Points to Ponder Number 16 10.9.2014
Following the last ptp where we countered two canards, we now tackle the third as we ponder: is Israel’s “occupation” of Judah and Samaria, the West Bank, indeed illegal thereby making the “settlements” illegal, or is this too a canard so oft repeated that we believe it without checking it? As with my previous ptp the comments that follow are based on the research of two renowned experts on international law, Julius Stone and Stephen Schwebel. Read the full article
See another article on the same subject by Eugene W. Rostow which appeared in The New Republic.
Although it is clear from numerous public declarations by the Palestinian leadership, whether the PA, Fatah or Hamas, that their ultimate aim is a Palestinian state which includes Israel in its pre-June 1967 borders we will not discuss the three thousand years of Jewish history in the Land of Israel, nor will we go back to the 1917 League of Nations Mandate which stated that its purpose was “the establishment in Palestine of a national home for the Jewish people in Mandatory Palestine“, which included not only present day Israel, but also the West Bank and Transjordan.
“Many believe that the Palestine Mandate was somehow terminated in 1947, when the British government resigned as the mandatory power. This is incorrect. A trust never terminates when a trustee dies, resigns, embezzles the trust property, or is dismissed. The authority responsible for the trust appoints a new trustee, or otherwise arranges for the fulfillment of its purpose”
We will start in November 1947 with the UN Resolution 181, the Partition Plan, when Palestine, as the west bank of the Jordan River was then known, was divided between Jewish Palestinians and Arab Palestinians. Each was given not only the chance but also the go ahead to establish its own independent entity or state. The Jewish Palestinians grabbed the opportunity. As we will see below, in a quote from 1977, the Arab Palestinians considered themselves part of the greater Arab nation and not specifically as Palestinians so they did nothing – their nakb’a, their disaster, their missed opportunity.
When the British Mandate on Palestine ended in May 1948 the nascent Jewish State of Israel was invaded by her Arab neighbors, supplemented by volunteers from Arab countries which shared no border with Israel. The war ended in April 1949 when the last of the ceasefire agreements was signed between Israel and her neighbors – Egypt, Jordan and Syria. Two areas of the former Palestine were left in limbo.
In the Gaza Strip Egypt imposed martial law which lasted till June 1967. Judah and Samaria, the internationally accepted geographical description for those areas, similar to Galilee, Sharon or Golan, were annexed by the Hashemite Kingdom of Transjordan, which now became known as the Hashemite Kingdom of Jordan. When this annexation was voted upon at the UN Pakistan was the only country to vote in favor (remember Kashmir). Britain abstained. Not one Arab country voted in favor.
“Under the international law principle ex iniuria non oritur ius Jordan acquired no legal title in the West Bank. Egypt itself denied Jordanian sovereignty”. And thus the West Bank and Gaza Strip came into being. At no time during the following 19 years was there talk of an independent Palestinian state in either area. Nor did Egypt claim Gaza as Egyptian territory.
In May 1967, Egypt declared war on Israel, closed the international Straits of Tiran to Israel bound ships and unilaterally expelled UN troops from Sinai to which Egypt her own army. “As President Gamal Abdel Nasser declared to the Egyptian parliament at the time: ‘The problem before the Arab countries is not whether the port of Eilat should be blockaded or how to blockade it – but how totally to exterminate the State of Israel for all time’”.
Despite Israeli pleading, through diplomatic circles, that Jordan not take part in what was to become known as the Six Day War, Jordan began shelling Israel along the entire ceasefire line between the two counties. Apart from the divided Jerusalem, the Jordanians fired on the entire coastal plain including Tel Aviv, Herzlia and Netanya.
International law distinguishes clearly between “aggressive conquest” and territorial acquisition after a war of self-defense. Israel clearly was not the aggressor. “Where the prior holder of territory had seized that territory unlawfully, the state which subsequently takes that territory in the lawful exercise of self-defense has, against that prior holder, better title”.
Also defined as “acts of aggression” which may result in “measures taken by the victim of the aggression in lawful self-defense” are “the naval blockade and the massing of the armed forces of Egypt, Jordan, Syria and Iraq in preparation for a further invasion in 1967.
As we know, the Six Day War ended when Israel defeated the aggressors, Jordan, Egypt and Syria and took possession, legally, of the West Bank, Sinai and the Golan Heights. At a meeting Arab states in Khartoum the unanimous resolution was: “No recognition of Israel, no negotiations with Israel, no stopping the hostilities against Israel”.
And now the point we ponder is; who has the strongest claim to the West Bank. In fact, when the peace treaty between Israel and Jordan was signed in 1994, Jordan relinquished all claim to the West Bank thereby leaving Israel as the legitimate contender for, as we have seen, the Palestinians never had any title to the West Bank.
In the aftermath of the Six Day War UN Resolution 242 was passed. “To avoid the distortions introduced by propagandists the most reliable source from whom to seek clarification are the persons who drafted it. British Ambassador to the UN in 1967, Lord Caradon, and American Ambassador, Arthur Goldberg, deliberately omitted a demand for Israel to return to the pre-1967 borders. In an interview in the Beirut Daily Star on June 12, 1974, Lord Caradon stated:
“It would have been wrong to demand that Israel return to its positions of June 4, 1967 because these positions were undesirable and artificial. After all, they were just the places where the soldiers on each side happened to be on the day the fighting stopped in 1948. They were just armistice lines (not recognized international borders). That’s why we didn’t demand that the Israelis return to them, and I think we were right not to.”
The Palestinians are not mentioned in Resolution 242 as at that time there was neither a Palestinian entity nor a demand for one. For the same reason they are not mentioned in UN Resolution 338 after the Yom Kippur War. On the contrary “Palestine Liberation Organization (PLO) leaders have frankly disavowed distinct Palestine identity. On March 3, 1977, for example, the head of the PLO Military Operations Department, Zuhair Muhsin, told the Netherlands paper Trouw that there are no differences between Jordanians, Palestinians, Syrians and Lebanese:
“We are one people. Only for political reasons do we carefully underline our Palestinian identity. For it is of national interest for the Arabs to encourage the existence of the Palestinians against Zionism. Yes, the existence of a separate Palestine identity is there only for tactical reasons. The establishment of a Palestinian State is a new expedient to continue the fight against Zionism and for Arab unity.”…
Leaving no doubt that “Israel’s presence in all these areas pending negotiation of new borders is entirely lawful” the statement continues “since Israel entered them lawfully in self-defense. International law forbids acquisition by unlawful force, but not where, as in the case of Israel’s self-defense in 1967, the entry on the territory was lawful. ….
“International law, therefore, gives a triple underpinning to Israel’s claim that she is under no obligation to hand back automatically the West Bank and Gaza to Jordan or anyone else. a) These lands never legally belonged to Jordan; b). even if they had, Israel’s own present control is lawful, and she is entitled to negotiate the extent and the terms of her withdrawal and c) international law would not in such circumstances require the automatic handing back of territory even to an aggressor who was the former sovereign”.
Can there be any doubt that Israel has a legal right to be in the West Bank? From which it clearly follows that the “settlements” are not illegal either.
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