Posted on Sun, June 24, 2012 at 15:36 pm CET
By Eyal Schwartz
Originally published in the JewishPress.com.
Former Justice Edmond Levy’s committee report declares Israel’s legal right to own Judea and Samaria. (Photo Credit: Photo by Kobi Gideon / Flash90)
Judea and Samaria are not under occupation rule. This is the central finding of the “Outposts Committee” which was appointed to examine the legal status of Israel in Judea and Samaria, according to the daily Makor Rishon. The committee members, former Supreme Court Justice Edmond Levy, Circuit Judge Techia Shapira and jurist Dr. Allan Baker, this week have concluded the writing of their report which suggests adopting a new and old judicial framework regarding Israel’s status in Judea and Samaria.
The committee analyzed the historic and legal background of Judea and Samaria and concludes that the belligerent occupation approach must be discarded as reflecting Israel’s status in those areas. According to the committee’s approach, Judea and Samaria were in a judicial vacuum before the Six Day War. The reason was that the Kingdom of Jordan, which held those territories, did so against the rule of international law, and its sovereignty over them was recognized solely by Great Britain. Since Jordan was not the legal sovereign, the report argues, the territories cannot be defined as occupied in the legal sense of the word.
In addition, the committee offers a string of arguments showing that Israel itself has a legal connection to those territories, which is another reason why it is not an occupier.
The 90 page report, including addenda, discusses at length the issue of the outposts. Levy, Baker and Shapira fundamentally reject the legal line used by Attorney Talia Sasson in her report on the outposts. To their understanding, the vast majority of outposts can be defined as legal, since they are within the master planned areas of legal settlements whose establishment was approved by the government.
[…]
With the conclusion of the committee’s work the ball returns to the court of Prime Minister Netanyahu and Justice Minister Ne’eman, who ordered the report. Prior to the committee’s appointment the Attorney General informed Netanyahu that the judiciary is not obligated to follow its conclusions. Netanyahu told committee members that he wishes to read the report before deciding on his next steps.
Read full article here [JewishPress].
Outposts Committee Report: Judea and Samaria Are Not Occupied Territories
Published: June 24th, 2012
Former Justice Edmond Levy's committee report declares Israel's legal right to own Judea and Samaria.
Photo Credit: Photo by Kobi Gideon / Flash90
Photo Credit: Photo by Kobi Gideon / Flash90
Judea and Samaria are not under occupation rule. This is the central finding of the “Outposts Committee” which was appointed to examine the legal status of Israel in Judea and Samaria, according to the daily Makor Rishon. The committee members, former Supreme Court Justice Edmond Levy, Circuit Judge Techia Shapira and jurist Dr. Allan Baker, this week have concluded the writing of their report which suggests adopting a new and old judicial framework regarding Israel’s status in Judea and Samaria.
The committee analyzed the historic and legal background of Judea and Samaria and concludes that the belligerent occupation approach must be discarded as reflecting Israel’s status in those areas. According to the committee’s approach, Judea and Samaria were in a judicial vacuum before the Six Day War. The reason was that the Kingdom of Jordan, which held those territories, did so against the rule of international law, and its sovereignty over them was recognized solely by Great Britain. Since Jordan was not the legal sovereign, the report argues, the territories cannot be defined as occupied in the legal sense of the word.
In addition, the committee offers a string of arguments showing that Israel itself has a legal connection to those territories, which is another reason why it is not an occupier.
The 90 page report, including addenda, discusses at length the issue of the outposts. Levy, Baker and Shapira fundamentally reject the legal line used by Attorney Talia Sasson in her report on the outposts. To their understanding, the vast majority of outposts can be defined as legal, since they are within the master planned areas of legal settlements whose establishment was approved by the government.
The committee further recommends that the Nature and Parks Authority declare thousands of acres in the Judea and Samaria as national parks, to facilitate the preservation of their environmental resources.
With the conclusion of the committee’s work the ball returns to the court of Prime Minister Netanyahu and Justice Minister Ne’eman, who ordered the report. Prior to the committee’s appointment the Attorney General informed Netanyahu that the judiciary is not obligated to follow its conclusions. Netanyahu told committee members that he wishes to read the report before deciding on his next steps.
The next phase is expected to include bringing the report before the Ministers Committee on the Settlements, but the main question remains whether Netanyahu and Ne’eman will be able to force the judiciary system to adopt its recommendations.
It should be noted that committee members belong to Israel’s judicial elite. Chairman Edmond Levy was considered unique among Supreme Court justice in his sensitivity to social issues. Techia Shapira is a sitting Circuit Judge in Tel Aviv. Dr. Allan Baker is an expert on international law and served as legal consultant to the foreign office. Among other things, he participated in formulating the Oslo Accords.
13 Responses to “Outposts Committee Report: Judea and Samaria Are Not Occupied Territories”
- http://myrightword.blogspot.co.il/2012/06/liberation-from-aaron-baraks.html more info.
- This needs to be read and shared. Anyone who knows history can only reiterate that land held under Jordanian control cannot be considered "occupied" by Israel.
- Israel gadol
- The land of Israel–is God given–and belongs exclusively to the Jews!
- The problem is not in the land, but in the people.
- It's written that "According to the committee’s approach, Judea and Samaria were in a judicial vacuum before the Six Day War. The reason was that the Kingdom of Jordan, which held those territories, did so against the rule of international law"…. so how can anyone get from it that the land cannot be occupied by Israel? Prior to that it was a Jewish land.
- Judea and Samaria are the eastern part of the State of Israel!
- "the Kingdom of Jordan, which held those territories, did so against the rule of international law, and its sovereignty over them was recognized solely by Great Britain."This is not entirely true. While only two countries (the UK and Pakistan) recognized the *de jure* annexation of Judea and Samaria by the Hashemite Kingdom of Jordan. But in fact, every country in the world respected the Jordanian passports granted to its residents, and accepted the civilian government there — including Medinat Yisrael, which continued to have Jordanian civil servants perform governmental functions, including schools with Jordanian textbooks. Israel even accepted the Jordanian government's expropriation of private property such as the Rockefeller Museum. Essentially, the world — including Israel — recognized the *de facto* rule by Jordan.
- Also, who cares? It's not Israel vs. Jordan, as Jordan no longer claims the WB. It's Israel vs. Palestine and the entire world accepts the Palestinian right to the WB, with Israel's being entitled to some minor territorial modifications.
- In 1967, then legal counsel to the Israeli Ministry of Foreign Affairs Theodor Meron said that not only was it an occupation, but it was a violation of the Geneva Conventions. My how 45 years of war crimes changes one's tune.http://southjerusalem.com/wp-content/uploads/2008/09/theodor-meron-legal-opinion-on-civilian-settlement-in-the-occupied-territories-september-1967.pdf
- prior to 1948 when jordan took possession of the west bank, the land was NOT "jewish," it was ENGLISH. and those territories were stipulated to be part of the palestinian partition.
- according to the torah, the land belongs to the descendants of abraham, who are not exclusively jews!
- This ruling also ignores and invalidates every single international agreement relating to the Israeli-Palestinian conflict Israel has ever signed.
Posted in: Arab-Israeli Conflict • Gaza and Westbank • History • International Law • Israel • Israeli–Palestinian Conflict •Jordan
Liberation from Aaron Barak's Belligerent Occupation
In an April interview, Talia Sasson said in an interview with TOI's David Horwitz that
Well, Makor Rishon this past Friday has reported that the special experts' committee of the outpost/satellite communities is adopting the legal position which I, and others, have been promoting for years.
On its front page, we can read that the committee members, former Supreme Court Justice Edmund Levy, District Court Judge Techiya Shapira and former Ambassador and Foreign Ministry Legal Advisor Allan Baker will be recommending to the Prime Minister that the opinion of former Supreme Court President Justice Aaron Barak be rejected.
That opinion, which accepted the clearly wrong concept that Judea, Samaria and Gaza were to be considered as "belligerently occupied", (see: "...such also is the law of belligerent occupation, in the framework of which Israel acts in the occupied territories" and in 2002's HCJ 7015 & 7019/02: Judaea and Samaria and the Gaza Strip are effectively one territory subject to one belligerent occupation by one occupying power, and they are regarded as one entity by all concerned, as can be seen, inter alia, from the Israeli-Palestinian interim agreements" although revpages 615-616 here but see Howard Grief here) may finally be overruled and the correct, just and correct legal standing of those areas will be established.
Those areas of the former Mandate for Palestine were illegally occupied by Jordan. They cannot have been "occupied" by Israel as they were a part of the territory to become the Jewish National Home. The state and waste lands in those regions were to be used, if not privately owned, to facilitate "close Jewish settlement". And as I have been championing, all property that was a gratis gift of the rulers of Jordan and upon which no building was built, no house was constructed, no field was planted and harvested nor any taxes paid should be returned to its previous legal status as state land and we have solved the articially created problem of "illegal construction".
As the Jewish Press has it, too:
Could it be that we are on the brink of a major legal revolution, or, actually, a restoration?
A restoration of national sovereignty, of national standing, of national pride?
if Edmund Levy’s committee decides to tell the government that the territory of Migron can be taken despite the Supreme Court’s decision and they decide to do it, who knows? They can do anything. It’s 11 o’clock in the morning now? They can say it’s 11 at night. What can I tell you? I have no words.
Well, Makor Rishon this past Friday has reported that the special experts' committee of the outpost/satellite communities is adopting the legal position which I, and others, have been promoting for years.
On its front page, we can read that the committee members, former Supreme Court Justice Edmund Levy, District Court Judge Techiya Shapira and former Ambassador and Foreign Ministry Legal Advisor Allan Baker will be recommending to the Prime Minister that the opinion of former Supreme Court President Justice Aaron Barak be rejected.
That opinion, which accepted the clearly wrong concept that Judea, Samaria and Gaza were to be considered as "belligerently occupied", (see: "...such also is the law of belligerent occupation, in the framework of which Israel acts in the occupied territories" and in 2002's HCJ 7015 & 7019/02: Judaea and Samaria and the Gaza Strip are effectively one territory subject to one belligerent occupation by one occupying power, and they are regarded as one entity by all concerned, as can be seen, inter alia, from the Israeli-Palestinian interim agreements" although revpages 615-616 here but see Howard Grief here) may finally be overruled and the correct, just and correct legal standing of those areas will be established.
Those areas of the former Mandate for Palestine were illegally occupied by Jordan. They cannot have been "occupied" by Israel as they were a part of the territory to become the Jewish National Home. The state and waste lands in those regions were to be used, if not privately owned, to facilitate "close Jewish settlement". And as I have been championing, all property that was a gratis gift of the rulers of Jordan and upon which no building was built, no house was constructed, no field was planted and harvested nor any taxes paid should be returned to its previous legal status as state land and we have solved the articially created problem of "illegal construction".
As the Jewish Press has it, too:
The 90-page report, including addenda, discusses at length the issue of the outposts. Levy, Baker and Shapira fundamentally reject the legal line used by Attorney Talia Sasson in her report on the outposts. To their understanding, the vast majority of outposts can be defined as legal, since they are within the master planned areas of legal settlements whose establishment was approved by the government. The committee further recommends that the Nature and Parks Authority [headed by former Yesha Council senior member and Gush Etzion Regional Council Chairman Shaul Goldstein - YM] declare thousands of acres in the Judea and Samaria as national parks, to facilitate the preservation of their environmental resources. With the conclusion of the committee’s work the ball returns to the court of Prime Minister Netanyahu and Justice Minister Ne’eman, who ordered the report.
Could it be that we are on the brink of a major legal revolution, or, actually, a restoration?
A restoration of national sovereignty, of national standing, of national pride?
Think-Israel.org | By Wallace Edward Brand
Israeli Sovereignty Over Jerusalem, Judea and Samaria
A summary of facts in support of Israel’s lawful exercise of sovereignty over East Jerusalem, Judea and Samaria
It is widely accepted, but not correct, that the West Bank belongs to the local Arabs in Palestine who call themselves Palestinians. Israel’s position has not recently been fully stated. At most, it is said that no one has sovereignty over the West Bank. A better view is that the Jews obtained a beneficial interest in sovereignty over all of Palestine in 1922 by enactment of the Palestine Mandate,[1] entrusting it to Britain and on the abandonment of its trusteeship by Britain in 1948,[2]Israel obtained the political rights over which it theretofore had had a beneficial interest so that it had sovereignty under International Law as granted by the British Mandate. Later, in 1924, the British Mandate became the domestic law of England and the US as I explain below.
In 1920 the Ottoman Empire in Article 95 of the Treaty of Sevres,[3] granted its sovereignty in Palestine, which had been undisputed for 400 years, to a trustee in trust for a National Homeland for the Jews. The trustee selected by the League of Nations was Great Britain. (Sovereignty, i.e. political rights, over the other 99% of the lands captured from the Ottomans in the Middle East and the Maghreb was allocated to Arabs and Muslims.) It was in fact expected that the Jewish Homeland would eventually become a state when immigration gave the Jews a majority of the population, but at the time the Jews were incapable of exercising sovereignty although the “Jewish Agency” was exercising administrative authority of wide scope. In the ’20s, the US was not a member of the League but a joint resolution of Congress on June 30, 1922 adopted and approved the League of Nations selection of trustee and its grant of authority.[4]
It all started in 1917 when Lord Balfour, the British Foreign Secretary, issued his famous “Declaration”[5] with the consent of the cabinet. In it he said that after WWI, when the Allies were victorious, Palestine should be designated a National Homeland for the Jews. The political rights, i.e. sovereignty over Palestine should be held in trust for the Jews until they were capable of exercising sovereignty. There was considerable sympathy among many Christian Evangelicals in England who thought the Jews should be restored to Palestine. British workmen, however, had complained that Jews were flooding in to England and taking their jobs and working for less. This led to the Aliens Act of 1909 restricting Jewish immigration into England.[6] But the British recognized that the oppression of the Jews in Russia and Poland was very bad and they needed some place to go. And England also desired that the Jews in Russia influence the new Marxist government to remain in WWI on the side of the Allies.
Chaim Weitzman, an ardent Zionist and also a good chemist had helped Britain in the war by developing an inexpensive method of manufacturing acetone used in cordite for munitions and had given it to the British. It was a great help to the British war effort.
WWI ended with the Allies having captured all the Ottoman Empire lands in the Middle East and North Africa (the Maghreb). In a conference in 1920 at San Remo,[7] the Allies adopted Lord Balfour’s declaration as Allied Policy and it was sent to the League of Nations for a proclamation called “The British Mandate” that became International Law.[8] The UN later called the same arrangements “trusteeships”.[9] It restricted the Jews, when they did exercise sovereignty, from doing anything that would impair the civil or religious rights of the Arabs but was silent as to the political rights of the Arabs. In the San Remo Conference it was also decided to give Arabs and Muslims sovereignty over 99% of the lands captured from the Ottomans. Palestine was the last 1%.
The Mandate Law also became the domestic law of the UK and the US in 1924 when the Mandate became the subject of the Anglo American Convention of 1924.[10] Perfidious Albion did not maintain its trust for very long. Circumstances changed, British interests changed, and the British Government also changed. Great Britain was charged in the press with giving sovereignty over Palestine to three different groups, the French in the Sykes-Picot agreement,[11] the Arabs in the McMahon-Hussein correspondence,[12] and the Jews in the Balfour Declaration.[13] The latter was adopted by the WWI allies in the conference at San Remo and in 1924 by the League of Nations as the British Mandate. Careful scrutiny would show the charges were not true but rarely does the press give anything careful scrutiny and world opinion was much against England.
England had installed Feisal as the King of Syria.[14] After the Battle of Maysalun, in which the French Armed Forces defeated the Syrian Army the French deposed Feisal.[15] Abdullah, Feisal’s brother, was furious. He marched his troops from their home in the Hejaz (in the Arabian Peninsula) to Eastern Palestine and made ready to attack the French in Syria. Churchill did not want war between the Arabs and the French. He gave Feisal the Kingdom of Iraq as a consolation prize[16]and gave Abdullah Eastern Palestine in violation of the British Mandate.[17] The Mandate had prohibited the Mandatory from ceding any land to a foreign nation. In Article 25 it approved delaying settlement East of the Jordan River, but prohibited the Mandatory Power from discriminating among races.[18] The land East of the Jordan River became TransJordan and then Jordan and the Mandatory, despite the specific terms of the mandate, prohibited Jews from settling there.
The publicity generated about Lawrence of Arabia and the Arabs help to the Allies by Lowell Thomas contributed to the decision[19] but in fact the story was overblown to sell newspapers. The Arabs local to Palestine, unlike the Arabs from the Arabian Peninsula that had been led by Lawrence, had declined the British offer of political self determination and had preferred to fight for the Ottomans who ruled from Constantinople. According to Winston Churchill, in his Remarks in the House of Commons opposing the White Paper of 1939,[20] “The Palestinian Arabs, of course, were for the most part fighting against us, …” “However the Jews assembled several battalions of Jewish soldiers that fought alongside the British in Palestine.”
At that point the Jews had, de facto, lost 77% of their Mandated beneficial right to sovereignty in Palestine. Only 23% of Palestine was left.
Article 80 of the UN Charter[21] had preserved the rights that had been granted by the League of Nations prior to its demise. In 1947 nevertheless, the UN recommended (not a grant inconsistent with the Mandate) a partition that offered a part of the area West of the Jordan (a part of the 23% remaining) to the Jews, in effect, releasing that part of the trust res to them, and the remainder to the local Arabs although the latter was unauthorized by the Mandate.
In the San Remo Resolution, the Allies agreed
“To accept the terms of the Mandates Article as given below with reference to Palestine, on the understanding that there was inserted in the process-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;”[22]
What were those rights? The Mandate preserved the civil and religious rights of the local Arabs but did not create any political rights for them. It did not and could not “preserve” any political rights in Palestine for local Arabs in Palestine as they had never in history had any. As to political rights, the local Arabs were no worse off than they were under the Ottoman rule from 1520 to 1920, the British suzerainty from 1920 to 1948, or the Jordanian rule from 1948 to 1967.
In 1948, the Jews accepted the UN recommendation and promptly proclaimed independence.[23]The Arabs declined. They wanted all of the land. As noted above, in 1920 the Arabs and Muslims had been awarded political rights in 99% of the captured Ottoman land. Political rights for only 1%, Palestine, was awarded to the Jews.
Under those circumstances, what can be said about the territory, recommended to be awarded to the Arabs but which they declined? After Churchill gave Transjordan to Abdullah, the Arabs and Muslims had 99.77% of the captured Ottoman lands in the Middle East and the Maghreb and the Jews only 0.23%.[24] But the Arabs didn’t want the Jews to have any because it violated Islam to have any inroads on the Dar-al-Islam.[25] They engaged in jihad against the Jews and the Arab Higher Committee brought in the Armies of the surrounding Arab and Muslims States. In 1948 the Trustee had abandoned its trust and its suzerainty was thereby ended. Therefore International Law under the doctrine of “acquired rights” favors the claim of Israel over the remaining trust res, i.e. political rights over Palestine, i.e. sovereignty including sovereignty over the West Bank granted by the League of Nations.[26]
“Howard Grief’s excellent exposition Legal Foundation and Borders of Israel under International Law and his shorter articles[27] are basic to the subject matter at hand. I have been guided by his work. He states that the “acquired rights” doctrine in International Law is codified by the 1969 Vienna Convention on the Law of Treaties. It provides, in Article 70 1. (b) for the consequences of the termination of a treaty.”Unless the treaty otherwise provides or the parties otherwise agree, the termination of a treaty under its provisions or in accordance with the present Convention: does not affect any right, obligation or legal situation of the parties created through the execution of the treaty prior to its termination.
Was the National Homeland for the Jews referred to in the Mandate intended to be a proposed Jewish State encompassing all of Palestine, or a smaller enclave within Palestine?
The Report of the Anglo-Anglo American Inquiry held in 1946 suggests in paragraph 1 of Chapter V [Jewish Attitude] that the demand for a Jewish State goes beyond the policy of Lord Balfour and the grant of the League of Nations in the British Mandate. But its only justification for that view, according to its report, was its claim that in late 1932 the chairman of the Jewish Agency, Nahum Sokolow had disowned that view.
The Anglo American inquirers overlooked the following history:
By 1922 the British Government’s interests had changed and the government had changed. It was defending itself from charges that it had conferred political rights to the same land to the French, the Arabs and the Jews in three different agreements, the Sykes-Picot agreement, the McMahon-Hussein correspondence, and the Lord Balfour Declaration. So in 1922, Churchill, in a White Paper, tried wiggle out of England’s obligation by hinting broadly that a “national home” was not necessarily a state. However in private, many British officials agreed with the interpretation of the Zionists that a state would be established when a Jewish majority was achieved.[28]
In the British cabinet discussion during final consideration of the language of the Balfour Declaration, in responding to the opposition of Lord Curzon, who viewed the language as giving rise to the presumption that Great Britain favored a Jewish State, Lord Balfour stated:
“As to the meaning of the words ‘national home’, to which the Zionists attach so much importance, he understood it to mean some form of British, American, or other protectorate, under which full facilities would be given to the Jews to work out their own salvation and to build up, by means of education, agriculture, and industry, a real center of national culture and focus of national life. It did not necessarily involve the early establishment of an independent Jewish State, which was a matter for gradual development in accordance with the ordinary laws of political evolution.” The key word here was ‘early'; otherwise, the statement makes it quite clear that Balfour envisaged the eventual emergence of an independent Jewish state. Doubtless he had in mind a period somewhat longer than a mere thirty years; but the same could also be said of Chaim Weitzman.”[29]
According to Lloyd George, one of Churchill’s contemporaries, for example, the meaning was quite clear:
“There has been a good deal of discussion as to the meaning of the words “Jewish National Home” and whether it involved the setting up of a Jewish National State in Palestine. I have already quoted the words actually used by Mr. Balfour when he submitted the declaration to the Cabinet for its approval. They were not challenged at the time by any member present, and there could be no doubt as to what the Cabinet then had in their minds. It was not their idea that a Jewish State should be set up immediately by the Peace Treaty without reference to the wishes of the majority of the inhabitants. On the other hand, it was contemplated that when the time arrived for according representative institutions to Palestine, if the Jews had meanwhile responded to the opportunity afforded them by the idea of a National Home and had become a definite majority of the inhabitants, then Palestine would thus become a Jewish Commonwealth. The notion that Jewish immigration would have to be artificially restricted in order to ensure that the Jews should be a permanent minority never entered into the heads of anyone engaged in framing the policy. That would have been regarded as unjust and as a fraud on the people to whom we were appealing.”[30]
If there is any further doubt in the matter, Balfour himself told a Jewish gathering on February 7,1918: “My personal hope is that the Jews will make good in Palestine and eventually found a Jewish state. It is up to them now; we have given them their great opportunity.”[31]
A “Mandate” and a “Trusteeship” were essentially the same suzerainty. The mandate name was abandoned by the UN in favor of “trusteeships” in order not to have the stigma of the moribund League of Nations to carry in its baggage.
Following an opinion of the renowned international lawyer Julius Stone that focused on the settlement question,[32] President Reagan and succeeding Presidents through George W. Bush maintained a US view that the Jewish Settlements in the West Bank were legal but as a policy matter should be discouraged because of their tendency to discourage the Peace Process. President Obama while continuing the position on policy has not specifically stated his view on legality of the settlements.
As to Jerusalem, East Jerusalem fell in 1948[33] to an attack of the Arab Legion supplied and trained by the British and led by Sir John Bagot Glubb frequently referred to as “Glubb pasha”. The Arab Legion later became the Jordanian Army.
The Jordanians demolished 58 synagogues and their contents, uprooted the tombstones of Jewish cemeteries, and used them for paving or building latrines, and built a latrine against the Western Wall of the Temple Mount, the single most holy site for Jews.[34] They expelled all the Jewish inhabitants of East Jerusalem and it became, as Adolph Hitler liked to say, judenrein or cleansed of Jews. In 1967 in the Six Day War, Israel drove the Jordanians east to the Jordan River and became in control of East Jerusalem.[35] They did not use their conquest to deprive the Moslems access to their holy sites in East Jerusalem as the Jordanians had done to the Jews and Christians.
Are the Jews Judaizing the city of Jerusalem? How can that be? The Jewish population was 74% in 1967 and now it is down to 66% with the Arab population growing from 23% to 32% and the Christian population, currently 2%. However the Jews are going back into East Jerusalem where they had been driven out in 1948. If anyone is doing ethnic cleansing, it is the Arabs. It appears to the Israelis, therefore, that Obama and Ban Ki Moon wants to keep East Jerusalem judenrein.
In fact you read in the news and hear on TV a lot about Jewish settlements outside of Jerusalem, but have you ever seen or heard a reference to new Arab settlements there? Since 1950 more than twice as many new settlements have been built by Arabs in the West Bank as have been built by Jews,[36] totally ignored by the press. They fill them with Lebanese, Iraqis, Jordanians and Egyptians, and mirabile dictu they are Palestinians. I think the Arabs must have changed the name of the area from Judea and Samaria to the “West Bank” so they wouldn’t look silly in claiming that the Jews were illegally settling in Judea.
Wallace Edward Brand is a retired lawyer living in Virginia.
End Notes
[1] See the original documents in the Avalon Project at Yale University.
[2] Mideastweb.
[3] Hri.org.
[4] A general chronology is in Hertz, “Mandate for Palestine“, which cites Palestine Royal Commission Report, July 1937, Chapter II, p. 31. The discussion by the international lawyer, Jacques Gauthier, is at: TV interview.
[5] Avalon.law.yale.edu; some context is discussed in Absoluteastronomy.com.
[6] Nationalarchives.gov.uk; For context, see Movinghere.org.uk.
[7] Lib.byu.edu; what the Arabs got is discussed in Palestinefacts.org.
[8] Same as the Palestine Mandate. See [1]
[10] My Right Word: That Anglo-American Convention of 1924; Think-Israel.org.
[12] Jewishvirtuallibrary.org includes the text of the letters; Mideastweb.org also includes text and maps.
[13] See [5]; also “What did the British promise to the Jews?”, Palestinefacts.org.
[14] Answers.com.
[15] Statemaster.com.
[16] Answers.com; Wnd.com which also discusses Lawrence of Arabia’s role in creating (Trans)Jordan.
[17] Eretzyisriel.org; see also [16].
[18] Mfa.gov.il; See also [4] and Middleeastfacts.org.
[20] Wikipedia.
[21] Yale.edu. The site contains all the articles of the UN Charter.
[22] Wikipedia; also Ruthfullyyours.com.
[23] Timesonline.co.uk.
[24] Masada2000.org.
[25] Answers.com.
[26] Basic general concept of trust res is explained in Legal-dictionary.thefreedictionary.com; See also: Shifftan.gifting; Beres.ramificationspalstate; and belman.israelownsamariajudea.
[27] Howard Grief, The Legal Foundation and Borders of Israel under International Law: A Treatise on Jewish Sovereignty over the Land of Israel (ISBN-10: 9657344522). See also his articles at:Grief.4thgenevaconvention and Giref.occupationmyth.
[28] Peter Mansfield, The Arabs London, Penguin Books. 1922, Pp 176-77.
[29] Ronald Sanders, The High Walls of Jerusalem, p. 611.
[30] Lloyd George Memoirs, pp 736-7, Mideastweb.org.
[31] Sanders, Ronald. (Op cit, p 652).
[32] Citations from Stone are in Belligerentoccupation; Israelsimage; Uprooting;4thegenevaconvention; Gifting; Occupation.
[33] Historynet.com.
[35] Sixdaywar.org.
[36] Eretzyisroel.org; Online.wsj.com.
7 Comments to “Israeli Sovereignty Over Jerusalem, Judea and Samaria”
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Mon, Nov 14, 2011 | By Jared Feldschreiber
Binding and Non-Binding Agreements Pertaining to the Arab-Israeli Conflict
International law has played a central role in attempting to solve the Arab-Israel conflict but their respective passions, cultural differences, and distinct narratives of the two sides have often taken precedence over it.
The conflicting personal narratives and ancestral hostilities with the Israel-Arab conflict override the existing agreements and various treaties that were proposed by intergovernmental organizations, like the United Nations. It remains to the individuals of the countries themselves to generate peaceful reconciliation to the conflict. As a result, the merits and power of international law has often fallen by the way side. While Israel today is an open and pluralistic society, Palestinian society remains fragmented, and as a result their national aspirations of a Palestinian State remains unfulfilled. The Palestinian narrative remains steadfast that the early 20th century “Zionist Project” was a result of imperialism, which vanquished their aspirations. This essay will prove that international law has helped to provide to, at the very least, a worthwhile framework for a peaceful solution to this festering conflict, but it remains unlikely that the participants involved will be able to temper their deeply-rooted passions and ideologies, to achieve negotiations.
The sovereign claims to Jewish and Arab territory remains the main thrust of division between these two cultures. For over three-thousand years, the Jewish people were defined by their identity, their religion (Judaism), their language (Hebrew), all the while adhering to their particular legal code. They were shaped by legal tenets of the Bible, and an understanding that for centuries they were a people in exile, particularly until the Roman Empire, which banished them, and had ultimately named this territory Palestine. In late 19th and early 20th century, there existed a growing Arab and Jewish presence in Palestine. The Zionists sought to rebuild the ancient ancestral Jewish homeland. The Arabs and Jews clashed as a result; riots ensued between these new immigrants and Palestinian Arabs who were living there. After the Ottomans ceded the territory at the end of World War I, the allies did not annex the territories but agreed to administer them according to a Mandate negotiated with the League of Nations. “Palestinian” identity would not be forged until the 1948 War, but many Palestinian Arabs lived there years earlier.
The territorial concerns of the Israeli-Arab conflict traces back to the end of the Ottoman Empire. As stated, the Palestinian Arabs instigated riots against new Jewish immigrants. This was coupled with the emergence of the Zionists’ attempt to call for a voluntary or compulsory transfer of the Arab population. While under the British Mandate, there was a growing call for a Jewish state within Palestine. The Balfour Declaration became an informal recognition, and by the 1922 League of Nations Mandate for Palestine became valid in accordance with international law. This was insofar as it became binding by the United Nations after the Balfour Declaration, which stated in a letter that some in the British government had been “in favor of a Jewish national home in Palestine.” There was no legal language behind the Balfour Declaration, but the 1922 League of Nations Mandate for Palestine, actually set in motion legal, binding and ratified boundaries to be set up for the Jewish Homeland within Palestine. It set up some boundaries for a Jewish national home, how ever ambiguous and not clearly defined as what would be created twenty-five years later. Particular articles specifically made mention of territory to be allocated to the Jews, separate from the Arabs, which would be in accordance under international law.
The League of Nations Mandate of Palestine in 1922 continues to have relevance today, as the points concerning “what entails a Jewish State” persists, even during its period under British auspices. Legal discussions about settlements, Jerusalem, refugees, and permanent boundaries, were not discussed then but this was still a ratified and binding commitment with far-reaching consequences later on. The British Mandate for Palestine of 1922 was the first legally binding commitment to help promote an eventual Jewish State. Future resolutions, like the Resolution 181, (Partition Plan of 1947) became a recommendation by the UN, and would not have existed had the League of Nations Mandate been put it into effect twenty-five years prior. The League of Nations Mandate stipulated that “while ensuring that the rights and position of other sections of the population are not prejudiced, the British Mandatory Authorities shall facilitate Jewish immigration under suitable conditions.” During this time, the Arabs already had twenty independent states, while objecting to a Jewish homeland in the Middle East.
Concerning territorial concerns, Resolution 181 was the 1947 UN Partition Plan for Palestine. The British relinquished their rights to the mandate, and subsequently in November 1947, by a two thirds majority, recommended the partition of Western Palestine into three entities; a Jewish state, an Arab state and a separate international entity of Jerusalem. The Jewish leaders accepted the plan, despite only being granted less than 20% of the area of mandatory Palestine. It was rejected outright by all the Arab states in the UN, and by the Arabs living in Palestine.
The Arabs declared war against Israel on May 15, 1948, one day after its declared independence. Israel’s ultimate victory against 6 Arab armies set in motion a host of international law concerns. Up until 1979, when Israel made a historical agreement with Egypt, none of the Arab states agreed upon recognized or accepted permanent borders with the Jewish state. The 1949 Armistice Agreement, signed after the 1948 War, delimited the Armistice Demarcation Lines, called the “Green Line.” Arab states insisted that the “Green Line” should not be given as status to a permanent border. Israel’s peace treaties with Egypt in 1979 and then Jordan in 1994 changed the boundary-lines yet again. Boundaries would remain the main line of contention between Israel and her neighboring Arab states.
As a result of the 1948 War, the area of East Jerusalem came under Jordanian rule. The “Green Line” served as the demarcation between Israel and what was known as the “West Bank of Jordan.” During Jordanian sovereignty of the West Bank, the Arabs had never called for the existence of a Palestinian state. The Palestinian narrative was also shaped by the 6-day War. As a result, the Palestinian Arabs were largely seen by outsiders as people who ought to be entitled to their rights of self-determination. When Israel defeated three Arab armies (Jordan, Syria and Egypt), and retook Jerusalem and captured the West Bank in the 1967 Six-Day War, the Palestinians rights of self-determination was addressed. As a result of the war, the UN Security Council adopted UN Resolution 242, which was a non-binding resolution, but ultimately became accepted by all parties in the conflict.
The particularly vaguely worded language of UN Resolution 242 was cited under Chapter 6 of the UN Charter, dealing with disputes and settlements. Israel’s victory in the 6-Day War radically re-shaped the Middle East map. In its sweeping victory, Israel took control reunified Jerusalem, taking East Jerusalem, areas of the West Bank, Sinai and Gaza Strip from Egypt, and the Golan Heights from Syria. The Resolution was drafted on November 22, 1967 — five months after the war. In order to understand the boundary concerns of the Resolution 242, one needs to understand the 1949 Armistice Lines Agreements. Israel’s occupation of these territories was permissible, and legal, under international law. The 1949 Armistice Lines was a military agreement, and not a legally binding international treaty. The Arab states and Israel did regard it as a binding treaty, albeit a temporary one.
The 1949 Armistice Agreement was merely a cessation of violence that set up the “Green Line” but did not obligate the Arab States or Israel to any future binding commitments. Also Resolution 242 contains the controversial legal language that is open to interpretation: the distinction between “territories,” and “the territories,” as to where Israel must withdraw became impossible to define, as the original document was in English, but since it was also translated in French, lit lead legal confusion as to its proper wording. Also, even though this is the document Palestinians refer today to legitimize their claims to “Palestine,” the Palestinians (as an entity) are also never mentioned in the resolution. Also, the West Bank was never been annexed by Israel, so the Jewish state has suggested they would use this territory as a potential “bargaining chip” for future negotiations.
Today, certain areas in the West Bank are under Israel’s auspices, while other parts are under the supervision of the Palestinian Authority. For their areas controlled in the West Bank, Israel must follow specific international law in how to administer occupied territory. While many in the world community routinely condemn Israel for the illegality of Occupied Palestine, from an international law standpoint, this is a myth: occupation is legal in times of armed conflict, and these specific boundaries for a recognized Palestinian state were never clearly defined by two recognized states. The Security Council themselves never called the occupation as illegal. The legality of the continued expansion of Israeli settlements in the West Bank is perceived as troublesome, but to be sure, the parameters and boundaries of a Palestinian state remain undefined. When a binding commitment is reached between two sides, only then will Israel be obligated to dismantle these settlements, much like it was obliged to do with settlements in Sinai returned to Egypt during the Egypt-Israel Camp David Accords of 1979.
The Palestinians often cite Resolution 194 as the legal basis to which they should be granted a full “right of return” to their ‘ancestral homeland’ of Palestine. About 700,000 Arabs were estimated to flee from Palestine in 1948; to the Palestinians, they were purged out of their land by the Zionists. The Jewish narrative remains that the growing Palestinian refugee problem largely due by an Arab unwillingness to accept the existence of a Jewish state in Palestine. The Zionist narrative is that some of these refugees fled due to a combination of evacuation orders from the Arab side, and their own legitimate fears of expulsion. Neighboring Arab states also refused to absorb them, which exacerbated this crisis. Resolution 194 states that “refugees wishing to return to their homes and live at peace with their neighbors should be permitted to do so at the earliest practicable date.” This is exactly what Israelis routinely point to as flawed, because they are confident these “Palestinian Arabs” will never choose to “live peaceably with their neighbors,” a predominant Jewish State, rather to overwhelm them with population growth.
To the Zionists, the 1948 War was about its existential survival. Palestinian Arab refugees fled at the behest of Arab armies who were assured that they would be protected. Some of the Palestinian Arabs were living in places throughout Palestine, like Safed and in Haifa and Acre. Palestinian Arabs today feel as though their descendents ought to be given a chance to return there under Resolution 194. Clearly, Israel will never recognize such a claim, mostly due to its own legitimate security concerns, but also under international law, this resolution does not grant them this kind of ‘right of return.’ The Palestinians “right of return” was not cited in any declared, official agreements, and even not in the 1993 Declaration of Principles, where it was used opaquely, suggesting that “a just and adequate solution to the refugee crisis should be handled at the right time.”
Israel has contended that Resolution 194 maintains gaping holes, to be tweaked with future talks, but a uniform “right of return” to places where Palestinian Arabs had fled during war, remains unacceptable. The Palestinians, meanwhile, remain adamant that these refugees in war, and should be compensated for, and at the very least, also allowed their right to return to their city (and country) of origin. The rights of self-determination, as envisioned by the UN Charter, remains limited, and apply to those, but not to those in an existing state. Under international law, the Palestinians are currently not part of an existing state. Another claim they make is based on the International Covenant on Civil and Political Rights (ICCPR), stating that “no one shall be deprived of the right of return to his own country.” But this begs the question: “to who’s country?” Palestinian refugees are not, and were never nationals to the state of Israel. A good majority of the refugees moved from homes in what is present day Israel to other territories, so thus if Palestine was their country they have remained in their country. In a twist, the Jewish narrative also points to Jews living in Arab countries as refugees who were never compensated for, and who were forced to leave their own property behind, and with some cases, had special laws that deprived them rights to their own property.
It remains to the individuals of the countries themselves to generate peaceful reconciliation to the festering Israeli-Arab conflict. For instance, Egyptian President Anwar Sadat took the unprecedented and bold step to recognize Israel’s right of existence, just a few years after the 1973 War, to sign a peace treaty with Israel. He was rewarded by Western backing and for a permanent cessation of violence between the two counties. Israel’s peace treaty with Jordan has also been beneficial for both countries, in economic and security concerns.
The future of a Palestinian state remains open-ended because it remains to see whether the Palestinians or the Arab world in general, will recognize a Jewish state in the Middle East. It is also uncertain whether Israel will promote a sincere recognition of the rights and sovereignty to Palestinian national aspirations. In international law and agreements, actors on the world stage must demonstrate good faith in negotiations. International law may help navigate the road toward peace, but the states, and leaders themselves, must act with vision, and look beyond their own deeply-rooted ancestral histories. International law has played a part in solving the Arab Israeli conflict, but as these specific problems persist, there is little hope believing long-standing ideologies will shift anytime soon.
Jared Feldschreiber is a journalist and writer. His articles mostly deal with international affairs, and had spent over a year working in the Jerusalem Bureau with Fox News. Many of his articles have published with different newspapers and journals concerning Israel and American human interest stories. He has his Masters Degree from Tel Aviv University in Security and Diplomacy studies, all the while has contacts with media centers throughout Israel and in America. His articles have appeared with Fox News, American Thinker, Jewish Observer-LA, and other various news outlets.
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