INTERNATIONAL LAW REGARDING THE LAND OF ISRAEL AND JERUSALEM aka PALESTINE
International law is often cited as a pretext for
the policies of Western governments and human rights agencies toward Judea , Samaria , and Gaza in
general and Jerusalem in
particular. A certain assumption or presumption about the international law
status of these areas is the premise for claims that they are “occupied
territory,” that Israeli construction in formerly Jordanian-ruled parts of Jerusalem is
“illegal,” etc.
Given the centrality of
allegations about international law in the diplomatic and political assaults on
Israel made by such bodies as
the European Union, the UN General Assembly, and others, there is a need to
know, to understand and to expound the true international law concerning the Land of Israel as a matter of sheer
political self-defense. What indeed has been the status of Judea , Samaria , Golan and Gaza under the law of
nations?
International law has recognized Jewish rights
to sovereignty over the Land of Israel and to settlement
throughout the land. In April 1920, at the San Remo Conference (part of the
post-World War I peace negotiations), the Supreme Principal Allied Powers,
acting on behalf of the international community, recognized all the land in
Palestine east and west of the Jordan River and the sea, including Jerusalem,
as part of the Jewish National Home, based on the Jewish people’s historic
rights. On the same grounds, the Golan[1] and Transjordan too were within the
National Home (albeit the eastern border of the National Home, was clearly east of the Jordan river , it was also
acknowledged by the January 1919 Faisal Weizmann Agreement).
The San Remo decision meant also
the juridical creation of “Palestine ” as a political entity
as well as the introduction of that name as the official geographic designation
for the new entity to be the reconstituted Jewish National Home. During the
centuries of Ottoman rule, the country was divided among larger administrative
entities with their capitals outside the country, the vilayets of Beirut and
Damascus, although in the mid-nineteenth century, as a consequence of
increasing influence by Christian powers on the Ottoman Empire and Jerusalem’s
political sensitivity due to the Christian powers’ interest in the city, the
Jerusalem area was made into an independent sanjaq (district). It was called
“independent” because its governor reported directly to the Ottoman capital, Istanbul (then called Constantinople in the West), not to a
provincial (vilayet) governor.
Furthermore, Arab-Muslims traditionally saw the
land as an undifferentiated part of Bilad al-Sham, usually translated as Syria
or Greater Syria, which comprised the Syria, Lebanon, Israel and Jordan of
today, roughly speaking. Before the Crusades, the Arab-Muslim conquerors had
designated the southern part of Israel (roughly speaking) as
the military district of Filastin, corresponding to the Roman-Byzantine
district of Palestina Prima (one of three parts of Palestina). The Crusaders
ordinarily called the country Holy Land (Terra Sancta). Use of
the name Filastin was not resumed by Muslim rulers after the Crusades. Under
the Mamluks and Ottomans, Bilad al-Sham underwent several administrative
reorganizations, changes of internal borders, etc. But there was never a Muslim
governmental unit of any name that corresponded geographically to the Jewish
concept of Land of Israel or the Greco-Roman Judea (= IUDAEA, which included
Samaria, Galilee, Golan, the coastal plain, the Jordan’s eastern bank, etc., in
addition to Judea in the narrow sense). Emperor Hadrian had renamed the Province of Judea (= Provincia Iudea)
“Palestina” (ca. 135 CE) for imperialist reasons.
Hence, the Arab-Muslim geographic concept
differed radically from that of Jews and Christians. Further, whereas both Jews
and Christians saw the country as a distinct geographic concept, they tended to
use different names for it. In Jewish tradition the land was long called the
Land of Israel, while Christians, through the nineteenth century, were likely
to call it Holy Land (according to their various languages, that is, Terre
Sainte, etc.), with Palestine, Judea, Land of the Bible, etc., as alternate
names.
The 1920 San Remo decision for the Jewish
National Home was ratified by the League of Nations with illegal violation by
allocating the land east of the Jordan River to Transjordan, in 1922 and
endorsed by a joint resolution of the United States Congress that same year,
with a more official US endorsement coming in the Anglo-American Convention on
Palestine (proclaimed 1925).
This legal state of affairs was expounded in a
legal memorandum drawn up in 1946 [2] by a group of distinguished
American-Jewish jurists including Judge Simon Rifkind, Abraham Fortas (later
appointed to the Supreme Court), and others.
To measure the extent of American commitment to
the National Home at the beginning, we may quote from the terminology of the
time: “RES. 52: Expressing satisfaction at the re-creation of Palestine as the national home
of the Jewish race” (House Committee on Foreign Affairs). “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…” (1922).
Because the legal issue is once again very much
alive, a brief survey of the matter is useful, with particular reference to
Jerusalem.[3] By the time the League of Nations was replaced by the UN
in 1945, Britain had illegally tried to
revoke the Jewish National Home, violating the principles of the League’s
mandate. This attempt was embodied in the Palestine White Paper of 1939, on the
eve of the Holocaust, and in various subsequent ordinances illegally enacted by
the British mandatory government, which made it very difficult for Jewish
refugees to enter the country and forbidding any Jews to buy real estate in
most of the country. Nevertheless, this British attempt to change the country’s
status was rejected as illegal by the League of Nations Permanent Mandates
Commission in June 1939. The British ignored it and severely restricted Jewish
immigration to Palestine , These restrictions
caused the deaths of millions of Jews trying to escape Nazi concentration
camps. The British went out a far as blowing-up after WWII Jewish refugee ships
bound for Palestine as "Operation
Embarrass".
When the UN was founded in 1945, it reaffirmed
through its Charter the existing territorial rights of peoples as they had been
before the war (Article 80). This applied of course to the Jewish National Home
which was reconstituted in 1920. However, many or most people today are either
not aware that the whole country constituted the Jewish National Home, or
believe that the UN had somehow eliminated this status and, in any case, had
fixed legal boundaries for Israel through the 1947 Partition Resolution. Yet
the 1947 resolution was passed by the General Assembly. And all General
Assembly resolutions on political issues are merely recommendations and have no
validity unless accepted by all parties, and the Arabs rejected them outright.
The UN Charter states, defining the powers of
the various UN bodies: “The General Assembly may discuss any questions relating
to the maintenance of international peace and security… and… may make
recommendations with regard to any such question” (Article 11; also see Arts.
10, 12, 13, 14). Only the Security Council can make binding resolutions,
according to the Charter, which must be accepted by the parties to be valid.
Now the Partition Plan, in a not uncommon
display of unrealistic, political move that recommended two states in the
former revised mandatory of Palestine west of the Jordan River, one Jewish and
one Arab, plus a special status for Jerusalem (The British as trustee for the
Jewish people and in violation of international law and treaties of post WWI, had
separated Transjordan unilaterally from the Reconstituted Jewish National Home
in 1922, although not de jure). The Holy City was to be an
internationally governed corpus separatum. While the Jewish leadership accepted
the Plan, the Arab governments and local Arab leadership universally rejected
it, which made the resolution and partition meaningless. After the war had
begun the UN made no effort to prevent the invasion of the country by Arab
states, to prevent Arab attacks on Jews within the country or to eliminate the
Arab siege of the Jews in Jerusalem , a city where Jews had
been the majority at least since 1870. Thus Israel did not feel bound by
the Partition recommendation. Professor Eugene Rostow, an authority on
international law, has pointed out that the Arab war on Israel of 1947-49, “made the
Partition Plan irrelevant and void.”[4]
After the battles of the War of Independence
had ended, Israel and four Arab states
signed armistice agreements. The accord with Jordan (then called Transjordan ) specifically stated
that no political border with Israel was being recognized,
merely an armistice line (the “green line”). And this at Arab insistence! Arab
spokesmen repeated this on later occasions. For instance, the Jordanian
delegate to the UN told the Security Council a few days before the Six Day War:
There is an Armistice Agreement. The Agreement
did not fix boundaries; it fixed a demarcation line. The Agreement did not pass
judgment on rights – political, military, or otherwise. Thus I know of no
territory; I know of no boundary. (May 31,
1967 )
Obviously, since no political border between Jordan and Israel was recognized, then
the prior legal status prevailed – that is, the Jewish National Home recognized
and constituted in 1920 at San Remo . Hence, the areas that
Jordan called “West Bank ,” as well as east Jerusalem (which had thousands
of Jewish residents before 1948), remained part of the National Home even
during Jordanian occupation. The Assembly’s repetitions of its Jerusalem recommendation (GA
resolutions 194, 303, etc.) could not change this. Nor did the Security Council
change the status of Jerusalem by its famous
Resolution 242 after the Six Day War.
Although the Council’s resolutions are said by
the UN Charter to be binding, this resolution did not specify what territories
were “occupied.” Perhaps the Council was referring to the Sinai Peninsula , occupied by Israel in that just war of
self-defense. Furthermore, the Council could not legislate ex post facto, after
the fact, to take away the already existing rights of the Jewish people.
According to Professor Rostow, “The withdrawal and abandonment of Great Britain as administrator and
trustee did not of course terminate the Mandate as a trust [for the Jewish
people].”[5]
Obviously, the refusal has its illogical reasons.
It may stem from the same reasons that induced the British to allow Arab mobs
in a series of pogroms (1920, 1929, 1936-38) to drive Jews away from the
neighborhood of Jewish holy places, such as the Temple Mount and the Cave of the
Patriarchs in Hebron . It may be related to Britain ’s reasons for
appointing only Arab mayors for Jerusalem , even-though the Jews
had a majority throughout the whole mandatory period, despite the Jewish
majority since at least 1870. Now the Ottoman Empire did the same up to
1917, but then the Ottoman Empire was an avowed Muslim state, whereas the
British had accepted an international commitment and obligation as trustee (the
Mandate for Palestine ) to foster immigration
and development of the country as the Jewish National Home.
It is clear that according to the San Remo decision of 1920 and
the League of Nations vote of 1922 for the Jewish National Home,
Israel’s liberation and extension of its jurisdiction over all of Jerusalem since the Six Day War
is legal and proper.
Nevertheless, self-serving deceptive interpretations
of law are often made by interested parties. In the case of Israel, such interpretations
provide pretexts for declarations by governments and groupings of governments –
the Arab League, the European Union, the UN General Assembly – that are hostile
to Israeli sovereignty in Jerusalem (or indeed anywhere in the country). Such
false, deceptive and hostile interpretations remind us that we dare not place
our trust in law or international accords. Yet, the outbursts in the form of
declarations and illegal resolutions based on these interpretations have the
illusion of more force and cause more damage than many friends of Israel seem
to realize, although they may be less effective than their authors would like).
And thus they need to be answered.
FOOTNOTES
1. The Golan was an original part of the Jewish
National Home as decided at San Remo and had been populated and ruled by Jews
in Second Temple times and afterwards. In 1923, the British authorities in
violation of international law and treaties, transferred the Golan to the
French mandate of Syria without approval of
the Zionist Organization.
2. Simon Rifkind, Abraham Fortas, et al., Basic
Equities of the Palestine Problem: A Memorandum (1946) [reprinted New York : Arno Press, 1977].
3. We shall use the Rifkind-Fortas memorandum,
our own study of the UN Charter and subsequent UN acts, writings of Prof.
Julius Stone and Prof. Eugene Rostow, and various historical information. We
have also benefited from conversations with Attorney Howard Grief of Jerusalem , a former advisor on
international law to the Israeli Ministry of Energy, who has done research into
the Balfour Declaration, the San Remo Decision, the League of Nations Mandate,
etc., up to the series of agreements going by the name of the Oslo Accords. The
conclusions are my own. In early October 2015, the leader of the Arab PA in a
speech in front of the UN declared that he will not abide by the terms of the
Oslo Accord and therefore, the Oslo Accord is no longer in affect.
4. Eugene Rostow, “Resolution 242 at Twenty,” Jerusalem : Institute for
Advanced Strategic and Political Studies, 1988, p 5.
Since WWII; the Arab States terrorized and expelled over a million Jewish families and confiscated all their assets including homes and land of about 70,000 square miles valued today in the trillions of dollars. Most of those expelled Jewish families from Arab countries were resettled in Israel and today comprise over half the population.
5. Ibid.
The author is a researcher, writer and
translator, living in Jerusalem .
This is a substantially revised and re-written version
of an article published in Midstream (New York ) in February/March,
1999.