Written and submitted by Arlene Kushner.
The campaign that I co-chair, Legal Grounds: The Campaign for Promoting Israel’s Rights – http://wehavelegalgrounds.org/ – is determined to change the status quo and reach the day when the government of Israel speaks for Israeli rights. Altogether too much time has been lost already, and it is certainly time to begin.
Let me take a moment, then, to provide legal background on our rights in the land. This is a brief version, condensed in a manner that will hopefully provide ready accessibility. It is for your information, and for you to use in speaking to others, writing letters to the editor, posting on blogs and websites, and more. The point is that it depends on all of us to set the legal/historical record straight.
It is broadly drawn from material provided for us by international lawyer Dr. Harel Arnon (with emphasis added):
►Judea and Samaria were part of the area designated in 1922 by the League of Nations for the British Mandate of Palestine – for the establishment of a homeland for the Jewish people only. The Mandate drew its wording from the decisions of the San Remo Conference of 1920.
►The United Nations General Assembly voted in 1947 for partition of Palestine. However, contrary to accepted opinion, this vote was not a binding decision, but rather a recommendation. The United Nations Security Council took no action in response to this recommendation, in part because of objections from the Arabs. In other words, the status of Judea and Samaria was not changed following the partition recommendation: It remained part of the territory which, according to the Mandate, was intended for the establishment of a home for the Jewish People.
►Jordan’s entry into Judea and Samaria in 1948 as part of a military action it had initiated (not for defense purposes), was illegal. By the same argument, it can also be said that the Jordanian annexation was also illegal. Even the Arab League condemned Jordan for annexing Judea and Samaria.
►In 1967 Israel took control of Judea and Samaria from Jordan, which had annexed the area in contravention of international law. Israel did this during a defensive war, which makes its actions legal.
Therefore, during the Six Day War, Israel took control of areas that were not part of any other legal sovereignty – stateless areas – and which had, in any case, been designated for the Jewish People. From a legal point of view, Israel could not be classified as a conqueror.
►Judea and Samaria are not “Palestinian” as the “Palestinians” were never a nation. There has never been a “Palestinian State”. Today there is an argument, and just an argument, made by the Arabs living in Judea and Samaria, regarding their right to an independent state. This is a political argument and Israel is not required to accept it, even if much of the world identifies with this argument.
►Furthermore, the right to self-determination, in the legal sense, only took form in international law long after 1967, from the 1980s onwards. And this even before we begin examining the question as to whether the Arabs in Judea and Samaria have such a right.
►Laws of occupation apply to a situation in which territory is taken by one state from another state. For this reason, they are not relevant and do not apply to Judea and Samaria.
As a result, the settlements are not illegal.
All the injunctions and restrictions placed on an occupying nation are not relevant to Judea and Samaria.
Legal claims regarding Israeli occupation are no more than the adoption of an Arab national narrative. Nothing more than that.
One other point to be mentioned here: It is frequently said that the settlements are a violation of article 49 of the Fourth Geneva Convention Relative to the Protection of Civilians (1949). But, as a Jerusalem Center for Public Affairs briefing indicates, “both the text of that convention, and the post-World War II circumstances under which it was drafted, clearly indicate that is was never intended to refer to situations like Israel’s settlements. “
This was intended to apply to situations in which populations were coerced into being transferred. It was drafted in order to prevent a repeat of the behavior of the Nazis and the Russians during WWII.
You might also want to see, and share, this article that cites Dr. Arnon, whom I refer to above.
The ‘Legal Grounds’ for Israeli Settlements
While there are absolutely no firm legal grounds for doing so, most of the world today labels Jewish communities built on Palestinian-claimed land in Judea and Samaria as “illegal.”
It’s a simple concept really. “In the post-modern world we live in, if you repeat a lie often enough, it sadly becomes the truth,” stated Dr. Harel Arnon in a recent address to Knesset members in Jerusalem.
Dr. Arnon continued that “one of the lies feeding this wild campaign of incitement that Israel is facing” is the notion that Jews have no right under international law to make their homes in the so-called “West Bank.”
Dr. Arnon, a recognized authority on international law, was speaking on behalf of the Legal Grounds Coalition, an umbrella group urging the Israeli government to stop playing its enemies hands by acknowledging some kind of mythical “occupation.”
He explained that it is not necessary to even address whether or not Israel is right morally, politically or religiously when speaking of Jewish settlements, because her enemies have hinged everything on international law, so the argument can be concluded there.
Dr. Arnon went on to point out that “international law is relatively abstract…and there is no exact definition as to what constitutes an occupying nation.” However, two solid principles can be extracted from international law as relates to this matter:
- A nation can only occupy land from another nation;
- The occupying nation controls a population that does not have the citizenship of the occupying nation.
So, how what does this mean in relation to Israel’s presence in Judea and Samaria?
Dr. Arnon expounded:
“When Great Britain received the mandate over Palestine, including Transjordan, it received it for one purpose only – to establish a Jewish national home. Afterwards, in 1948, Britain returned the mandate to the UN, which had inherited the authority of the League of Nations, and left the territory of Palestine, which is now the State of Israel and Judea and Samaria. In this territory…a legal vacuum was formed, a territory without a sovereign.
“Israel stood on the borders of 1948 and declared its independence. After, Jordan…unlawfully invaded and annexed Judea and Samaria. This action was indisputably unlawful, and even the Arab League condemned Jordan for doing it.
“In 1967, Israel returned to Judea and Samaria, got rid of the illegal Jordanian occupation, and took control. …This prompted scholars of international law to coin the phrase ‘terra nullius’, meaning a territory without a sovereign, or a vacuum territory. Judea and Samaria is a territory over which no country has legal sovereignty, not even Israel, but Israel holds it.
“In other words, when we want to examine the question of whether or not Israel is occupying Judea and Samaria, we must address the fact that Israel took Judea and Samaria from someone who was there illegally, and therefore Israel cannot be seen as an occupier…the laws of occupation do not apply to Judea and Samaria.”
In conclusion, Dr. Arnon pointed out that the Geneva Conventions are simply not applicable to a situation in which
“Israeli citizens voluntarily settle in a territory with no other legal sovereign.”
These truths notwithstanding, Dr. Arnon acknowledged that most of the world had adopted the position that Israel is an occupying power. However, since these claims, and the world’s extra-judicial acceptance of them, are in no way legally binding,
“Israel does not have to accept an argument with which it does not agree.”
At the very least, Dr. Arnon encouraged those listening that
“in an era in which when you repeat a lie often enough it is accepted as truth, we must hope and believe that if we repeat [the truth] again and again there is a chance people will be convinced by the simple truth.”
I am surprised that nowhere in your article is any mention made of:
1. Article 80 of the UN Charter which preserves the right of the Jewish people to reconstitute the Jewish National Home in Palestine (which includes Judea and Samaria) notwithstanding the demise of the League of Nations and the handing back of the Mandate to the UN by Great Britain
2. That Jews did settle in Judea and Samaria for decades pursuant to the Mandate until 1948 before being driven out and expelled from their properties in the 1948 War and not being allowed to return until after 1967.
Article 80 is not being honoured by member states of the UN when claiming Jewish settlement in Judea and Samaria is illegal.
Why Israel is not constantly ramming article 80 down ignorant UN throats is a mystery.
David, your comment is a valid one: What you are speaking about is the commitment of the UN in its charter to honor the Mandate system put in place by the League of Nations. The list of legal grounds for Israel’s presence in Judea and Samaria that I presented was drafted by a distinguished and prominent international lawyer. I utilized it because it provides clarity and is authoritative. But as the opportunity presents itself, I will address this point.