Wednesday, February 25, 2015

It is time to factually clarify the legal status of Judea and Samaria under international law.

It is time to factually clarify the legal status of Judea and Samaria under international law - adopted in the 1920 Treaty of Sèvres

It is time to factually clarify the legal status of Judea and Samaria under international law.
"When the occupant is not the one you want to believe in" 
In 1967 Israel liberated occupied Jewish Palestinian territories.   
For the enemies of Israel and many of Its’ friends, and for a majority of Israelis, this is a basic axiom. During the Six Day War, it is stated that Israel liberated and captured the Jewish Palestinian territories, resettled and installed there Its’ “settlers” with impunity and in obvious violation of international law.  Is this axiom a lie? If international law asserts the exact opposite, for obvious political and diplomatic reasons, then the facts have been ignored and have instead embraced the current unfounded and false Arab propaganda. This understanding is a misconception and false.  

It is time to clarify and illustrate the Jewish legal status ofJudea and Samaria under international law.    
One only has to read the documents.  However, the Media has without a doubt, immersed itself in hearsay and untruths, twisting facts and ignoring the truth.  It is time to examine the real truth and facts as supported by documents and history. 
We hardly talk about it, yet, when looking at historical documents on the legal status of Judea and Samaria, one finds powerful arguments against all critics who accuse Israel of occupation of the territories. It must be noted it doesn't matter if these critics are Arabs, Americans, Europeans or even members of the Israeli extreme left. 
The San Remo Treaty of 1920, written almost a century ago, forms the foundation of truth. Yet, it seems hardly anyone in the Prime Minister's office, the Minister of Foreign Affairs, or Hasbara has taken the time to build a strategy based on said Treaty and other documents which followed that prove clearly that Israel is far from the colonial power it is being accused of being since 1967. 
When considering the media archives that preceded the Oslo Accords, we realize that the official Israeli narrative concerning the Israeli presence in the West Bank was much less ''worried'' then today. Until 1993, Israel gave the impression of not requiring justification for rebuilding Jewish settlements beyond the Green Line. Until that time, Israel did not seem to plead for the international community and the Arab world in particular to give It the acquiescence of keeping the famous "settlement blocs."
According to Prof. Eliav Cho'hatman, lawyer and lecturer at the Graduate Institute of Law "Shaare Mishpat," there is no doubt that the Oslo Accords marked the starting point of this attitude it deems "catastrophic": "Until then, our leaders did not hesitate to brag our rights over all the land of Israel from the point of view of international law but since the agreements were signed, only security patterns are referred to plead that part of these territories we are entitled to remain in our hands."  Prof. Cho'hatman says he sent to Prime Minister Binyamin Netanyahu during his first term (1996-1999), his work on the above, but regrets that the head of government has not availed itself: "When I heard of two states for two peoples, I understood why."  
To understand this issue, we must examine Balfour Declaration and San Remo Treaty, a little less than a century ago, November 2, 1917, to be precise. At that time, Lord Balfour, Foreign Minister of Great Britain, in writing, and in agreement with Chaim Weitzman, then president of the World Zionist Organization, wrote in an official letter to Lord Lionel Walter Rothschild, honorary president of the Zionist Organization of England, the following. In this letter, the UK is in favor of the establishment of a national home for the Jewish people in Palestine. This is the famous "Balfour Declaration" which raises unbridled hope in the Jewish world. In the aftermath of World War I, the League of Nations entrusted to Britain a Mandate over Palestineas trustee for the Jewish people.
Three years after the Balfour Declaration in 1920, the conference was held in San Remo,Italy during which the great powers decided how to split the territories conquered during the war. At this conference, it was decided to incorporate the 1917 Balfour Declaration into The San Remo Treaty of 1920 (its terms are in effect in perpetuity), and the British Mandate forPalestine as trustee for the Jewish people. This decision confirms the international recognition of the Jewish right to self-determination in Palestine and the mandate for Britainto "work towards the realization of this statement to reconstitute a national home for the Jewish people in Palestine(Balfour Declaration).  It must be noted, the San Remo Treaty did not grant any other nation or people land in any part of Palestine, only the Jewish people.  Including the incorporation of the Balfour Declaration into the Palestine Mandate by the United Kingdom, this text is the same international resolution supported by the 52 member countries of the League of Nations, and later by the United States, which would become a member of the international organization a few years later. 
The San Remo Treaty of 1920 and its terms to reconstitute the Jewish people in its ancestral land was reconfirmed in the treaty of Sevres 1920 and the treaty of Lausanne.

British Mandate for Palestine

The three principles of the British Balfour Declaration regarding Palestine as a reconstituted Jewish country were adopted in the 1920 Treaty of Sèvres:
The High Contracting Parties agree to entrust, by application of the provisions of Article 22, the administration of Palestine, within such boundaries as may be determined by the Principal Allied Powers, to a Mandatory to be selected by the said Powers. The Mandatory will be responsible for putting into effect the declaration originally made on November 2, 1917, by the British Government, and adopted by the other Allied Powers in the San Remo Conference, in favor of the re-establishment in all of Palestine a national home for the Jewish people, it being clearly understood that nothing shall be done which may prejudice the civil and religious rights of existing non-Jewish communities in Palestine, or the rights and political status enjoyed by Jews in any other country and granting the Jewish people exclusive political rights in Palestine.
Palestine officially fell under the British Mandate as trustee for the Jewish people.

French Mandate of Lebanon

The French Mandate was settled at the San Remo Conference. Comprising the region between the Euphrates River and the Syrian Desert on the east, and the Mediterranean Sea on the west, and extending from the Alma Dagh Mountains on the south to Egypt on the south; Area of territory about 60,000 sq mi (160,000 km2) with a population of about 3,000,000.Lebanon and an enlarged Syria, which were later assigned again under League of Nations Mandate. The region was divided under the French into four governments as follows: Government of Aleppo from the Euphrates region to the Mediterranean; Great Lebanon extending from Tripoli to Palestine;Damascus, including DamascusHama, Hems, and the Hauran; and the country of Mount Arisarieh.

French Mandate of Syria

Faisal ibn Husayn, who had been proclaimed king of Syria by a Syrian national congress in Damascus in March 1920, was ejected by the French in July of the same year.

The San Remo Treaty of 1920  - some relevant terms
In paragraphs 5, 6 and 7 of the Protocol of San Remo, we read: "No territory ofPalestine will be sold or leased or held in any way under the control of the government of any foreign power." Or: "The Administration of Palestine, while ensuring that the rights of other parts of the population are not altered, shall facilitate Jewish immigration under suitable conditions and encourage, in cooperation with the Jewish Agency; The dense settlement of Jews on the land, including State lands and waste lands not required for public purposes. " 
Finally, the Palestine Mandate states: "the Administration of Palestine is responsible for the adoption of a law on nationality. Included in this law must be provisions framed so as to facilitate the acquisition of Palestinian citizenship by Jews who acquire permanent residence in Palestine."  At that time, it must be remembered, Palestine is not just the west bank of theJordan. Rather, it also includes, most importantly the majority (approx. 70%) of the territory which is the east bank of the Jordan River, where today is located the new State of Jordan.
Britain reneged on its promises   
What happens next is related to internal political changes in 
Britain and the election of a government hostile to the creation of a Jewish homeland throughout the territory of Palestine. Thus Britain, having clearly supported the conclusions of the San Remo Conference of 1920, changes its mind in violation of the treaty and weaves very tenuous diplomatic ties with the Arab countries surrounding the area of Palestine and with several Arab leaders (to control natural resources, such as oil).
The creation of Transjordan on Jewish and                                            It was after this diplomatic rapprochement that Transjordan was created in 1922. Transjordan is a semi-autonomous state like Britain led by Abdullah Hussein, son of Sharif Hussein of Mecca Ibn Ali, and great-grandfather Abdullah, the current king of Jordan. However, in regard to the West bank of the Jordan river, and the West Bank (Judea and Samaria) nothing has changed. Per San Remo Treaty and all subsequent agreed to documents, these regions are still part of the territories over which the Jewish national home has to be re-established.

According to many lawyers, including Prof. Dr. Cho'hatman with Talya Einhoren, and American lawyer Eugene Rostov, one of the drafters of the famous U.N. Resolution 242 which is the partition plan of 
November 29, 1947, does not change the situation either. Indeed, having been adopted by the U.N. General Assembly and not by the Security Council, it cannot be considered legally binding. Legally, it is only a recommendation that obtains legal validity in case of endorsement by the parties in question: the Jews and the Arabs. This plan was rejected by the Arab powers, thus, its status remains protocol.  For other lawyers, the partition plan has transformed the status of the Judea and Samaria territories into one of dispute.  On one hand, the Territories are not part of the state of Israel created in 1948.  On the other hand they do not belong to Jordan which occupied those lands from 1948 to 1967. The War of 1967 liberated said Territories returning them to the rightful owners the Jewish state of Israel.
The Jordanian occupation
Did the Jewish people temporarily lose the rights to 
Judea and Samaria with the Jordanian occupation between 1948 and 1967? For many lawyers, the answer is no. Jordan proclaimed Itself sovereign of the territories after the war of independence with the support of only two countries, Britain and Pakistan. Moreover, the same Jordan decided in 1988 to abandon its sovereignty in Judea and Samaria. Incidentally, the term West Bank formally is no longer needed. It should also be known that many Arabs in the West Bank also known asJudea and Samaria are citizens of Jordan.
The dissolution of the League of Nations
Does the dissolution of the League of Nations which was replaced by the UN, and the end of the British Mandate for Palestine cause any change in the rights of the Jewish people to their land? Again, the answer is no because, under section 80 of the UN Charter, "nothing in this Chapter shall be construed as affecting directly or indirectly in any manner the rights whatsoever of any states or any peoples or the terms of existing international instruments to which Members of the Organization may be parties." Clearly, this means that the UN  committed in 1945 to protect the legitimacy of the Jewish land rights established by theLeague of Nations.
For Professor Eugene Rostov, mentioned above, this means that "the right of the Jewish people to settle in the land of Israel has never been interrupted on all the territory west of theJordan River, and since a peace agreement has not and will not be signed between Israeland its neighbors the status has not changed."  He later wrote that under all international treaties and agreements, "Israel has an undeniable right to establish settlements in the West Bank."
No unilateral approaches 
Did the 
Oslo agreements affect the status of Judea and Samaria under international law? Again, the answer is to be found in the texts themselves. Indeed, it is stated in the preliminary agreement in 1993 that the final peace agreement will be signed by both parties "through negotiations." The agreement, called Oslo II and ratified in 1995, provides for its part that neither side "does not initiate or commence proceedings which can change the status of theWest Bank and the Gaza Strip to the end of negotiations on the final peace agreement." Any unilateral approach - such as the announcement in September by the Palestinians of an independent state - will therefore be in stark contrast not only with the Oslo agreements (which may be null and void) but also with resolution 242 of the UN that supports the right of each party to "live in peace within secure and recognized borders." The borders of a proclaimed Palestinian state are of course far from being "secure and recognized" in the view point Israel. Incidentally, Resolution 242 does not speak of, thus, does not apply to any suchPalestine, rather, only to existing states, that is to say, JordanEgypt and Syria.
Do not just be right, but also know 
There are other arguments for the legitimacy of the Jewish presence in 
Judea and Samaria. For example, the fact that these territories cannot be considered ''busy'' since they do not belong, de facto, to an enemy state. Or inconsistency of the term ''1967 borders" which are not borders but the cease-fire line between Israeli and Jordanian armies at the end of the 1967 and 1948 War of Independence. Legally, Israel is therefore in a rather comfortable and sound position.

Yet these arguments are not raised. The reasons? There are many: 
Israel and the Israelis became convinced themselves that they were a colonial power and archives in the world will not be able to release this distorted image. Also in Jerusalem, it probably feels that right or not right, the world has already chosen sides. In the corridors of the Foreign Ministry, it is even said that under international law, "it is 99% perception, and 1% enactment of factual law." But in Israel, there is another expression that says it is not enough to be right, but you must also be smart. And now for the good of the State of Israel, "be smart" is to make the world know what is right. 
The Jewish and Arab Refugee resolution     
Since the late 1940's the Arab States have expelled over a million Jewish people. They confiscated their assets, businesses, homes and Real Estate which is 120,000 Sq, Km. (46,000 sq. miles, about 5-6 times the size of Israel) and is valued in the trillions of dollars. The State of Israel has resettled the majority of the million Jews expelled from the Arab countries in Greater Israel. The Arabs claim that about 600,000 Arabs were displaced from their homes during the 1948 war. Most of the Arab population abandoned their homes at the request of the 5 Arab Armies who were sure to defeat the newly reconstituted Jewish State. About 300,000 Arabs out of the 600,000 stayed. Now the Arab and Jewish population has increased dramatically. Many new Arabs have moved into the area, and many new Jews from the Holocaust and other areas have emigrated to Israel. It is about time that the Arab countries that expelled over a million Jews should resettle the Arab refugees in their vast lands. Utilize the funding which is given to the Arab refugees (instead of using it for weapons and war) to relocate, build housing, schools, commerce and industry and resolve this tragedy once and for all. This will bring peace and tranquility to the region. 

YJ Draiman

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