though it was critical of government action in establishing some of these outposts, it nonetheless found them to be legal under international law.
As discussed by Kenneth Levin in a Jerusalem Post op-ed:
The Levy Report’s findings should hardly have been surprising. The right of Jews to settle in Judea and Samaria is founded on grounds much firmer than simply arguments that the Fourth Geneva Convention does not apply to settlements because these communities do not entail forced transfer of populations. Such arguments, while entirely sound, merely offer a generic basis for maintaining that settlements are not contrary to international law.
(“The Levy Report: A Vital Beginning,” Kenneth Levin, Jerusalem Post, 11/01/12, athttp://www.jpost.com/Opinion/Columnists/Article.aspx?id=290160.)
Most significantly, the Levy Report concluded that Jewish towns in Judea and Samaria do not constitute “occupation.” It also found that these communities do not violate the Fourth Geneva Convention because they did not involve forced population transfers or territory that had been seized from a lawful, sovereign owner.
The report also took note of the legal precedent set forth in San Remo and the League of Nations Mandate. In their day, San Remo and the Mandate echoed prevailing international recognition of the Jews’ connection to their homeland. Because the provisions of San Remo and the Mandate were preserved in Article 80 of the United Nations Charter, this consensus became UN policy.
Demography Favors Annexation or the Assertion of Israeli Sovereignty
Though the Oslo Process is moribund, it established three administrative divisions (Areas A, B and C) that may actually be useful in making Israel’s case for sovereignty. In particular, Area C comprises approximately 60% of Judea and Samaria and has a Jewish population exceeding 350,000, compared to an Arab population calculated only in the tens of thousands. It is under Israeli control and buttresses the greater Jerusalem neighborhoods that contain 250,000 or more Jewish residents.
Despite propaganda warnings of a Palestinian demographic time bomb, Jews comprise the majority in the territories under Israeli control and are not likely to be dispossessed. There is no doubt that these territories were historically Jewish or that the Arab-Muslim population accrued largely through immigration during the late nineteenth to mid-twentieth centuries.
Today Jews outnumber Arabs two-to-one when Israel and the territories she controls are combined; and because birthrates are increasing among Jews and declining among Arabs, the Jewish majority will only increase in the future. The Jewish population in Israel proper is also growing, and Jews constitute the majority in Jerusalem – as they have for generations. The supposed demographic threat to Jewish hegemony is propaganda, particularly as it relies on doubtful census statistics that overstate the Arab population by as much as half.
Based on demographics and legal precedent, a growing number of Israelis favor some form of annexation or extension of sovereignty in Judea and Samaria. Indeed, incorporating lands that were part of ancient Israel would coincide with the vision articulated by San Remo and the Mandate.
Perhaps most important – and as duly noted in the Levy Report – Jewish habitation in Judea and Samaria does not constitute “occupation” under any definition. Rather, it is consistent with the law recognized by San Remo and the Mandate and adopted by the United Nations through Article 80 of the UN Charter.
Can Israel Act Unilaterally?
Whether Israel continues with a farcical peace process or decides to act unilaterally, she will likely suffer international repercussions if she offers anything less than a Palestinian state based on the 1949 Armistice Line and a divided Jerusalem. Such a state, however, would compromise her sovereignty and security. If Israel is to assure her national integrity, she must be prepared to put her interests first and formulate strategies for dealing with the international fallout. For example, she should work towards energy self-sufficiency and expand her economic and strategic relationships with nations that are interested in her high-tech industry.
Why History Really Matters
Now, you may be asking why all this information is even relevant. After all, for those who believe in Jewish Scripture, Israel’s raison d’etre begins and ends with the Covenant. Nevertheless, objective history, legal precedent and demography are essential for making Israel’s case to a world that may not share the same theological outlook. And though these justifications are derived from secular sources, they do not detract from the religious integrity of those who believe in the Jews’ unbroken covenant with the Almighty.
For nearly 2,000 years, Jews yearned for the reestablishment of their ancestral nation, and this yearning was expressed affectingly by the following words from Psalm 137:
If I forget thee Oh Jerusalem, let my right hand wither, let my tongue cleave to my palate if I do not remember you, if I do not set Jerusalem above my greatest joy.
As is turns out, there are also historical antecedents, legal precedents and demographic realities that validate this yearning and legitimize Israel’s incarnation as a modern, political state.
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