STAKING OUT ISRAEL’S LAWFUL CLAIMS TO THE WEST BANK

Why the Jewish State has a superior case for sovereignty in Judea and Samaria than the Palestinians.

October 29, 2013

 

Ari Lieberman

 

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Proponents of fairness and equity who have advocated against some of Israel’s most pernicious detractors have often advanced several well-reasoned arguments against further Israeli West Bank withdrawals and Palestinian statehood. Key among those arguments are that the Palestinian leadership is rejectionist, duplicitous, incites violence, is non-democratic and, in general, is not committed to a two-state solution recognizing Israel’s rights to exist within safe and secure boundaries. While all of these positions are accurate and by themselves would constitute sound reasoning to reject additional Israeli territorial concessions, there exits one reason above all others that favors the Israeli viewpoint; simply that Israel’s legal claims to the West Bank are far superior to those of the Palestinians’ under international law.

International laws are generally created by nations when entering into treaties with one another or more informally, through international custom.  General Assembly resolutions have no binding legal authority. In fact, the United Nations charter which spells out the powers of the General Assembly does not convey rule-making powers to that body.

Israel’s legal claims to the West Bank are rooted in the San Remo Conference of 1920, an international meeting of the post-World War I Allied Supreme Council. On July 24, 1922 the League of Nations, the precursor to the United Nations and a body which, under its charter had the authority to enact international laws, confirmed decisions hammered out at San Remo and resolved to establish the League of Nations Mandate for Palestine.

The League’s preamble, adopting the principles enumerated in the Balfour Declaration, recognized the Jewish “historical connection” to the Land of Israel and resolved to help facilitate the establishment of a Jewish nation there. At the time, Palestine consisted of land east and west of the Jordan River, encompassing all of modern Israel, Judea & Samaria, Gaza and what is referred to today as Jordan. The League entrusted Britain with being the mandatory authority whose aim would be to facilitate Jewish immigration to Palestine and to act as trustee until an orderly transition could be made to full Jewish sovereignty.

Article 5 of the Mandate prohibited Britain from ceding or leasing any part of the mandate territory to a foreign power. However, in 1923, Britain acting in contravention of Article 5 did precisely that and despite Jewish protest, gifted Eastern Palestine to Emir Abdullah thus creating a new Arab entity called Emirate of Transjordan. In so doing, Britain ceded 76% of Palestine to Arab rule leaving a paltry 24% for a Jewish homeland.

In February 1947 Britain announced that it would unilaterally terminate its mandate thus setting the stage for UN intervention. Following Britain’s announcement, the UN sent a team of international observers, known as UNSCOP, to Palestine to investigate and suggest a blueprint for the future of the territory and its inhabitants. After completing its investigation, UNSCOP formulated a plan, based on demographic patterns that involved the partition of Palestine into Jewish and Arab states on roughly a 50-50 basis. Jerusalem and its environs were to be designated international zones.

In November 1947, the UN adopted UNSCOP’s findings and voted in favor of the partition. The UN General Assembly’s partition plan was merely a suggestion and had no legal binding authority. The Jews accepted the partition plan and the Arabs flatly rejected it, setting the stage for the first Arab-Israeli War and an Arab invasion.

Had the Arab’s accepted the partition, international boundaries between Jewish and Arab states would have been established and the matter settled. In the absence of such a settlement, the only legal, binding authority was the League of Nations Mandate for Palestine, which designated the whole of Palestine, including the West Bank, as the future Jewish homeland.

The first Arab-Israel War ended in 1949 and resulted in an Israeli victory and strategic defeat for the Arabs. Israel and Jordan negotiated a ceasefire agreement that was formalized into an armistice agreement. Neither side recognized armistice demarcation line as an official border. The agreement left Jordan in control of East Jerusalem and the West Bank, territory that it illegally seized during its land grab. Shortly thereafter, Jordan annexed these territories, an annexation not recognized internationally save for Britain (only with respect to the West Bank) and Pakistan.

The Jordanian occupation of the West Bank lasted for 19 years. During that time, there was not a single UN resolution condemning Jordan’s illegal occupation. While this fact alone does not buttress Israel’s legal position, it does lend credence to the notion that the General Assembly can hardly be considered an impartial body.

On May 22, 1967, Egypt, in violation of international maritime law, closed the Straits of Tiran to Israeli shipping. The act was accompanied by aggressive Egyptian military deployments, violations of Israeli airspace and genocidal rhetoric. On June 5, 1967 Israel launched a preemptive strike against Egypt, destroying the bulk of Egypt’s air force in under 3 hours.

Contrary to the realities taking place on the ground, Egypt’s Nasser convinced King Hussein of Jordan that Israel was reeling. Hussein, lulled into believing these false claims, ordered his army to attack Israel. Jordanian Hunter jets bombed Kfar Saba and Netanya while Jordanian artillery shelled Israeli population centers in West Jerusalem. Jordanian infantry then began to take up positions in the demilitarized zones. In response to Jordanian aggression, Israel counter-attacked, taking over East Jerusalem and the West Bank in a matter of days.

While the UN considers war and conquests therefrom to be illegal, Article 52 of the UN Charter provides an exception to the illegality of war in cases involving self-defense. Israel acquired the West Bank (territory illegally seized by Jordan in 1948) through defensive conquest. Since Israel had the legal right to defend itself against aggression, its territorial conquest resulting from a defensive war is legal and binding. There is not a single case in history where a nation was forced to relinquish territory it had acquired through defensive conquest.

Following the war, a Soviet sponsored resolution requiring Israel to withdraw from all the territories acquired during the war was rejected by the United Nations Security Council. Several additional drafts were submitted and rejected. The UNSC finally settled on Resolution 242 with a language formulation that deliberately omitted the word “all” and merely required Israel to withdraw from “territories occupied in the recent conflict.” The omission of the word “all” was extremely significant in that it provided implicit recognition to at least some of Israel’s territorial gains.

Israel has fully complied with Resolution 242 by virtue of its withdrawal from Sinai, Gaza, Kuneitra (in the Golan Heights) and some 40% of the West Bank. Thus Israel maintains a strong legal claim to the West Bank, superior to all other claims, based on the League of Nations Mandate for Palestine, Resolution 242 and basic principles of International law.

Notwithstanding Israel’s valid legal claims, Israel has been widely condemned in various quarters for its “settlement” activity in the “occupied” territories. The strongest condemnations emerge from the EU and the Muslim world though the United States position has been more equivocal and has varied from administration to administration. The United States has in the past opposed settlement activity as a matter of policy but with some very minor exceptions, has refused to term such activity “illegal.”

President Ronald Reagan explicitly stated that settlements were “not illegal” a position reinforced by President George W. Bush who provided implicit recognition of the legitimacy of settlements when he noted that, “In light of new realities on the ground, including already existing major Israeli populations centers, it is unrealistic to expect that the outcome of final status negotiations will be a full and complete return to the armistice lines of 1949…”

Those who condemn settlement activity rely on Article 49, Clause 6 of the Fourth Geneva Convention which states that, “the Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.”

As previously noted, the claim that Israel is an “Occupying Power” as defined in Article 49 is dubious at best. Israel maintains a valid, legal claim to the West Bank, far superior to those of the Palestinians or any other entity. But even if Israel was to be given the designation of “Occupying Power,” Article 49 would still be inapplicable.

Israel has not transferred or deported any part of its population into the West Bank. Individual Jews, with varied motivations, voluntarily moved into these territories. Moreover, many Israelis were born in the West Bank thus further highlighting the inapplicability of Article 49. Article 49 does not impose on Israel any duty to prevent its citizens from developing or moving into the West Bank.

Ambassador Morris Abram, a member of the U.S. staff at the Nuremburg Tribunal who was intimately involved with the drafting of the Fourth Geneva Convention, forcefully noted that Article 49(6) “was not designed to cover situations like Israeli settlements in the occupied territories, but rather the forcible transfer, deportation or resettlement of large numbers of people.” Other acclaimed and notable scholars such as Eugene V. Rostow, Dean of Yale Law School and former US Assistant Secretary of State, Stephen M. Schwebel, President of the International Court of Justice, Nicholas Rostow, university counsel and vice chancellor for legal affairs of the State University of New York, David M. Phillips, professor at Northeastern University School of Law and Fulbright Scholar and Professor Julius Stone, international lawyer and prolific author have voiced similar positions and have highlighted the absurdity of applying Article 49(6) in the context of Israeli settlements.

On July 9, 2012 a committee, headed by the respected former Israeli Supreme Court justice Edmond Levy, concluded that Israel’s presence in the West Bank was not an “occupation” within the meaning of Article 49 and that the settlements were not illegal. Recently, 1,000 jurists of various nationalities signed a petition supporting the findings and conclusions of the Levy Report and submitted it to the EU's foreign policy chief and one of Israel’s shrillest critics, Catherine Ashton.

It is unlikely that Ashton was moved by the petition but it is demonstrative of the wellspring of support that Israel maintains internationally and that in at least some circles, sanity still prevails. The settlement enterprise, inspired by the original Zionist ethos of building and developing the land will continue to be a source of controversy but from the perspective of international law, it is on rock-solid footing.