INTERNATIONAL LAW AND JERUSALEM - JACQUES PAUL GAUTHIER

INTERNATIONAL LAW AND JERUSALEM - JACQUES PAUL GAUTHIER

by Thomas Ice
The Bible teaches that God gave to the Jewish people the land of Israel.
This is repeated many times throughout the Bible. God’s viewpoint on this matter
is what ultimately matters since He will at some point in the future implement His
will. If God says something then that settles it, that decree will surely come to pass.
However, it is interesting to note that international law is and has always been on the
side of the reestablishment of the modern state of Israel. Furthermore, the law also
supports the claim that Jerusalem belongs to the Jews and that the Arabs have no
legitimate legal claim upon Judaism’s most holy location.

JACQUES PAUL GAUTHIER
Canadian lawyer Jacques Paul Gauthier recently finished a twenty-year
project in which this Gentile Christian researched at the University of Geneva
political science department and international law school, the legal issues relating to the ownership of Israel and Jerusalem. Gauthier’s PhD thesis was completed in 2007 and is entitled:
“Sovereignty Over The Old City of Jerusalem.”1 Dr. Gauthier has
demonstrated in painstaking detail in his thesis of over 1,200 pages the following
conclusion:
After our examination of the principles of international law pertaining to
belligerent occupation, we have concluded that Israel has the right to occupy
the territories under its control since 1967, including East Jerusalem and
its Old City, until a peace treaty is concluded.2
Since Gauthier’s publication was a PhD thesis, he had to painstakingly
document every opinion or conclusion with legal and historical facts. Had the
readers of his thesis not agreed with the information in his work they would not have accepted Gauthier’s thesis. This means that Gauthier’s work is the most authoritative opinion covering the international status of the old city of Jerusalem and the land of Israel.
So what is Dr. Gauthier’s argument?
GREAT BRITAIN’S ROLE
Gauthier notes that the Balfour Declaration of November 2, 1917 did not
have the status of international law, at least not when issued. However, it did
become the official policy of the British government that bound Great Britain to pursue the founding of a future state of Israel and granting them self-determination. The United Kingdom took the next step toward founding the Jewish state when General Allenby captured Jerusalem on December 11, 1917 and then the rest of Palestine (Israel).On January 3, 1919 Chaim Weizmann, who was the leader and representative of the Zionist Organization on behalf of the Jewish people, met with Emir Feisal, who represented the Arab Kingdom of Hedjaz
THE MANDATE
On July 1, 1920 the British military administration, which had controlled
Palestine since December 1917, was replaced by a British civil administration
covering all of Palestine on both sides of the Jordan River, with its headquarters in
Jerusalem. The Mandate instructed Great Britain that she would oversee Palestine with the goal of the establishment of a national home for the Jewish people in Palestine. At the time of the issuance of the Mandate, it was believed that there were not enough Jews in the land to establish a nation. Thus, Great Britain was to oversee the immigration of Jews to the land and when there were enough then Palestine would become the national homeland for the Jewish people. However, normally, Britain obstructed the goal of developing a Jewish homeland in Palestine.
As the League of Nations was dissolved in 1946, the United Nations, which was
founded in 1945, began to deal with the Palestine issue. The UN General
Assembly passed a Partition Resolution (Resolution 181) on November 29, 147. This UN resolution adopted the necessary legal status from the League of Nations
needed for Israel to declare her independence on May 14, 1948. Under 181, the land of Palestine Page was partitioned and part of Palestine was given to the Arabs and the rest was given to Israel, except Jerusalem was to become an international city. Gauthier tells us, “The special international regime for the corpus separatum which was to be established on or prior to October 1, 1948 was to remain in force for a period of ten years.
At the end of that period, ‘the residents of the City shall be . . . free to express by
means of a referendum their wishes as to possible modifications of the regime of the
City.’”4 The Arabs rejected resolution 181 and attacked the Jews resulting in a larger
land area for Israel when the fighting stopped in 1949. Israel’s war for independence
also prevented Jerusalem from becoming an international city. The promised election by October 1959 to determine to whom Jerusalem belonged never took place. There is no doubt that the city would have voted for Israel if an election had taken place. Thus, all of the legal rights to the Old City of Jerusalem belong to Israel and the Jews.
CONCLUSIONGauthier’s work, which I have only provided a glimpse into, demonstrates
that both the land of Israel and the Old City of Jerusalem belong to Israel and the
Jews based upon the standards of international law. When commentators appear on the media today and start talking about how Israel is violating international law
with their occupation, they are absolutely without any basis in the truth. These
advocates for the Arab occupation of Jewish land have no legal basis to stand. However, that does not seem to bother them since they are lawless and many hope through jihad to take over Israel. Most of these spokesmen really do not care about the law, international or otherwise.
The facts are that both the Bible and even international law says that theland of Israel and Jerusalem belong to the Jewish people. The fact that many
within the international community know this information means nothing. Today the
Gentile nations are in an uproar, while increasingly clamoring for the
extermination of the nation and people of Israel. Yet, the hand of God’s providence has restored His people to their land while still primarily in unbelief. We increasingly see the lawless attitudes of the nations constantly on display as they certainly do not care about God’s Word, nor do they heed the clear mandates of man made international law. So it will be in the end, as at the beginning and throughout her history, that Israel will have to be saved by the actual hand of God as He interrupts history in order to save His people.
Today’s hatred toward Israel is just a warm-up for the real heat of the furnace of the
tribulation, from which God will redeem the nation of Israel through the coming of Messiah.
Since mankind does not recognize God and His law, nevertheless, He will impose
it upon humanity one day. Maranatha!

ENDNOTES1 Jacques Paul Gauthier, “Sovereignty Over The Old City of Jerusalem: A
Study of the Historical, Religious, Political and Legal Aspects of the Question of the Old City,” PhD Thesis, University of Geneva International Law School, 2007).
2 Gauthier, “Sovereignty Over Jerusalem,” p. 848.
3 Cited by Gauthier, “Sovereignty Over Jerusalem,” p. 356 from Documents
on British Foreign Policy, 1919–1939, vol. IV, No. 242, p. 345. Page
4 Gauthier, “Sovereignty Over Jerusalem,” pp. 599–600. Citation by
Gauthier is from Article D, Part III of the Partition Resolution.


As Professor Stephen Schwebel, former judge on the Hague's International Court of Justice notes:


The Palestinian claim to sovereignty over east Jerusalem under the principle of self-determination of peoples cannot supersede the Jewish right to self-determination in Jerusalem. While Arabs constituted an ethnic majority only in the artificial entity of "East Jerusalem" created by Jordan's illegal division of the city, the armistice lines forming this artificial entity were never intended to determine the borders of, or political sovereignty over, the city. Moreover, Jews constituted the majority ethnic group in unified Jerusalem both in the century before Jordan's invasion, and since 1967 (the exception being during Jordan's illegal occupation).


Sir Elihu Lauterpacht, an international legal expert, scholar and director emeritus of the Lauterpacht Centre for International Law at the University of Cambridge, details the legal justification for Israel's sovereignty in east Jerusalem. According to the scholar, "Jordan's occupation of the Old City–and indeed of the whole of the area west of the Jordan river entirely lacked legal justification" and was simply a "de facto occupation protected by the Armistice Agreement." This occupation ended as a result of "legitimate measures" of self defense by Israel, thereby opening the way for Israel as "a lawful occupant" to fill a sovereignty vacuum left by Britain's withdrawal from the territory in 1948.

furthermore:

A state acting in lawful exercise of its right of self-defense may seize and occupy foreign territory as long as such seizure and occupation are necessary to its self-defense......Where the prior holder of territory had seized that territory unlawfully, the state which subsequently takes that territory in the lawful exercise of self-defense has, against that prior holder, better title.

As Schwebel explains, "Jordan's seizure [in 1948] and subsequent annexation of the West Bank and the old city of Jerusalem were unlawful," arising as they did from an aggressive act. Jordan therefore had no valid title to east Jerusalem. When Jordanian forces attacked Jerusalem in 1967, Israeli forces, acting in self defense, repelled Jordanian forces from territory Jordan was illegitimately occupying. Schwebel maintains that in comparison to Jordan, "Israeli title in old (east) Jerusalem is superior." And in comparison to the UN, which never asserted sovereignty over Jerusalem and allowed its recommendation of a corpus separatum to lapse and die, he sees Israel's claim to Jerusalem as similarly superior. 

The “Mandate for (JEWISH) Palestine” is Valid to This Day

The Mandate survived the demise of the League of Nations.

Article 80 of the UN Charter implicitly recognizes the “Mandate for Palestine” of the League of Nations. This Mandate granted Jews the irrevocable right to settle anywhere in (JEWISH) Palestine, the area between the Jordan River and the Mediterranean Sea, a right unaltered in international law and valid to this day. Jewish settlements in Judea and Samaria (i.e. the West Bank), Gaza and the whole of Jerusalem are legal. The International Court of Justice reaffirmed the meaning and validity of Article 80 in three separate cases:

• ICJ Advisory Opinion of July 11, 1950: in the “question concerning the International States of South West Africa.”33

• ICJ Advisory Opinion of June 21, 1971: “When the League of Nations was dissolved, the raison d’etre [French: “reason for being”] and original object of these obligations remained. Since their fulfillment did not depend on the existence of the League, they could not be brought to an end merely because the supervisory organ had ceased to exist. ... The International Court of Justice has consistently recognized that the Mandate survived the demise of the League [of Nations].”34

• ICJ Advisory Opinion of July 9, 2004: regarding the “legal consequences of the construction of a wall in the occupied (JEWISH) Palestinian territory.”35 In other words, neither the ICJ nor the UN General Assembly can arbitrarily change the status of Jewish settlement as set forth in the “Mandate for Palestine,” an international accord that has never been amended.

All of western (JEWISH) Palestine, from the Jordan River to the Mediterranean Sea, including the West Bank and Gaza, remains open to Jewish settlement under international law. Professor Eugene Rostow concurred with the ICJ’s opinion as to the “sacredness” of trusts such as the “Mandate for (JEWISH) Palestine”:

“‘A trust’—as in Article 80 of the UN Charter—does not end because the trustee dies ... the Jewish right of settlement in the whole of western Palestine—the area west of the Jordan—survived the British withdrawal in 1948. ... They are parts of the mandate territory, now legally occupied by Israel with the consent of the Security Council.”36 The British Mandate left intact the Jewish right to settle in Judea, Samaria and the Gaza Strip. Explains Professor Rostow:

“This right is protected by Article 80 of the United Nations Charter, which provides that unless a trusteeship agreement is agreed upon (which was not done for the Palestine Mandate), nothing in the chapter shall be construed in and of itself to alter in any manner the rights whatsoever of any states or any peoples or the terms of existing international instruments to which members of the United Nations may respectively be parties.