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.

“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 of Judea 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We hardly talk about it, yet, when looking at historical documents on the legal status of Judea and Samaria, one finds powerful arguments against all critics who accuse Israel of occupation of the territories.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 and confirmed by the 1920 Treaty of Sevres, 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 (which are now null and void), 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 which was confirmed in the 1920 Treaty of Sevres, 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 Palestine as trustee for the Jewish people over all of Palestine.

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 confirmed by the 1920 Treaty of Sevres, it set the British Mandate for Palestine 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 Britain to “work towards the realization of this statement to reconstitute a national home for the Jewish people in all of 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 1920 treaty of Sevres 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:

ARTICLE 95.

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 Damascus, Hama, 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 of Palestine 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 the Jordan. Rather, it also includes, most importantly the majority (approx. 77%) 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 and its confirmation in the 1920 Treaty of Sevres, 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).

If one argues that the perpetual right of Israel to all of Palestine has been abrogated, then one also brings into question the status of the Arab states that were created by England in the aftermath of World War 2. The legality of these Arab states that were carved out of the defunct Ottoman Empire also rests on the same “trusteeship system” installed after the first world war by the community of nations. In fact, the Weizmann-Feissal agreement of the 1919 peace conference talked of one Jewish state (all of Palestine) and only one Arab state (the other 99.9% of the Middle East).

The creation of Transjordan on Jewish land 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 (Judea and Samaria) 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 as confirmed per the 1920 Treaty of Sevres.

According to many lawyers, Professor Julius Stone, Howard Grief, Stephen M. Schwebel, Former ICC Judge 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. *** see at end of article Judicial review

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 as Judea 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 the League of Nations, The San Remo and the confirmation by the 1920 Treaty of Sevres .

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 the Jordan River, and since a peace agreement has not and will not be signed between Israel and 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 (which is currently null and void), provides for its part that neither side “does not initiate or commence proceedings which can change the status of the West 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 such Palestine, rather, only to existing states, that is to say, Jordan, Egypt 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.
***Authoritative experts who have declared Israel’s presence in the West Bank, East Jerusalem and the Golan to be legal, include inter alia

Judge Schwebel, a former President of the ICJ, who pronounced “As between Israel, acting defensively in 1948 and 1967, on the one hand, and her Arab neighbors, acting aggressively, in 1948 and 1967, on the other, Israel has the better title in the territory of what was Palestine, including the whole of Jerusalem.” (See Appendix A and http://www.2nd-thoughts.org/id248.html )
Professor Julius Stone, one of the twentieth century’s leading authorities on the Law of Nations. See http://www.2nd-thoughts.org/id160.html
Eugene W. Rostow, US Undersecretary of State for Political Affairs between 1966 and 1969 who played a leading role in producing the famous Resolution 242.
See http://www.2nd-thoughts.org/id45.html
Jacques Gauthier, a non-Jewish Canadian lawyer who spent 20 years researching the legal status of Jerusalem leading to the conclusion on purely legal grounds, ignoring religious claims that Jerusalem belongs to the Jews, by international law. See http://www.youtube.com/watch?v=28qwcVPNy3E
andhttp://www.israelnationalnews.com/News/News.aspx/125049#.TkAg4mGuySo
William M. Brinton, who appealed against a US district court’s withholding of State Department documents concerning US policy on issues involvingIsrael and the West Bank, the Golan Heights, and the Gaza Strip. He showed that none of these areas fall within the definition of “occupied territories” and that any claim that the West Bank, the Gaza Strip, or both, is a Palestinian homeland to which the Palestinians have a ‘legitimate right’ lacks substance and does not survive legal analysis. According to Mr. Brinton no state, other than Israel, can show a better title to the West Bank.
Sir Elihu Lauterpacht CBE QC., the British specialist in international law, who concludes inter alia that sovereignty over Jerusalem already vested in Israel when the 1947 partition proposals were rejected and aborted by Arab armed aggression.
· Simon H. Rifkind, Judge of the United States District Court, New York who wrote an in depth analysis “The basic equities of the Palestine problem” (Ayer Publishing, 1977) that was signed by Jerome N. Frank, Judge of the United States Circuit Court of Appeals Second Circuit; Stanley H. Fuld, Judge of the Court of Appeals of the State of New York; Abrahan Tulin, member of the New York Bar; Milton Handler, Professor of law, Columbia University; Murray L. Gurfein, member of the New York Bar; Abe Fortas, former Undersecretary of Interior of the United States and Lawrence R. Eno, member of the New York Bar. They jointly stated that justice and equity are on the side of the Jews in this document that they described as set out in the form of a lawyer’s brief.

YJ Draiman

P.S.

“who controls the energy supply controls whole continents”;

“who controls water sources controls life”.

“Who controls the food supply controls the people”;

“who controls money controls the world”;