LEGAL RIGHTS AND TITLE OF SOVEREIGNTY OF
THE JEWISH PEOPLE TO THE LAND OF ISRAEL AND PALESTINE UNDER INTERNATIONAL LAW
by Howard Grief
The
objective of this paper is to set down in a brief, yet clear and precise manner
the legal rights and title of sovereignty of the Jewish people to the Land of Israel and Palestine under international law. These rights
originated in the global political and legal settlement, conceived during World
War I and carried into execution in the post-war years between 1919 and 1923.
Insofar as the Ottoman Turkish Empire was concerned, the settlement embraced
the claims of the Zionist Organization, the Arab National movement, the Kurds,
the Assyrians and the Armenians.
As part
of the settlement in which the Arabs received most of the lands formerly under
Turkish sovereignty in the Middle East, the whole of Palestine, on both sides of the Jordan, was reserved exclusively for the Jewish
people as their national home and future independent state.
Under
the terms of the settlement that were made by the Principal Allied Powers
consisting of Britain, France, Italy and Japan, there would be no annexation of
the conquered Turkish territories by any of the Powers, as had been planned in
the secret Sykes-Picot Agreement of May 9 and 16, 1916. Instead, these
territories, including the peoples for whom they were designated, would be
placed under the Mandates System and administered by an advanced nation until
they were ready to stand by themselves. The Mandates System was established and
governed by Article 22 of the Covenant of the League of Nations, contained in the Treaty of Versailles and
all the other peace treaties made with the Central Powers - Germany, Austria-Hungary, Bulgaria and Turkey. The Covenant was the idea of US President
Woodrow Wilson and contained in it his program of Fourteen Points of January 8,
1918, while Article 22 which established the Mandates System, was largely the
work of Jan Christiaan Smuts who formulated the details in a memorandum that
became known as the Smuts Resolution, officially endorsed by the Council of Ten
on January 30, 1919, in which Palestine as envisaged in the Balfour Declaration
was named as one of the mandated states to be created. The official creation of
the country took place at the San Remo Peace Conference where the Balfour
Declaration was adopted by the Supreme Council of the Principal Allied Powers
as the basis for the future administration of Palestine which would henceforth be recognized as
the Jewish National Home.
The
moment of birth of Jewish legal rights and title of sovereignty thus took place
at the same time Palestine was created a mandated state, since it was created for no
other reason than to reconstitute the ancient Jewish state of Judea in fulfillment of the Balfour Declaration
and the general provisions of Article 22 of the League Covenant. This meant
that Palestine from the start was legally a Jewish state
in theory that was to be guided towards independence by a Mandatory or Trustee,
also acting as Tutor, and who would take the necessary political,
administrative and economic measures to establish the Jewish National Home. The
chief means for accomplishing this was by encouraging large-scale Jewish
immigration to Palestine, which would eventually result in making Palestine an
independent Jewish state, not only legally but also in the demographic and
cultural senses.
The
details for the planned independent Jewish state were set forth in three basic
documents, which may be termed the founding documents of mandated Palestine and the modern Jewish state of Israel that arose from it. These were the San
Remo Resolution of April 25, 1920, the Mandate for Palestine conferred on Britain by the Principal Allied Powers and
confirmed by the League
of Nations on July
24, 1922, and the
Franco-British Boundary Convention of December 23, 1920. These founding documents were
supplemented by the Anglo-American Convention of December 3, 1924 respecting the Mandate for Palestine. It is of supreme importance to remember
always that these documents were the source or well-spring of Jewish legal
rights and title of sovereignty over Palestine and the Land of Israel under
international law, because of the near-universal but completely false belief
that it was the United Nations General Assembly Partition Resolution of
November 29, 1947 that brought the State of Israel into existence. In fact, the
UN resolution was an illegal abrogation of Jewish legal rights and title of
sovereignty to the whole of Palestine and the Land of Israel, rather than an affirmation of such rights
or progenitor of them.
The San
Remo Resolution converted the Balfour Declaration of November 2, 1917 from a
mere statement of British policy expressing sympathy with the goal of the
Zionist movement to create a Jewish state into a binding act of international
law that required specific fulfillment by Britain of this object in active
cooperation with the Jewish people. Under the Balfour Declaration as originally
issued by the British government, the latter only promised to use their best
endeavors to facilitate the establishment in Palestine of a national home for the Jewish people.
But under the San Remo Resolution of April 24-25, 1920, the Principal Allied Powers as a cohesive
group charged the British government with the responsibility or legal
obligation of putting into effect the Balfour Declaration. A legal onus was
thus placed on Britain to ensure that the Jewish National Home
would be duly established. This onus the British Government willingly accepted
because at the time the Balfour Declaration was issued and adopted at the San
Remo Peace Conference, Palestine was considered a valuable strategic asset and
communications center, and so a vital necessity for protecting far-flung
British imperial interests extending from Egypt to India. Britain was fearful of having any major country or
power other than itself, especially France or Germany, positioned alongside the Suez Canal.
The
term "Jewish National Home" was defined to mean a state by the
British government at the Cabinet session which approved the Balfour
Declaration on October 31, 1917. That was also the meaning originally
given to this phrase by the program committee which drafted the Basel Program
at the first Zionist Congress in August 1897 and by Theodor Herzl, the founder
of the Zionist Organization. The word "home" as used in the Balfour
Declaration and subsequently in the San Remo Resolution was simply the
euphemism for a state originally adopted by the Zionist Organization when the
territory of Palestine was subject to the rule of the Ottoman Empire, so as not
to arouse the sharp opposition of the Sultan and his government to the Zionist
aim, which involved a potential loss of this territory by the Empire. There was
no doubt in the minds of the authors of the Basel Program and the Balfour
Declaration regarding the true meaning of this word, a meaning reinforced by
the addition of the adjective "national" to "home".
However, as a result of not using the word "state" directly and
proclaiming that meaning openly or even attempting to hide its true meaning
when it was first used to denote the aim of Zionism, ammunition was provided to
those who sought to prevent the emergence of a Jewish state or who saw the Home
only in cultural terms.
The
phrase "in Palestine", another expression found in the Balfour Declaration
that generated much controversy, referred to the whole country, including both
Cisjordan and Transjordan. It was absurd to imagine that this phrase
could be used to indicate that only a part of Palestine was reserved for the future
Jewish National Home, since both were created simultaneously and used
interchangeably, with the term "Palestine" pointing out the
geographical location of the future independent Jewish state. Had "Palestine" meant a partitioned country with
certain areas of it set aside for Jews and others for Arabs, that intention
would have been stated explicitly at the time the Balfour Declaration was
drafted and approved and later adopted by the Principal Allied Powers. No such
allusion was ever made in the prolonged discussions that took place in
fashioning the Declaration and ensuring it international approval.
There
is therefore no juridical or factual basis for asserting that the phrase
"in Palestine" limited the establishment of the
Jewish National Home to only a part of the country. On the contrary, Palestine
and the Jewish National Home were synonymous terms, as is evidenced by the use
of the same phrase in the second half of the Balfour Declaration which refers
to the existing non-Jewish communities "in Palestine", clearly
indicating the whole country. Similar evidence exists in the preamble and terms
of the Mandate Charter.
The San
Remo Resolution on Palestine combined the Balfour Declaration with Article 22 of the
League Covenant. This meant that the general provisions of Article 22 applied
to the Jewish people exclusively, who would set up their home and state in Palestine. There was no intention to apply Article
22 to the Arabs of the country, as was mistakenly concluded by the Palestine
Royal Commission which relied on that article of the Covenant as the legal
basis to justify the partition of Palestine, apart from the other reasons it gave. The
proof of the applicability of Article 22 to the Jewish people, including not
only those in Palestine at the time, but those who were expected to arrive in
large numbers in the future, is found in the Smuts Resolution, which became
Article 22 of the Covenant. It specifically names Palestine as one of the countries to which this
article would apply. There was no doubt that when Palestine was named in the
context of Article 22, it was linked exclusively to the Jewish National Home,
as set down in the Balfour Declaration, a fact everyone was aware of at the
time, including the representatives of the Arab national movement, as evidenced
by the agreement between Emir Feisal and Dr. Chaim Weizmann dated January 3,
1919 as well as an important letter sent by the Emir to future US Supreme Court
Justice Felix Frankfurter dated March 3, 1919. In that letter, Feisal
characterized as "moderate and proper" the Zionist proposals
presented by Nahum Sokolow and Weizmann to the Council of Ten at the Paris
Peace Conference on February 27, 1919, which called for the development of Palestine into a Jewish commonwealth with extensive
boundaries. The argument later made by Arab leaders that the Balfour
Declaration and the Mandate for Palestine were incompatible with Article 22 of the
Covenant is totally undermined by the fact that the Smuts Resolution - the
precursor of Article 22 - specifically included Palestine within its legal framework.
The San
Remo Resolution on Palestine became Article 95 of the Treaty of Sevres which
was intended to end the war with Turkey, but though this treaty was never
ratified by the Turkish National Government of Kemal Ataturk, the Resolution
retained its validity as an independent act of international law when it was
inserted into the Preamble of the Mandate for Palestine and confirmed by 52
states. The San Remo Resolution is the base document upon which the Mandate was
constructed and to which it had to conform. It is therefore the pre-eminent
foundation document of the State of Israel and the crowning achievement of
pre-state Zionism. It has been accurately described as the Magna Carta of the
Jewish people. It is the best proof that the whole country of Palestine and the Land of Israel belong exclusively to the Jewish people
under international law.
The
Mandate for Palestine implemented both the Balfour Declaration and Article 22 of
the League Covenant, i.e. the San Remo Resolution. All four of these acts were
building blocks in the legal structure that was created for the purpose of
bringing about the establishment of an independent Jewish state. The Balfour
Declaration in essence stated the principle or object of a Jewish state. The
San Remo Resolution gave it the stamp of international law. The Mandate
furnished all the details and means for the realization of the Jewish state. As
noted, Britain's chief obligation as Mandatory, Trustee
and Tutor was the creation of the appropriate political, administrative and
economic conditions to secure the Jewish state. All 28 articles of the Mandate
were directed to this objective, including those articles that did not
specifically mention the Jewish National Home. The Mandate created a right of
return for the Jewish people to Palestine and the right to establish settlements on
the land throughout the country in order to create the envisaged Jewish state.
In
conferring the Mandate for Palestine on Britain, a contractual bond was created between
the Principal Allied Powers and Britain, the former as Mandator and the latter as
Mandatory. The Principal Allied Powers designated the Council of the League of Nations as the supervisor of the Mandatory to
ensure that all the terms of the Mandate Charter would be strictly observed.
The Mandate was drawn up in the form of a Decision of the League Council
confirming the Mandate rather than making it part of a treaty with Turkey signed by the High Contracting Parties, as
originally contemplated. To ensure compliance with the Mandate, the Mandatory
had to submit an annual report to the League Council reporting on all its
activities and the measures taken during the preceding year to realize the
purpose of the Mandate and for the fulfillment of its obligations. This also
created a contractual relationship between the League of Nations and Britain.
The
first drafts of the Mandate for Palestine were formulated by the Zionist
Organization and were presented to the British delegation at the Paris Peace
Conference in 1919. The content, style and mold of the Mandate was thus
determined by the Zionist Organization. The British Peace Delegation at the
Conference produced a draft of their own and the two then cooperated in
formulating a joint draft. This cooperation which took place while Arthur James
Balfour was Foreign Minister came to an end only after Lord Curzon, the Foreign
Secretary who replaced Balfour on October 24, 1919, took personal charge of the Mandate
drafting process in March 1920. He shut out the Zionist Organization from
further direct participation in the actual drafting, but the Zionist leader,
Chaim Weizmann, was kept informed of new changes made in the Draft Mandate and
allowed to comment on them. The changes engineered by Curzon watered down the
obvious Jewish character of the Mandate, but did not succeed in suppressing its
aim - the creation of a Jewish state. The participation of the Zionist
Organization in the Mandate drafting process confirmed the fact that the Jewish
people were the exclusive beneficiary of the national rights enshrined in the
Mandate. No Arab party was ever consulted regarding its views on the terms of
the Mandate prior to the submission of this instrument to the League Council
for confirmation, on December 6, 1920. By contrast, the civil and religious
rights of all existing religious communities in Palestine, whether Moslem or
Christian, were safeguarded, as well as the civil and religious rights of all
the inhabitants of Palestine, irrespective of race and religion. The rights of
Arabs, whether as individuals or as members of religious communities, but not
as a nation, were therefore legally assured. In addition, no prejudice was to
be caused to their financial and economic position by the expected growth of the
Jewish population.
It was
originally intended that the Mandate Charter would delineate the boundaries of Palestine, but that proved to be a lengthy process
involving negotiations with France over the northern and northeastern borders
of Palestine with Syria. It was therefore decided to fix these
boundaries in a separate treaty, which was done in the Franco-British Boundary
Convention of December 23, 1920. The borders were based on a formula first
put forth by the British Prime Minister David Lloyd George when he met his
French counterpart, Georges Clemenceau, in London on December 1, 1918 and
defined Palestine as extending from the ancient towns of Dan to Beersheba. This
definition was immediately accepted by Clemenceau, which meant that Palestine would have the borders that included all
areas of the country settled by the Twelve Tribes of Israel during the First
Temple Period, embracing historic Palestine both east and west of the Jordan River. The very words "from Dan to Beersheba" implied that the whole of Jewish
Palestine would be reconstituted as a Jewish state. Though the San Remo
Resolution did not specifically delineate the borders of Palestine, it was understood by the Principal Allied
Powers that this formula would be the criterion to be used in delineating them.
However, when the actual boundary negotiations began after the San Remo Peace
Conference, the French illegally and stubbornly insisted on following the
defunct Sykes-Picot line for the northern border of Palestine, accompanied by
Gallic outbursts of anti-Semitic and anti-Zionist sentiments, though they
agreed to extend this border to include the Galilee but not any of the water
sources from the Litani valley and the land adjoining it. As a result, some
parts of historic Palestine in the north and northeast were illegally excluded from the
Jewish National Home. The 1920 Boundary Convention was amended by another
British-French Agreement respecting the boundary line between Syria and Palestine dated February 3, 1922, which took effect on March
10, 1923. It
illegally removed the portion of the Golan that had previously been included in
Palestine in the 1920 Convention, in exchange for
placing the Kinneret (Sea of Galilee) wholly within the bounds of the Jewish National Home, and made
other small territorial adjustments. The British and French negotiators had no
legal right to remove or exclude any "Palestine territory" from the limits of Palestine, but could only ensure that all such
territory was included. The exchange of "Palestine territory" for other "Palestine territory" between Britain and France was therefore prohibited as a violation of
the Lloyd George formula accepted at the San Remo Peace Conference.
The
1920 Convention also included Transjordan in the area of the Jewish National Home, but a surprise
last-minute intervention by the US government unnecessarily delayed the
confirmation of the pending Mandate. This gave an unexpected opportunity to
Winston Churchill, the new Colonial Secretary placed in charge of the affairs
of Palestine, to change the character of the Mandate: first, by having a new
article inserted (Article 25) which allowed for the provisional administrative
separation of Transjordan from Cisjordan; second, by redefining the Jewish
National Home to mean not an eventual independent Jewish state but limited to a
cultural or spiritual center for the Jewish people. These radical changes were
officially introduced in the Churchill White Paper of June 3,
1922 and led
directly to the sabotage of the Mandate. Thereafter, the British never departed
from the false interpretation they gave to the Jewish National Home which ended
all hope of achieving the envisaged Jewish state under their auspices.
The
question of which state, nation or entity held sovereignty over a mandated
territory sparked great debate throughout the Mandate period, and no definitive
answer was ever given. That is extremely surprising because the Treaty of
Versailles, signed on June 28, 1919 and ratified on January
10, 1920, stated
flatly in Article 22 that the states which formerly governed those territories
which were subsequently administered by a Mandatory had lost their sovereignty
as a consequence of World War I. That meant that Germany no longer had sovereignty over its former
colonies in Africa and the Pacific, while Turkey no longer had sovereignty over its
possessions in the Middle
East, prior to
the signing of the Treaty of Versailles. The date when the change of
sovereignty occurred could only have been on January 30, 1919, the date when it
was irrevocably decided by the Council of Ten in adopting the Smuts Resolution,
that none of the ex-German and ex-Turkish territories would be returned to
their former owners. These territories were then placed in the collective hands
of the Principal Allied and Associated Powers for their disposition. In the
case of Palestine, that decision was made in favor of the
Jewish people at the session of the San Remo Peace Conference that took place
on April 24, 1920 when the Balfour Declaration was adopted as the reason for creating
and administering the new country of Palestine that, until then, had had no official
existence. Inasmuch as the Balfour Declaration was made in favor of the Jewish
people, it was the latter upon whom de jure sovereignty was devolved over all
of Palestine. However, during the Mandate period, the
British government and not the Jewish people exercised the attributes of
sovereignty, while sovereignty in the purely theoretical or nominal sense (i.e.
de jure sovereignty) remained vested in the Jewish people. This state of
affairs was reflected in the Mandate Charter where the components of the title
of sovereignty of the Jewish people over Palestine are specifically mentioned in the first
three recitals of the Preamble, namely, Article 22, the Balfour Declaration and
the historical connection of the Jewish people with Palestine. These three components of the title of
sovereignty were the grounds for reconstituting the Jewish National Home in Palestine as specifically stated in the third
recital of the Preamble. On the other hand, since the Jewish people were under
the tutelage of Great Britain during the Mandate Period, it was the latter
which exercised the attributes of Jewish sovereignty over Palestine, as
confirmed by Article 1 of the Mandate, which placed full powers of legislation
and of administration in the hands of the Mandatory, save as they may be
limited by the terms of the Mandate.
This
situation continued so long as the Mandate was in force and the Jewish people
living in Palestine were not able to stand alone and hence not
able to exercise the sovereignty awarded them by the Principal Allied Powers
under international law.
The
decisive moment of change came on May 14, 1948 when the representatives of the Jewish
people in Palestine and of the Zionist Organization proclaimed
the independence of a Jewish state whose military forces held only a small
portion of the territory originally allocated for the Jewish National Home. The
rest of the country was in the illegal possession of neighboring Arab states who
had no sovereign rights over the areas they illegally occupied, that were
historically a part of Palestine and the Land of Israel and were not meant for Arab independence
or the creation of another Arab state. It is for this reason that Israel, which
inherited the sovereign rights of the Jewish people over Palestine, has the
legal right to keep all the lands it liberated in the Six Day War that were
either included in the Jewish National Home during the time of the Mandate or
formed integral parts of the Land of Israel that were illegally detached from
the Jewish National Home when the boundaries of Palestine were fixed in 1920
and 1923. For the same reason, Israel cannot be accused by anyone of
"occupying" lands under international law that were clearly part of
the Jewish National Home or the Land of Israel. Thus the whole debate today that centers
on the question of whether Israel must return "occupied
territories" to their alleged Arab owners in order to obtain peace is one
of the greatest falsehoods of international law and diplomacy.
The
most amazing development concerning the question of sovereignty over Palestine is that the State of Israel, when it
finally had an opportunity to exercise its sovereignty over all of the country
west of the Jordan, after being victorious in the Six Day War
of June 5-10, 1967, did not do so - except in the case of Jerusalem. The Knesset did, however, pass an
amendment to the Law and Administration Ordinance of 1948, adding Section 11B,
which allowed for that possibility and was premised on the idea that Israel possessed such sovereignty. Israel did not even enforce the existing law on
sovereignty passed by the Ben Gurion government in September 1948, known as the
Area of Jurisdiction and Powers Ordinance, which required it to incorporate
immediately any area of the Land of Israel which the Minister of Defense had defined
by proclamation as being held by the Defense Army of Israel.
Israel's
legal rights and title of sovereignty over all of the Land of Israel -
specifically in regard to Judea, Samaria and Gaza - suffered a severe setback
when the Government of Prime Minister Menahem Begin approved the Camp David
Framework Agreement for Peace in the Middle East, under which it was proposed
that negotiations would take place to determine the "final status" of
those territories. The phrase "final status" was a synonym for the
word "sovereignty". It was inexcusable that neither Begin nor his
legal advisers, including Aharon Barak, the future President of the Israel
Supreme Court, knew that sovereignty had already been vested in the Jewish
people and hence the State of Israel many years before, at the San Remo Peace
Conference. The situation became much worse, reaching the level of treason when
the Government of Prime Minister Yitzhak Rabin signed the Declaration of
Principles (DOP) with the Palestine Liberation Organization (PLO) and agreed to
give it about 90% or more of Judea and Samaria and most of Gaza over a
five-year transitional period in order to "achieve a just, lasting and
comprehensive peaceful settlement and historic reconciliation through the
agreed political process" with the Arabs of Palestine. The illegal
surrender of territory to the "Palestinian Authority" originally
called the "Council" in Article IV of the DOP was hidden by the use
of the word "jurisdiction" instead of "sovereignty" in that
article. Further dissimulation was shown by the sanitized reference to
"redeployment of Israeli military forces in Judea, Samaria and the Gaza Strip" to disguise the
illegal act of transferring parts of the Jewish National Home to the PLO. A
spade was not called a spade.
To
understand why even the State of Israel does not believe in its own title of
sovereignty over what are wrongfully termed "occupied territories"
even by leading politicians and jurists in Israel, it is necessary to locate the causes in
the Mandate period:
1. The non-ratification of the Treaty of
Sevres of August 10, 1920 with Turkey which contained the San Remo Resolution
on Palestine and the non-inclusion of this Resolution in the Treaty of Lausanne
of July 24, 1923. This gave the wrong impression that the legal status of Palestine as a whole was never settled definitively
as being the Jewish National Home under international law and that Turkey did not lose its sovereignty until the
signing of this latter treaty.
2. The non-enforcement of most of the terms of
the Mandate within Palestine itself, according to their true intent and meaning, by both
the British government and the British-administered judiciary which servilely
served the former to the point of misfeasance.
3. The deliberate misinterpretation of the
meaning of the Mandate by the British government to include obligations of
equal weight which it supposedly had undertaken in favor of the Arabs of
Palestine, when in actual fact no such obligations ever existed, particularly
the obligation to develop self-governing institutions for their benefit, which
- on the contrary - were meant for the Jewish National Home.
4. The issuance of several White Papers
beginning with the Churchill White Paper of June 3, 1922 and culminating with
the Malcolm MacDonald White Paper of May 17, 1939, whose effect was to nullify
the fundamental terms of the Mandate and prevent a Jewish state covering the
whole of Palestine from ever coming into being during the British
administration of the country. What the British essentially did in governing Palestine was to implement their false
interpretations of the Mandate rather than its plain language and meaning. This
turned the Mandate Charter upside down and made its aim of a Jewish state
unrealizable.
5. The illegal introduction of Article 25 into
the Mandate Charter that after its application on September 16, 1922 led to the
dislocation of Transjordan from the Jewish National Home and also had a deleterious
influence on the administration of Cisjordan by encouraging the false idea that
Arab national rights existed not only in the severed part of the Jewish
National Home across the Jordan, but in the remaining part as well.
The end
result of British sabotage, misinterpretation, distortion and outright denial
of what the Mandate stood for was that Jewish legal rights and title of
sovereignty over the whole of Palestine as originally envisaged in the San Remo
Resolution and the Mandate became so blurred, obfuscated and confused by the
time the Mandate ended that it was no longer understood or held to be true. Not
even the legal experts of the Jewish Agency for Palestine and the Zionist Organization asserted
Jewish sovereignty over the whole country in any official paper or memorandum
submitted to the British government or to the League of Nations.
The
mutilation of the Mandate Charter was continued by the United Nations when this
new world organization considered the question of Palestine. On August 31, 1947, the United Nations Special Committee on
Palestine (UNSCOP) proposed an illegal partition plan which recognized Arab
national rights in western Palestine, specifically in the areas of western Galilee, Judea, Samaria, the southern coastal plain from Ashdod to the Egyptian frontier and a portion of
the western Negev including Beersheba and what became Eilat. It apparently did
not occur to the members of the Committee representing 11 states headed by
Swedish Chief Justice Emil Sandstrom, that the UN did not have the legal
authority to partition the country in favor of the Arabs of Palestine who were
not the national beneficiary of the Mandate entitled to self-determination. The
trampling of the legal rights of the Jewish people to the whole of Palestine by
the United Nations was in clear violation of the Mandate which forbade
partition and also Article 80 of the UN Charter which, in effect, prevented the
alteration of Jewish rights granted under the Mandate whether or not a
trusteeship was set up to replace it, which could only be done by a prior
agreement made by the states directly concerned. The illegal partition plan,
with some territorial modifications made in the original majority plan
presented by UNSCOP, was then approved by the General Assembly on November
29, 1947 as
Resolution 181 (II). The Jewish Agency for Palestine, recoiling from the loss of six million
Jews in the Holocaust and trying to salvage something from British misrule of Palestine, accepted this illegal Resolution. By
doing so, it lent credence to the false idea that Palestine belonged to both Arabs and Jews, which was
an idea foreign to the San Remo Resolution, the Mandate and the Franco-British
Boundary Convention of December 23, 1920. The Jewish Agency should have relied on
these three documents exclusively in declaring the Jewish state over all of Palestine, even if it was unable to control all
areas of the country, following the example of what was done in Syria and Lebanon during World War II.
Another
facet of the story that concerned the illegal denial of Jewish legal rights and
title of sovereignty over Palestine was the attitude adopted by the United States government towards the infamous British
White Paper of May 17, 1939. The United States agreed to the British administration of Palestine pursuant to the Mandate when it signed and
ratified the Anglo-American Convention of December 3, 1924. This imposed a solemn obligation on the US government to protest any British
violation of this treaty, which had repeated every word, jot and tittle of the
Mandate Charter in the preamble of the Convention, regardless of whether the
violation affected American rights or those of the Jewish people. Yet when the
White Paper was issued in the year of 1939, the US government did not lift a finger to point
out the blaring illegalities contained in the new statement of British policy
that smashed to smithereens the Balfour Declaration and the Mandate, and
brought immense joy to the Arab side. It accepted the incredible British
contention that changes in the terms of the Mandate effected by the White Paper
did not require American consent because no US rights or those of its nationals were
impaired, an argument that was demonstrably false. This US passivity in the
face of British perfidy, which was strongly denounced by the venerable David
Lloyd George and even by Winston Churchill who had himself contributed to the
betrayal of the Jewish people and their rights to Palestine, allowed the
British government to get away with the highest violation of international law
at the very moment when the Jewish people were about to suffer the greatest
catastrophe in their history. There can be no doubt that the Holocaust could
have largely been prevented or its effects greatly mitigated had the terms of
the Mandate been duly implemented to allow for a massive influx of Jews to
their national home.
American
inaction against the British government was particularly unforgivable in view
of the fact that the articles of the Mandate were a part of American domestic
law and the US was the only state which could have forced the British to
repudiate the malevolent White Paper and restore the right of the Jews of
Europe to gain refuge in their homeland.
Both
the Mandate and the Anglo-American Convention have ceased to exist. However,
all the rights of the Jewish people that derive from the Mandate remain in full
force. This is the consequence of the principle of acquired legal rights which,
as applied to the Jewish people, means that the rights they acquired or were
recognized as belonging to them when Palestine was legally created as the
Jewish National Home are not affected by the termination of the treaty or the
acts of international law which were the source of those rights. This principle
already existed when the Anglo-American Convention came to an end
simultaneously with the termination of the Mandate for Palestine on May 14-15, 1948. It has since been codified in Article
70(1)(b) of the 1969 Vienna Convention on the Law of Treaties. This principle
of international law would apply even if one of the parties to the treaty
failed to perform the obligations imposed on it, as was the case with the
British government in regard to the Mandate for Palestine.
The
reverse side of the principle of acquired legal rights is the doctrine of
estoppel which is also of great importance in preserving Jewish national
rights. This doctrine prohibits any state from denying what it previously
admitted or recognized in a treaty or other international agreement. In the
Convention of 1924, the United States recognized all the rights granted to the
Jewish people under the Mandate, in particular the right of Jewish settlement
anywhere in Palestine or the Land of Israel. Therefore the US government is legally estopped today from
denying the right of Jews in Israel to establish settlements in Judea, Samaria and Gaza, which have been approved by the
government of Israel. In addition, the United States is also debarred from protesting the
establishment of these settlements because they are based on a right which
became embedded in US domestic law after the 1924 Convention was ratified by
the US Senate and proclaimed by President Calvin Coolidge on December
5, 1925. This
convention has terminated, but not the rights granted under it to the Jewish
people. The American policy opposing Jewish settlements in Judea, Samaria and Gaza is a fit subject for judicial review in US
courts because it violates Jewish legal rights formerly recognized by the United States and which still remain part of its
domestic law. A legal action to overturn this policy if it was to be
adjudicated might also put an end to the American initiative to promote a
so-called "Palestinian" state which would abrogate the existing right
of Jewish settlement in all areas of the Land of Israel that fall under its
illegal rule.
The
gravest threat to Jewish legal rights and title of sovereignty over the Land of Israel still comes from the same source that has
always fought the return of the Jews to their homeland, namely, the medley of
Arabic-speaking Gentiles who inhabit the land alongside the Jews. They no
longer call themselves Arabs or Syrians, but "Palestinians". This has
resulted in a switch of national identity. The Palestinians used to be the Jews
during the Mandate Period, but the Arabs adopted the name after the Jews of
Palestine established the State of Israel and began to be called Israelis. The
use of the name "Palestinians" for Arabs did not take general hold
until 1969 when the United Nations recognized the existence of this supposed
new nation, and began passing resolutions thereafter affirming its legitimate
and inalienable rights to Palestine. The whole idea that such a nation exists
is the greatest hoax of the 20th century and continues unabated into the 21st
century. This hoax is easily exposed by the fact that the
"Palestinians" possess no distinctive history, language or culture,
and are not essentially different in the ethnological sense from the Arabs
living in the neighboring countries of Syria, Jordan, Lebanon and Iraq. The very name of the supposed nation is
non-Arabic in origin and derives from Hebrew root letters. The Arabs of
Palestine have no connection or relationship to the ancient Philistines from
whom they have taken their new name.
It is a
matter of the greatest irony and astonishment that the so-called Palestinian
nation has received its greatest boost from Israel itself when it allowed a
"Palestinian" administration to be set up in the areas of Judea, Samaria and Gaza under the leadership of Yasser Arafat.
The
situation in which the Arabs of Palestine and the Land of Israel claim the same
legal rights as the Jewish people violates the authentic international law that
was created by the San Remo Resolution, the Mandate and the 1920 Franco-British
Convention. It is part of the worldwide folly that has occurred since 1969 when
the "Palestinian people" were first accorded international
recognition, that authentic international law has been replaced by an ersatz international law composed of illegal
UN Resolutions. The Fourth Geneva Convention of 1949 and the Hague Regulations
of 1907 are acts of genuine international law, but they have no direct
application or relevance to the legal status of Judea, Samaria and Gaza which
are integral territories of the Jewish National Home and the Land of Israel
under the sovereignty of the State of Israel. These acts would apply only to
the Arab occupation of Jewish territories, as occurred between 1948 and 1967,
and not to the case of Israeli rule over the Jewish homeland. The hoax of the
Palestinian people and their alleged rights to the Land of Israel as well as the farce that results from
citing pseudo-international law to support their fabricated case must be
exposed and brought to an end.
The
Arabs of the Land of Israel have ignited a terrorist war against Israel to recover what they consider to be their
occupied homeland. Their aim is a fantasy based on a gross myth and lie that
can never be satisfied, since that would mean the conversion of the Land of Israel into an Arab country. It is up to the
government of Israel to take the necessary steps to remedy what
has become an intolerable situation that threatens the Jewish people with the
loss of their immutable rights to their one and only homeland.
Howard Grief was born in Montreal,
Canada and made aliyah in 1989. He served as a legal advisor to
Professor Yuval Ne'eman at the Ministry of Energy and Infrastructure in matters
of international law pertaining to the Land
of Israel and Jewish rights thereto. He is a Jerusalem-based attorney
and notary, as well as a specialist in Israeli constitutional law. In October
1993, he wrote the first of several articles denouncing the illegal agreements Israel made with the PLO that appeared in the pages of Nativ and
elsewhere. He is the founder and director of the Office for Israeli
Constitutional Law.
This article was
published in "Nativ Online", February 2004 #2.
(http://www.acpr.org.il/ENGLISH-NATIV/02-issue/grief-2.htm) It is Ariel Center for Policy Research (ACPR) Policy Paper #147.
THE LEGAL CONSEQUENCES OF THE ISRAELI
GOVERNMENT'S ABANDONMENT OF JUDEA AND SAMARIA
by Howard Grief
Jerusalem
May 24, 2010
TO Members of the Lev Ha'Aretz Group
The core thesis of my book, The Legal Foundation and Borders of
Israel under International Law, is that de
jure sovereignty over all of
Eretz-Israel was vested in the Jewish People, i.e., world Jewry, as a result of
the adoption of the San Remo Resolution of April 25,1920 by the Principal
Allied Powers of World War I (Britain, France, Italy and Japan), a coalition of
nations that defeated and dismembered the Ottoman Turkish Empire and then
allotted those lands to various national beneficiaries.
In 1920, there was of course no State of Israel,
but the Zionist Organization (now called the World Zionist Organization)
represented the national aspirations of the Jewish People to bring about a
future independent Jewish State. In 1929, a second representative body was
formed: the Jewish Agency for Palestine (now: the Jewish Agency
for Israel) — in accordance with
Article 4 of the Mandate for Palestine. It was these two
Jewish-Zionist bodies that were instrumental in the eventual rebirth of the
Jewish State of Israel, that officially came into existence on May 15,1948. In point of law, de jure sovereignty over the land of the Jews
was devolved or transferred from the Jewish People via the Zionist Organization
and the Jewish Agency to the State of Israel as of that date. However, the
devolution of sovereignty was exercisable — in a de facto sense — only over those areas of the Land of Israel that were at that time
in the actual physical possession of the State of Israel, while other integral
areas of the Jewish National Home remained under illegal Arab control in 1948.
The situation was drastically changed by the
Six-Day War of June 5-10, 1967 when eastern Jerusalem, Judea, Samaria, Gaza, the Golan Heights and Sinai were all
liberated from foreign Arab occupation by the Israel Defense Forces. The
astounding Israeli victory in the war was, however, accompanied by a legal
farce perpetrated by the legal advisers of the Eshkol National Unity
Government, chief among whom was the then-Military Advocate-General Meir
Shamgar, the future Attorney General and President of the Israel Supreme Court.
Instead of applying Israeli law to the liberated territories, as required by
the then-existing Israeli constitutional law, the Eshkol Government — acting on
Shamgar's misguided advice — shortsightedly and unconstitutionally applied
international law (i.e., the laws of war, embodied in the Hague Regulations of
1907 and the Fourth Geneva Convention of 1949), thus creating the harmful
world-wide impression that Israel was henceforth an Occupying Power of
"foreign lands" belonging to Arab states. That is the only reason why
Judea, Samaria and Gaza came thereafter to be
called "occupied territories", both inside Israel and abroad, a misnomer
that persists universally today, even among Israel's friends and
institutions, such as the Israeli Supreme Court.
Under Israeli constitutional law that existed at
the outset of the Six-Day War, the government of Israel was legally obliged to
apply the law of the State of Israel — and not international law — to the
liberated territories. This obligation was inherent in the 1948 law known as
the Area of Jurisdiction and Powers Ordinance and the two Proclamations issued
under its provisions, namely, the Jerusalem Proclamation of August 2, 1948 and the all-embracing and open-ended Land of Israel Proclamation of September 2, 1948. These enactments had one purpose only: to
extend the area of the Jewish State beyond its narrow borders as recommended in
the UN General Assembly Partition Resolution of November
29, 1947 in order to embrace and incorporate into the State all other areas
of the Land of Israel in Arab hands that had
been re-possessed by the Israel Defense Forces. To achieve precisely that, it
was in fact this law and the two proclamations that were invoked in 1948 by
Prime Minister and Defense Minister David Ben-Gurion. This legal mechanism
paved the way for cities such as Nahariya, Nazareth, Ramle, Lod, Beersheba,
Ashdod (Isdud), Ashkelon (Majdal) and other places that were not yet part of
the State of Israel on May 15, 1948 — to be brought within its boundaries. It
may surprise many to know that the 1948 Ordinance and the Land of Israel
Proclamation are still very much in force, and can even be invoked again,
without new Knesset legislation, if the Government of Israel so desires, in
order to incorporate Judea, Samaria and Gaza into the State of Israel.
The pressing question that arises at this point
is what would happen if, instead of incorporation or annexation, the Israeli
Government decides to abandon or cede Judea, Samaria to the Arabs as
indicated by the Road Map Peace Plan and the Two-State Solution. In this
respect it should be noted that what was done to the Jewish inhabitants of the Gaza district and northern Samaria was a violation of the
1950 Law of Return, an infringement that the Supreme Court ignored in its
decision approving the legality of the Disengagement Implementation Law of
2005. The discussion here will therefore be limited to the fate of Judea and Samaria.
The sovereignty now vested in the State of Israel
over Judea and Samaria, but which is inexplicably neither asserted nor even
recognized by the Israeli Government, can, in my opinion, be exercised by the
300,000 or more Jewish residents of Judea and Samaria in the event and only in
the event that the Government of Israel withdraws completely from this
territory and leaves it once again to the mercies of Arab terrorists. As a
matter of law, it should always be remembered that the State of Israel acts
only in the role and capacity of agent and assignee of the Jewish People, and
simply has no legal authority to renounce the right or rights that legally
belong eternally to the Jewish People as a whole, not only of this generation
but also of all future generations, as Ben-Gurion noted at Basel in 1937. Thus
if the State acts contrary to its power as agent and assignee of the Jewish
People who are directly and adversely'affected by its renunciation of the right
of sovereignty over Judea and Samaria and its transfer of de facto control over the land to an Arab
entity, i.e., to the "Palestinian Authority" or the "Palestine
Liberation Organization", then the right of sovereignty reverts back to
the Jewish People, the original and implied sovereign of Palestine under the
San Remo Resolution, and as a result other representatives of the Jewish People
can legally act in its place and stead. This applies particularly to the Jews
of Judea and Samaria who are part and parcel of the Jewish People in whom
sovereignty over all areas of Eretz-Israel ultimately vests, who presently
implement Israel's de facto sovereignty over Judea and Samaria and
who would suffer great injury by any decision of the Government of Israel to
cede Judea and Samaria to foreigners.
The Jews of Judea and Samaria would, in fact and
in law, be well within their constitutional rights to remain living in those
territories under the most significant law of the State of Israel, the Law of
Return, that enshrines in its provisions the two-thousand-year-old Jewish Right
of Return and, assuming Government abandonment, to take the necessary steps to
govern themselves in an independent State of Judea and Samaria.
Howard Grief is an eminent international lawyer and author of
"The Legal Foundation and Borders of Israel under International Law." Contact
him by email at GriefIsrael@yahoo.com This article was submitted June
15, 2010.
A LANDMARK WORK
by William Mehlman
Author: Howard Grief
"The Legal Foundation and Borders of Israel under International Law"
Pub Date: October 2008
ISBN-10: 9657344522,
ISBN-13: 9789657344521
Publisher: Mazo
(mazopublishers@gmail.com)
With The
Legal Foundation and Borders of Israel under International Law (Mazo Publishers, Jerusalem) Canadian-born Israeli
constitutional scholar and lawyer Howard Grief has given us a book that
shatters every myth, lie, misrepresentation and distortion employed over the 61
years of Israel's existence to negate
the sovereign rights of the Jewish People to their national home.
It is a lengthy treatise — 660 pages plus a
50-page appendix — but the Jewish people's long and tortuous struggle to
retrieve their stolen patrimony deserves nothing less than full disclosure.
Anyone who has ever been at a loss to counter the slanders and calumnies that
are the stock in trade of the Israel-bashers and anti-Semites on both the Left
and Right will treasure every one of its 20 illuminating chapters.
Rooted in the premise that the best antidote to a
myriad of small and medium sized fabrications is the exposure of the whole
cloth from which they've been woven, The
Legal Foundation lays bare
two dominant myths that have shaped popular perspectives on Israel. The first is the
fallacy that Jewish sovereignty over the land of Israel was the joint product of
the 1947 United Nations Partition and the May 15th,
1948 termination of the British Mandate for Palestine. In fact, as Grief
points out, Jewish sovereignty in Palestine had been validated under
international law 28 years earlier. "The legal title of the Jewish People
to the mandated territory of Palestine in all of its historical parts," he
informs us, was first recognized on April 24, 1920 when the post-World War I
Allied Supreme Council (Britain, France, Italy and Japan), meeting in San Remo,
Italy, "converted the 1917 'Balfour Declaration' into a binding legal
document."
How "binding" may be construed from the
fact that its wording gave effect to the provisions of Article 22 of the
Covenant of the League of Nations and became incorporated into the Mandate
for Palestine. Indeed, the "San Remo
Resolution," within which the Allied Supreme Council's decision is
contained, constitutes what the author terms "the foundation document of
the State of Israel, the legal existence of which is directly traceable from
that document."
That the Jewish People were unable to exercise
their sovereignty in Palestine for 28 years — it being assigned to the British
Mandatory power as their de
facto agent — did in no way
detract from their de jure rights to the land under international
law during that interregnum. In this thesis, Grief is ironically supported by
both a passionate Zionist, U.S. Supreme Court Justice Louis D. Brandeis and one
of Zionism's most implacable opponents, post World War I British Foreign
Secretary Lord George Nathaniel Curzon. Brandeis believed that with the passage
of the San Remo Resolution, the debate over who owned Palestine was effectively over.
Curzon called the Resolution the "Magna Carta" of the Jewish People.
From the initial misattribution of Jewish
sovereignty in Palestine to the 1947 Partition Plan rather than the 1920 San
Remo Resolution, it was just a hop and a skip to a second major misrepresentation
of Israel's international legal status — the erroneous assumption that the
Partition Plan and the May 1948 termination of the British Mandate somehow
erased the Jewish People's rights to Palestine in all its historical parts and
dimensions enunciated at San Remo, and implemented under the terms of the
League of Nations Covenant. Those "parts and dimensions" were defined
inter alia, as including the northwestern portions of the Golan and most of
present day Jordan by the
"Franco-British Boundary Convention" in Paris.
The presumptive cancellation of those rights,
Grief submits, is thoroughly discredited by "the principle of acquired
rights," codified in the 1969 Vienna Convention on the "Law of
Treaties," and the "doctrine of estoppel."
The first, he asserts, insures that "the fundamental rights of the Jewish
people did not lapse with the international process [the San Remo Resolution]
which brought them into existence. The second further guarantees that these
rights cannot "simply be abrogated or denied by those states which
previously recognized their existence." Taken together, they provide what
the author terms a "definitive answer [to] anyone who claims that Jewish
legal rights and title of sovereignty over all of Palestine and the land of
Israel did not continue after the end of the Mandate for Palestine...except in
the allotted boundaries of the UN Partition Plan..."
Noteworthy among the states that wholeheartedly
endorsed Jewish sovereignty over Palestine in all its
"historical parts and dimensions" was the United States of
America — the same U.S.A that today regards Israel's presence in Judea and Samaria as an illegal
"occupation" of lands upon which it favors the creation of a Palestinian State. The Obama
administration and the Bush administration that preceded it are either unaware
or have chosen to be unaware of the fact that the 1924 Anglo-American
Convention on Palestine made the U.S. a "contracting party" to the
Mandate, further reinforcing a unanimously passed Joint Resolution of the 67th Congress
two years earlier, signed by President Warren G. Harding, recognizing a future
Jewish State in "the whole of Palestine."
It needs to be borne in mind, Grief notes, that
the Mandate for Palestine that was ceremoniously
incorporated into U.S. law in 1924 "was a
constitution for the projected Jewish state that made no provision for an Arab
state and which especially prohibited the partition of the country." Thus,
he concludes, the fierce exception the U.S. has taken to Jewish
communities in Judea and Samaria and its unremitting
pressure for creation of a "Palestinian State" amount to a
repudiation of its signature to the Anglo-American Convention on Palestine. It is in violation of
American law and America's obligations under
international law.
The Legal Foundation and Borders of Israel
under International Law is the product of 25
years of independent research by Grief, a former adviser on international law
to the late Professor Yuval Ne'eman, Minister of Energy and Infrastructure in
the Shamir government and the father of Israel's nuclear energy program. It is
the kind of seminal work that seems destined to become both an indispensible
source for defenders of Israel's rights under international law and a mirror on
the events and personalities that transformed a November 2, 1917 letter from
British Foreign Secretary Lord Arthur James Balfour to Lord Lionel Walter
Rothschild into the trumpet call that awakened Jewish nationhood from a
1,900-year coma.
The author's unsparing portrayal of France's
opposition to the creation of a Jewish state at San Remo and, when thwarted,
its efforts at the Franco-British Boundary Convention to confine it to the
narrowest geographical limits, should dismiss any notion that French
anti-Zionism began with De Gaulle. By the same token, the Zionist sympathies
attributed to Winston Churchill by Martin Gilbert and other historians withers
in the face of the 1922 "White Paper" attached to his name as then
Colonial Secretary. Grief offers irrefutable evidence of its having not only
"negated" the Jewish state in Palestine that the Mandate
"required" of Britain, but of having elevated "Arab pretensions
and aspirations to such an extent that everything thereafter became
muddled...subject to continuous disputes as to what was really intended in the
Mandate for Palestine."
For the actual authorship of that document and
the wreckage it made of the original plan for the establishment of a Jewish
state in all its "historic parts and dimensions" under British
tutelage, we have Herbert Samuel to thank–the same Herbert Samuel who worked
closely with Chaim Weizmann in the Zionist Organization and was later to pack
it in for a "Lordship" and an appointment as British High
Commissioner to Palestine. In ironic contrast, Lord Curzon, Balfour's successor
as Foreign Secretary, who "detested" the idea of a Jewish state, put
loyalty above personal feelings at San Remo and Paris in arguing manfully for
the realization of Prime Minister David Lloyd George's vision of a Jewish state
comprised of all its ancient Biblical territories.
On the Jewish side, nobody comes off better in
this saga than Brandeis, who Grief portrays as "the only Zionist
leader...who properly understood the natural consequences of the legal
recognition of the Balfour Declaration embodied in the San Remo
Resolution." Had Brandeis headed the Zionist Organization, the author
believes, "there is little doubt that he would have successfully halted Britain's gross violation of its
[Mandatory] obligation ...to rebuild the Jewish state."
At the end of the day, it was Menachem Begin who
provided the most heartbreaking counterpoint to Lloyd George's vision of a
Jewish state reconstituted in most, if not all of its Biblical parts, Grief
submits. Begin, national Zionism's anointed champion, bearer of the torch lit
by Herzl and passed to Jabotinsky, not only failed to make Israel
constitutionally whole by annexing Judea, Samaria and Gaza (as he was expected
to do), but in what the author describes as an act of "unimaginable
folly," brought to the Knesset in 1977 a plan to establish Arab
"self-rule" over those critical portions of the Jewish estate. In so
doing, he opened the portals wide for their identification as
"unalloted," "disputed" and finally "occupied" territories.
Nine months later, in September 1978, Begin
crowned his "achievement" by injecting the "self-rule"
proposal into the negotiations with Egypt at Camp David, offering to leave the
final determination of sovereignty over Judea, Samaria and Gaza to their inhabitants and
"local representatives." Thirty one years later, Israel remains bedeviled by
that fateful decision.
William Mehlman is Americans for a Safe Israel (AFSI)'s representative in Israel. Howard Grief's book is sold on Amazon
and Barnes & Noble. This article appeared in the October 2009 issue of Mideast Outpost
(http://mideastoutpost.com/archives/000590.html).
THE QUESTION OF THE APPLICABILITY OF THE
FOURTH GENEVA CONVENTION ON OCCUPATION TO JUDEA, SAMARIA AND GAZA
by Howard Grief
The legal question of the applicability of the
Fourth Geneva Convention of 1949 to Judea, Samaria and Gaza has been the source of
great argument ever since the Israel Defense Forces restored them to the
possession of the Jewish People and the State of Israel in the Six-Day War.
Some analysts who have approached this question have relied only on Article 2
of the Convention to determine if it applies to these territories, when the
actual answer is to be found by combining Article 2 with Article 6 of the
Convention.
The
relevant paragraphs of Article 2 read as follows:
In addition to the
provisions which shall be implemented in peacetime, the present Convention
shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting
Parties, even if the state of war is not recognized by one of them.
The Convention shall also apply to all cases of partial or total occupation of the
territory of a High Contracting Party, even if the said occupation meets
with no armed resistance (emphasis added).
The relevant paragraphs
of Article 6 state:
The present Convention
shall apply from the outset of any conflict or occupation mentioned in Article
2.
In the territory of Parties to the conflict, the
application of the present Convention shall cease on the general close of
military operations. In the case of occupied territory, the application of the
present Convention shall cease one year after the general close of military
operations; however, the Occupying
Power shall be bound, for the duration of the occupation, to the extent that
such Power exercises the functions of government in such territory, by the
provisions of the following Articles of the present Convention: 1-12, 27, 29 to
34, 47, 49, 51, 52, 53, 59, 61 to 77, 143. (emphasis added).
In light of the fact that Article 2(1) of the
Convention applies to all cases of declared
war or armed conflict between
two or more of the High Contracting Parties and that the states engaged in the
Six-Day War were and remain parties to the Convention, there can be no doubt
that at the outset of the war on June 5, 1967 until its conclusion on June 10,
1967, all the provisions of the Convention applied to each of the combatant
states of Israel, Egypt, Jordan and Syria and to the territories that Israel
brought under its military control as a result of the war, regardless of their
legal status or sovereignty at the time and regardless of whether or not they
were to be considered "occupied territories" under international law.
During the war, the Convention also applied regardless of the formalistic
question of whether it represented treaty law that required incorporation into
the domestic law or customary law that did not require such incorporation. The
discussion here will be limited to the applicability of the Fourth Geneva
Convention to Judea, Samaria and Gaza after June 10, 1967 when the state of active war or hostilities
between Israel and the combatant Arab
states terminated, even without a peace treaty.
To begin with, it is important to note that the
"military operations" referred to in Article 6 of the Convention
ceased altogether on June 10, 1967, in accordance with three UN Security
Council resolutions passed during the Six-Day War demanding an immediate
cease-fire.[1] This call for a cease-fire was accepted by Israel and Syria
between whom active fighting was still raging on the Golan Heights. The state
of war may have technically continued to exist between Israel and Syria (as well as Egypt and Jordan), but there were
definitely no further military operations between them, within the meaning of
Article 6 of the Convention.
Article 6 distinguishes between two kinds of
territory: 1) the territory of the parties to the conflict, and 2) occupied
territory. In the case of the former, the application of the Fourth Geneva
Convention ceases "on the general close of military operations". But
in the case of the latter — "occupied territory" — the Convention
continues to apply until one year after the close of military operations and
even beyond that date if the Occupying Power exercises the functions of
government in such territory.
Inasmuch as the Six-Day War was not fought,
neither within the existing borders of the State of Israel, nor within the
borders of Jordan on the east bank of the Jordan River — the only recognized borders
of the country under international law, the Convention was no longer applicable
to those specific areas after the cease-fire or cessation of hostilities,
except for those provisions of the Convention "which shall be implemented
in peacetime". The question of the further applicability of the Convention
then turns on the question of whether Judea, Samaria and Gaza were
"occupied territories" belonging to the Kingdom of Jordan and/or
Egypt within the meaning of both Article 6 of the Convention and Article 42 of
the Hague Regulations of 1907. These regulations constitute an annex to the
Fourth Hague Convention Respecting the Laws and Customs of War on Land.
Article 42 of the Hague Regulations defines
territory as being occupied when
the territory of the Hostile State is actually placed under
the authority of a Hostile Army. It is to be noted that the text of Article 42
refers only to "territory" in a general sense, but the heading[2] of
Section III under which Article 42 appears — "Military Authority over
Territory of the Hostile State" — makes it clear that the word
"territory" can only be a reference to the "territory of the
hostile state", as is also evident from Article 55 of that Section, which
specifically mentions various immovable properties belonging to the
"hostile state". Article 42 furthers lays down that "the
occupation extends only to the territory [of the Hostile State] where such authority
has been established and can be exercised."
At the conclusion of the Six-Day War, the
territories of Judea, Samaria and Gaza were indeed placed under
the authority of a "Hostile Army", i.e., the Israel Defense Forces.
However, these territories are not to be considered legally "under
occupation", unless they actually belong to either Jordan or Egypt. It is a well-known fact
that though Jordan annexed Judea and Samaria on April 24, 1950, thus rendering
this region a de facto part of the Kingdom of Jordan (i.e.,
the so-called "West Bank"), this unilateral annexation was never
recognized as valid under the prevailing norms of international law, inasmuch
as Jordan was an aggressor state in the Israel-Arab War of 1948.[3] Thus Jordan
never enjoyed sovereignty over Judea and Samaria, while Egypt never even
claimed it over Gaza. Since neither Jordan nor Egypt (nor the fictitious
"Palestinian People") were recognized sovereigns of these
territories, they cannot be legally classified as "occupied". The
only recognized sovereign over those territories under international law prior
to the Six-Day War was the Jewish People as determined by several acts of
international law. The first such act was the Smuts Resolution of January 30,
1919 (the precursor of Article 22 of the League Covenant), which in referring
to the term "Palestine" must be interpreted in conjunction with the
Balfour Declaration of November 2, 1917, the Lloyd George-Clemenceau Agreement
of December 1, 1918, and the Weizmann-Feisal Agreement of January 3, 1919. It
is thus evident that "Palestine" is a reference to
the Jewish People and not to the local Arab inhabitants of the country. The
other acts of international law that confirm the Jewish legal title to
Palestine are the San Remo Resolution of April 25, 1920, the Mandate for
Palestine of July 24, 1922, the Franco-British Boundary Convention of December 3,
1920 and the Anglo-American Convention Respecting the Mandate for Palestine of
December 3, 1924. Since Israel, therefore, did not occupy the territory of a
previous foreign sovereign, but only re-possessed the territory that the
Principal Allied Powers of World War I had resolved was to be part and parcel
of the Jewish National Home, as subsequently confirmed by the League of
Nations, the Fourth Geneva Convention was not applicable to Israel's rule over
Judea, Samaria and Gaza. Accordingly, it is absolutely false to assert that
Judea, Samaria and Gaza are "occupied Palestinian territory",
"occupied Arab territory" or simply "occupied territory" as
claimed in many UN General Assembly and Security Council resolutions as well as
by the Palestine Liberation Organization, the Palestinian Authority, the Arab
League states, other governments and self-servingly, by the International
Committee of the Red Cross.[4] Furthermore, when the Six-Day War broke out on
June 5, 1967, there was no state in existence called "Palestine"
whose territory could be considered "occupied" under international
law, nor is there any such state even today, though if the Government of Israel
continues to pursue the "two-state vision" of U.S. President George
W. Bush, this state may yet emerge.
Despite the fact that Israel never occupied the
sovereign territory of another Arab state or people, within the meaning of the
Fourth Geneva Convention and the Hague Regulations, it has been falsely branded
as an occupier of "Arab land". This accusation has no basis in law
but has persisted because of the false belief that has been nurtured since 1969
by the United Nations and the Arab States as well as the PLO, that
Israel has conquered the
national homeland of another people, the "Palestinians" who inhabit
the non-existent state of "Palestine". To dispel these
falsehoods, it need only be remembered that Mandated Palestine was created in
April, 1920 at the San Remo Peace Conference for the express purpose of the
future independent state of the Jewish People, not for an imaginary people
called "Palestinians", whose existence as a separate nation was
unknown during the whole period of the Mandate, especially to the Arabs
themselves. Since Palestine was intended to be the
Jewish National Home, the State of Israel, which inherited the national rights
of the Jewish People to the country, can never be seen as the occupier of land
that was specifically reserved for Jews and rightfully belongs, as a result, to
Israel. It is only by ignoring
these indisputable facts that the cry is incessantly raised that the
"occupation" must end. Sadly, Israel itself was in large
measure responsible for allowing this false conception to take root, when
during the Six-Day War it made the fateful decision to apply the laws of war to
the liberated Jewish territories rather than the corpus of its own law, thus
failing to incorporate those territories into the Jewish State. This convinced
world public opinion, especially that of American and European leaders, that Israel is indeed an occupier of
foreign lands. To rectify this terrible mistake, which also violated existing
Israeli constitutional law, Israel should not only strongly contest the
allegation of "occupation" as baseless, but also pass legislation
affirming Israel's national rights to all areas of the Land of Israel and
making it a criminal offense to describe its presence and status in any part of
the land as "occupation".[5] This will then prevent Israel's Supreme
Court and most academic jurists in Israel's institutions of higher learning
from further spreading this insidious libel, as they have incredibly done up to
now, to the acclaim of those who favour the re-partition of the Land of Israel.
Finally, it should be noted that the legal term
"occupation", as defined in international law, refers only to the
occupation by a hostile army of territory belonging to a state. It does not
refer to the people living in "occupied territory", who as
non-nationals of the Occupying Power enjoy the status of "protected persons"
under the Fourth Geneva Convention. In reconquering areas of the Land of Israel
in June 1967, what the Israeli Defense Forces really did was
"repossessing" lands internationally recognized ever since 1920 as
belonging to the Jewish People, as originally reflected by the Hebrew phrase
for those lands: shtahim
muhzakim ("held"
areas). This stressed that it was land, rather than people, that was
repossessed. It is therefore a gross misuse of the term "occupation"
to refer to Israel's "occupation of
the Palestinian People", even without considering the question of whether Israel is a true occupier of
what is now mistakenly termed "Palestinian land", i.e., Judea, Samaria and Gaza. To give a parallel
example, the United States may be said to be a
military occupier of Iraq, ever since it overthrew
the cruel regime of Saddam Hussein, but it cannot be said to "occupy the
Iraqi people". Those who accuse Israel of "occupying
Palestinians" are using false and illogical terminology that has no basis
in any instrument of international law. This terminology represents an
unwarranted and unauthorized change of meaning of the term
"occupation", in that it wrongly conflates two non-synonymous
categories. In actual fact, Israel neither occupies the land of Judea, Samaria and Gaza, the alleged homeland of
the so-called "Palestinians", nor does Israel "occupy" any
nation of that name. Israel has a flawless legal
right to govern all of the Land of Israel as well as all of its
inhabitants, as the legitimate sovereign.
End Notes
[1] The
three Security Council resolutions calling for a cessation of all military
activities, all of which were adopted unanimously, were: 1) Resolution No. 233
of June 6, 1967; 2) Resolution No. 234 of June 7, 1967; 3) Resolution No. 235
of June 9, 1967.
[2] In interpreting the text of a treaty or
of an annex to it such as the Hague Regulations, recourse may be had according
to Article 31 of the Vienna Convention on the Law of Treaties to the context to
be given to the terms of the treaty and also to the treaty's object and
purpose. Based on this general rule of interpretation, the term
"territory" as used in Article 42 of the Hague Regulations can only
refer to the "territory of the hostile state" over which the army of
the other state (i.e., the Occupying state) has assumed military authority.
[3] The principle of international law that
applied to the situation was jus
ex injuria non oritur [a
right does not arise from a wrong]. Even the Council of the Arab League refused
to recognize the Jordanian annexation of Judea and Samaria, and four states —
Egypt, Saudi Arabia, Syria and Lebanon — voted to expel Jordan for violating
the League's anti-annexation resolution of April 13, 1950.
[4] The International Committee of the Red
Cross (ICRC) principally formulated the four 1949 Geneva Conventions that were
approved at a Diplomatic Conference for the Establishment of International
Conventions for the Protection of the Victims of War, held in Geneva from April
21 to August 12, 1949. The ICRC has a special position in the implementation of
these Conventions, charged with providing relief and affording protection for
members of armed forces who are wounded, sick or shipwrecked; prisoners of war;
and civilian persons in time of war (see, for example, Articles 3(2), 63 and
142 of Geneva Convention IV). Under the erroneous assumption of the ICRC that Judea, Samaria and Gaza are indeed
"occupied territories", the Government of Israel permits it to
operate freely in these parts of the Land of Israel and the Jewish National
Home. It is not without irony that the man who founded the International Red
Cross, Jean Henri Dunant, a Swiss Protestant philanthropist, waged an
unsuccessful campaign for the settlement of Jews in Palestine during the 1860s,
even going so far as to establish an association for that very purpose. Herzl
recognized Dunant's unique efforts to promote Jewish settlement by referring to
him as a Christian Zionist in his closing speech at the First Zionist Congress
in 1897 in the Swiss city of Basle.
[5] The Knesset on July 15, 2003 took an
initial step in this direction when it passed, by a margin of 26 to 8, a
resolution submitted by Gideon Sa'ar that read as follows: "...the Knesset
affirms that the territories of Judea and Samaria are not occupied territories,
either historically or from the standpoint of international law, and not
according to the diplomatic accords signed by Israel...".
Except for the last paragraph of the article, which is
completely new, the present article -- which is also being posted on the
website of the Ariel Center for Policy Research, to whom it was originally
submitted -- is an excerpt from the last chapter of Grief's book "The
Legal Foundation and Borders of Israel under International Law", "The
Legal Foundation and Borders of Israel under International Law" offers a
comprehensive and systematic legal treatment of Jewish national and political
rights to all of the Land of Israel. Howard Grief, is the originator of the
thesis that de juresovereignty
over the entire Land of Israel and Palestine was vested in the Jewish People as
a result of the San Remo Resolution adopted at the San Remo Peace Conference on
April 24, 1920.
APPENDIX 1: Basic documents regarding Israel in International Law
Title: San Remo Resolution — April 25, 1920
Caption: This resolution, consisting of the Balfour Declaration and
Article 22 of the Covenant of the League of Nations, is the basic document
upon which the Mandate for Palestine was constructed. The
San Remo Resolution concerning Palestine and the Jewish National Home was
adopted at the San Remo Peace Conference on April 25, 1920 by the four
Principal Allied Powers of World War I who were represented by the Prime
Ministers of Britain (David Lloyd George), France (Alexandre Millerand) and
Italy (Francesco Nitti) and by the Ambassador of Japan (K. Matsui). The
Resolution was a binding agreement between these Powers to reconstitute the
ancient Jewish State within its historic borders "from Dan to Beersheba", an agreement
that was incorporated into the Treaty of Sevres and the Mandate for Palestine.
Title: The Franco-British [Boundary]
Convention of December 23, 1920.
Caption: The Franco-British [Boundary] Convention which delineated
the boundaries between Palestine and Syria-Lebanon was
signed on December 23, 1920. The term "Transjordan" does not appear
in the Convention since it did not exist as a separate territorial entity at
the time the Convention was made. What was later to become Transjordan (today
called the Hashemite Kingdom of Jordan) was, at that time, an integral part
of the Land of Israel intended for inclusion in the Jewish National Home in
accordance with the terms of the Draft Mandate submitted by the British
Government to the Council of the League of Nations on December 6, 1920 for
its confirmation.
Title: Mandate for Palestine — July 24, 1922.
Caption: The Mandate for Palestine
was granted to Britain
by the Principle Allied Powers of World War I. It constituted an elaboration
of what the San Remo
Resolution intended to be done concerning the newly-created mandated state of
Palestine.
It consisted of 28 articles, all of which applied to the Jewish National
Home, not merely those articles which had an obvious Zionist character. The
essential point was the responsibility placed upon Britain
not only to use its "best endeavours" to establish a Jewish State
(euphemistically called the Jewish National Home), but also to actually
"secure" its achievement. The Mandate was confirmed by the Council
of the League of Nations
on July 24, 1922 and accepted in
all by 52 nations, including the United States.
|
APPENDIX II: The Franco-British [Boundary] Convention Of December 23, 1920
The British and French Governments,
respectively represented by the undersigned Plenipotentiaries, wishing to
settle completely the problems raised by the attribution to Great Britain of
the mandates for Palestine and Mesopotamia and by the attribution to France
of the mandate over Syria and the Lebanon, all three conferred by the Supreme
Council at San Remo, have agreed on the following provisions:-
Article 1
The boundaries between the territories under
the French mandate of Syria and the Lebanon on the one hand and the British
mandate of Mesopotamia and Palestine on the other are determined as follows:-
On the east, the Tigris from Jeziret-ibn-Omar
to the boundaries of the former vilayets of Diarbekir and Mosul.
On the south-east and south, the aforesaid
boundary of the former vilayets southwards as far as Roumelan Koeui; thence a
line leaving in the territory under the French mandate the entire basin of
the western Kabur and passing in a straight line towards the Euphrates, which
it crosses at Abu Kemal, thence a straight line to Imtar to the south of
Jebul Druse, then a line to the south of Nasib on the Hedjaz Railway, then a
line to Semakh on the Lake of Tiberias, traced to the south of the railway,
which descends towards the lake and parallel to the railway. Deraa and its
environs will remain in the territory under the French mandate; the frontier
will in principle leave the valley of the Yarmuk in the territory under the
French mandate, but will be drawn as close as possible to the railway in such
a manner as to allow the construction in the valley of the Yarmuk of a
railway entirely situated in the territory under the British mandate. At
Semakh the frontier will be fixed in such a manner as to allow each of the
two High Contracting Parties to construct and establish a harbour and railway
station giving free access to the Lake of Tiberias.
On the west, the frontier will pass from Semakh
across the Lake of Tiberias to the mouth of the
Wadi Massadyie. It will then follow the course of this river upstream, and
then the Wadi Jeraba to its source. From that point it will reach the track
from El Kuneitra to Banias at the point marked Skek, thence it will follow
the said track which will remain in the territory under the French mandate as
far as Banias. Thence the frontier will be drawn westwards as far as
Metullah, which will remain in Palestinian territory. This portion of the
frontier will be traced in detail in such a manner as to ensure for the
territory under the French mandate easy communication entirely within such
territory with the regions of Tyre and Sidon, as well as continuity
of road communication to the west and to the east of Banias.
From Metullah the frontier will reach the
watershed of the valley of the Jordan and the basin of the
Litani. Thence it will follow this watershed southwards. Thereafter it will
follow in principle the watershed between the Wadis Farah-Houroun and
Kerkera, which will remain in the territory under the British mandate, and
the Wadis El Doubleh, El Aioun and Es Zerka, which will remain in the
territory under the French mandate. The frontier will reach the Mediterranean Sea at the port of
Ras-El-Nakura, which will remain in the territory under the French mandate.
Article 2
A commission shall be established within three
months from the signature of the present convention to trace on the spot the
boundary line laid down in article 1 between the French and British mandatory
territories. This commission shall be composed of four members. Two of these
members shall be nominated by the British and French Governments
respectively, the two others shall be nominated, with the consent of the
Mandatory Power, by the local Governments concerned in the French and British
mandatory territories respectively.
In case any dispute should arise in connection
with the work of the commission, the question shall be referred to the
Council of the League of Nations, whose decision shall
be final.
The final reports by the commission shall give
the definite description of the boundary as it has been actually demarcated
on the ground; the necessary maps shall be annexed thereto and signed by the
commission. The reports, with their annexes, shall be made in triplicate; one
copy shall be deposited in the archives of the League of Nations, one copy shall be
kept by the mandatory, and one by the other Government concerned.
Article 3
The British and French Governments shall come
to an agreement regarding the nomination of a commission, whose duty it will
be to make a preliminary examination of any plan of irrigation formed by the
Government of the French mandatory territory, the execution of which would be
of a nature to diminish in any considerable degree the waters of the Tigris
and Euphrates at the point where they enter the area of the British mandate
in Mesopotamia.
Article 4
In virtue of the geographic and strategic
position of the island of Cyprus, off the Gulf of Alexandretta, the British
Government agrees not to open any negotiations for the cession or alienation
of the said island of Cyprus without the previous
consent of the French Government.
Article 5
1.The French Government agrees to facilitate by
a liberal arrangement the joint use of the section of the existing railway
between the Lake of Tiberias and Nasib. This
arrangement shall be concluded between the railway administrations of the
areas under the French and British mandates respectively as soon as possible
after the coming into force of the mandates for Palestine and Syria. In particular the
agreement shall allow the administration in the British zone to run their own
trains with their own traction and train crews over the above section of the
railway in both directions for all purposes other than the local traffic of
the territory under the French mandate. The agreement shall determine at the
same time the financial, administrative and technical conditions governing
the running of the British trains. In the event of the two administrations
being unable to reach an agreement within three months from the coming into
force of the two above-mentioned mandates, an arbitrator shall be appointed
by the Council of the League of Nations to settle the points as to which a
difference of opinion exists and immediate effect shall be given as far as
possible to those parts of the agreement on which an understanding has
already been reached. The said agreement shall be concluded for an indefinite
period and shall be subject to periodical revision as need arises.
2.The British Government may carry a pipe line
along the existing railway track and shall have in perpetuity and at any
moment the right to transport troops by the raiiway.
3.The French Government consents to the
nomination of a special commission, which, after having examined the ground,
may read just the above-mentioned frontier line in the valley of the Yarmuk
as far as Nasib in such a manner as to render possible the construction of
the British railway and pipe line connecting Palestine with the Hedjaz
Railway and the valley of the Euphrates, and running entirely within the
limits of the areas under the British mandate. It is agreed, however, that
the existing railway in the Yarmuk valley is to remain entirely in the
territory under the French mandate. The right provided by the present
paragraph for the benefit of the British Government must be utilized within a
maximum period of ten years.
The above-mentioned commission shall be
composed of a representative of the French Government and a representative of
the British Government, to whom may be added representatives of the local
Governments and experts as technical advisers to the extent considered
necessary by the British and French Governments.
4.In the event of the track of the British
railway being compelled for technical reasons to enter in certain places the
territory under French mandate, the French Government will recognize the full
and complete extra-territoriality of the sections thus lying in the territory
under the French mandate, and will give the British Government or its
technical agents full and easy access for all railway purposes.
5.In the event of the British Government making
use of the right mentioned in paragraph 3 to construct a railway in the
valley of the Yarmuk, the obligations assumed by the French Government in
accordance with paragraphs 1 and 2 of the present article will terminate
three months after the completion of the construction of the said railway.
6.The French Government agrees to arrange that
the rights provided for above for the benefit of the British Government be
recognized by the local Governments in the territory under the French
mandate.
Article 6
It is expressly stipulated that the facilities
accorded to the British Government by the preceding articles imply the
maintenance for the benefit of France of the provisions of
the Franco-British Agreement of San Remo regarding oil.
Article 7
The French and British Governments will put no
obstacle in their respective mandatory areas in the way of the recruitment of
railway staff for any section of the Hedjaz Railway.
Every facility will be given for the passage of
employees of the Hedjaz Railway over the British and French mandatory areas
in order that the working of the said railway may be in no way prejudiced.
The French and British Governments agree, where
necessary, and in eventual agreement with the local Governments, to conclude
an arrangement whereby the stores and railway material passing from one
mandatory area to another and intended for the use of the Hedjaz Railway will
not for this reason be submitted to any additional customs dues and will be
exempted so far as possible from customs formalities.
Article 8
Experts nominated respectively by the
Administrations of Syria and Palestine shall examine in common within six
months after the signature of the present convention the employment, for the
purposes of irrigation and the production of hydro-electric power, of the
waters of the Upper Jordan and the Yarmuk and of their tributaries, after
satisfaction of the needs of the territories under the French mandate. In
connection with this examination the French Government will give its
representatives the most liberal instructions for the employment of the
surplus of these waters for the benefit of Palestine.
In the event of no agreement being reached as a
result of this examination, these questions shall be referred to the French
and British Governments for decision.
To the extent to which the contemplated works
are to benefit Palestine, the Administration of Palestine shall defray the
expenses of the construction of all canals, weirs, dams, tunnels, pipe lines
and reservoirs or other works of a similar nature, or measures taken with the
object of reafforestation and the management of forests.
Article 9
Subject to the provisions of Articles 15 and 16
of the mandate for Palestine, of Articles 8 and 10 of the mandate for
Mesopotamia, and of Article 8 of the mandate for Syria and Lebanon, and
subject also to the general right of control in relation to education and
public instruction, of the local Administrations concerned, the British and
French Governments agree to allow the schools which French and British
nationals possess and direct at the present moment in their respective
mandatory areas to continue their work freely; the teaching of French and
English will be freely permitted in these schools.
The present article does not in any way imply
the right of nations of either of the two parties to open new schools in the
mandatory area of the other.
The present convention has been drawn up in
English and French, each of the two texts having equal force.
Done at Paris, the 23rd of December, 1920, in a double copy, one
of which will remain deposited in the archives of the Government of the French Republic, and the other in
those of the Government of His Britannic Majesty.
HARDINGE OF
PENSHURST
G. LEYGUES
|
APPENDIX III: Jewish Legal Rights and Title of Sovereignty to the
Land of Israel and Palestine
by Howard Grief
April 2004
published on Jerusalem
Summit website
www.jerusalemsummit.org
The legal title of the Jewish People to the
mandated territory of Palestine in all of its historic parts and dimensions
was first recognized under international law on April 25, 1920 by a Decision
taken at the San Remo Peace Conference by the Supreme Council of the
Principal Allied Powers to entrust Palestine to Great Britain under the
Mandates System for the purpose of establishing a national home for the exclusive
benefit of the Jewish People, in accordance with the terms of the Balfour
Declaration of November 2, 1917.
The Supreme Council of the Allies was made up
of the top political leaders and officials of Great Britain, France, Italy
and Japan, and it was they in their meeting in the Italian resort city who
decided the future fate of all the Asiatic possessions which, as a
consequence of World War I, had ceased to be under the sovereignty of the
Ottoman Turkish Empire which formerly governed them.
These possessions included all the area then
called the Fertile Crescent, which originally comprised Palestine, Syria and Mesopotamia (whose name later
became Iraq) as separate
territorial units, before any substantive changes were made to their
boundaries. At the San Remo Conference, it was decided that all three
countries, whose exact borders had not yet been delineated, would be
administered by Mandatories under the newly-created Mandates System,
established by the Treaty of Versailles of 1919. The Mandates System did not
come into being until the ratification of this Treaty on January 10, 1920. It was established simultaneously with
the League of Nations whose duty it was to supervise the observance
of individual mandates through a body called the Permanent Mandates
Commission. The actual terms of those mandates and the powers exercised by
the Mandatory were in each case explicitly defined and confirmed by the
Council of the League unless previously agreed upon by the Members of the
League.
British determination and influence in the
wartime group of nations officially called the Principal Allied Powers in
relation to Turkey excluded other areas under former Ottoman rule in Asia
from being part of the new system of mandatory government, particularly the
Hedjaz and the whole Arabian Peninsula.
This was the global settlement that was made
after World War I, that conferred enormous benefits to the Arabic-speaking
world. The "Arabs" received the lion's share of the territories
that formerly belonged to Turkey. As a result of this
munificence they hold today lands equal to twice the area of the USA, as the Editor of
Midstream, Mr. Joel Carmichael, has keenly observed in a letter to the
author.
Other peoples who were originally included in
this global settlement fared badly. Kurds and Armenians were supposed to get
their own autonomous homelands or states, and the Assyro-Chaldeans, who were
a Christian community centered in Mosul, were also promised
protection and safeguards for their rights. However, in the final outcome,
none of the promises made to them were fulfilled, because their claims and
aspirations, although explicitly recognized by the Allies in the abortive
Treaty of Sevres, were subsequently discarded by both the British and French
who turned over their designated areas to the complete control of both Arabs
and Turks who then cruelly deprived them of their vested national rights and
status within those areas.
When the settlement and division of land was
devised at the San Remo Conference, it was clear to all concerned parties,
Arab and Jew alike and to all European, American and Japanese statesmen, that
Palestine, within its historic frontiers according to the biblical formula,
from Dan to Beersheba, but which still needed to be marked out in a separate
agreement, was exclusively reserved for the benefit of the Jewish people all
over the world, of which only a fraction then actually lived in the ancient
Jewish country. What this obviously meant to one and all was an independent
Jewish State in all of the historic territory of Palestine.
Jewish legal rights and title to all of
historic Palestine, including Transjordan and Golan, whose association with
the Jewish People goes back to the earliest days of Jewish history, was
indeed then formally recognized in the Franco-British Convention of December
23, 1920, even though no specific words were used to that effect but was well
understood by the parties, both from the negotiations that were conducted
prior to the conclusion of the Convention in consultation with Zionist
leaders who pressed the British to obtain the best possible frontiers for the
Jewish National Home, and from the reference to the Mandate for Palestine
contained in the Convention itself. Some parts of historic Palestine were not included in
the final boundaries assigned to Palestine, especially in the
northern and north-eastern sections of the new lines.
Jewish legal rights and title to the country of
Palestine were founded on three basic pillars
which comprised the following sources of support:
1.The
historical connection of the Jewish People with Palestine in its entirety.
Without this acknowledgment of the country's storied Jewish past, there would
have been no Mandate and no Jewish National Home. The historical connection
dated back to the Israelite period as described in the Jewish Bible, to the
Hasmonean restoration and to the Herodian era and also, in general, to the
unbroken chain of links which Jews of every generation had always maintained
with the Land of Israel from the very first days of the Patriarchs, Abraham,
Isaac and Jacob, right up to the present day, embracing a continuous history
of approximately 3800 years.
2.The right enshrined
in Article 22 of the Treaty of Versailles of 1919 which provided for national
independence or self-determination for those peoples, inhabitants and
communities living in the colonies and territories formerly under Turkish and
German sovereignty. This principle of self-determination was also adopted for
the benefit of the Jewish People by the Principal Allied Powers when they
created the Mandates System even though the vast majority of Jews did not
live in any of the territories described in Article 22 of the Treaty of
Versailles that were destined for eventual independence. That was the most
unique element of the Mandate for Palestine, different from all
other Mandates that were conferred, where the local inhabitants were
designated the beneficiary of the Mandate. Article 22 was placed in the First
Part of the Treaty of Versailles, dealing with the Covenant of the League of Nations, which emphasized its
special importance. The same was done in all the other Peace Treaties that
were concluded after World War I, including the unratified Treaty of Sevres
with the Sublime Porte that was signed on August 10, 1920.
3.The right of the
Jewish People to reconstitute their State of old in accordance with the
Balfour Declaration of November 2, 1917, as adopted by the Principal Allied
Powers on April 25, 1920 at the San Remo Conference. The Balfour Declaration
was a declaration of sympathy with Jewish Zionist aspirations as stated in
the brief letter sent to Lord Lionel Walter Rothschild which contained the
text of the famous Declaration. It viewed with favour "the establishment
in Palestine of a national home for
the Jewish People" and the British Government of Prime Minister David
Lloyd George pledged itself "to use their best endeavours to facilitate
the achievement of this object". This pledge was subsequently
transformed into a binding obligation under Article 2 of the Mandate for Palestine and also by the
wording used in the Preamble. The British Government was thereafter
responsible for putting into effect the Balfour Declaration under
international law and for establishing the Jewish National Home in Palestine.
The "home" referred to in the
Declaration was a euphemistic term for "state" already used 20
years earlier by the Jewish leaders attending the World Zionist Congress
convoked by Theodor Herzl and held at Basel, Switzerland, in August 1897, so
as not to offend Turkish sensibilities on the projected loss of Palestine
from their recognized sovereign domains under international law. The word
"national" was later appended to the word "home" by Nahum
Sokolow, the long-time Zionist leader at the time he participated in the drafting
of the Balfour Declaration with British officials. The addition of this word
was to make it even clearer what the ultimate goal of the Zionist
Organization was, on behalf of the scattered Jewish people. Strangely, what
was evident by the words "national home" then became muddled by the
originator of the term, Sokolow himself, who, in a display of inane and
unnecessary deception, wrote in the introduction to his two-volume monumental
work, History of Zionism,
published in 1919, that the word "home" as used in the Basel
Program of 1897, did not mean the creation of an independent "Jewish
State", which was an interpretation he attributed to anti-Zionists who
were opposed to the revival of the Jewish People as an independent nation in
its ancestral homeland. This denial of the term's true meaning was contrary
to what both Balfour and Lloyd-George themselves stated, both at the time the
Balfour Declaration was approved by the War Cabinet and in the years
afterwards. It was also contrary to President Wilson's own pronouncement on
the subject, influenced by the great American Supreme Court Justice, Louis
Dembetz Brandeis, both of whom had a major role in the approval of the
Balfour Declaration. The matter became further confused by Ahad Ha'Am, the
pompous pseudonym used by Asher Ginsberg, who stated erroneously in a
deliberate trouble-provoking exegesis that the words "in Palestine" did not mean
that the whole country of Palestine would become the
Jewish National Home. Furthermore, he declared that Palestine was also the national
home of the Arabs who deserved the same rights as the Jews were obtaining in
ruling the country they both shared.
As a result of Sokolow's and Ginsberg's
unconscionable and unforgivable misrepresentations which created heavy
roadblocks on the way to Jewish independence, it thereafter became easy for
succeeding British Governments to exploit their false interpretation of the
Balfour Declaration and to change the policy embedded in the Declaration to
the great detriment of the Jewish National Home.
Despite British backtracking, the Balfour
Declaration did become in any case an act of international law of supreme
importance to the cause of Zionism, when it was officially adopted by the
Principal Allied Powers at the San Remo Conference. It is without doubt the
linch-pin or essential foundation of all Jewish legal rights to Palestine under international
law, upon which everything else depended. It was the exclusive basis for the
implementation of the Mandate for Palestine. It may be said without
exaggeration that almost every article of the Mandate for Palestine was only an extension
or elaboration of what the Balfour Declaration was meant to be in actual
practice, including those provisions not ostensibly thought to be dealing
with the establishment of the Jewish National Home.
The foregoing three components of the Jewish
legal title to Palestine were then rolled into one comprehensive
international instrument, the Mandate for Palestine, which thereafter became
the primary cited source for Jewish legal rights to the re-constituted Jewish
National Home that was called Palestine in English, a name originally chosen
by the Zionist leaders in the Basel Program of 1897, and translated into
Hebrew as the Land of Israel.
These rights were included specifically in the
first three recitals of the Preamble of the Mandate Agreement, each one of
the recitals being of great importance by itself. Recital One refers to
Article 22 of the Covenant of the League of Nations, which leads back to
Part I of both the Treaty of Versailles and the Treaty of Sevres. Recital Two
refers to the Balfour Declaration that was adopted by the Decision of the
Principal Allied Powers at the San Remo Conference which, four months later,
was transformed into Article 95 of the Treaty of Sevres. Recital Three then
mentions the historical connection of the Jewish People with Palestine and it
also organically links together all three components of the Jewish legal
title when it further states that "recognition has thereby been given...
to the grounds for reconstituting their national home in that country".
The word thereby, together with the plural rendition of the word grounds,
provide the connecting thread for all three recitals. Furthermore, the word
reconstituting, as used here, is a direct reference to the State of Judea, since the only
country with which there was an historical connection by the Jewish People
was Judea before its name was changed to Palestine by the Roman Emperor
Hadrian. The word Judea in Greek and Latin actually connotes "the
Jewish country", further evidence of the Jewish historical connection.
The instrument containing the Mandate for Palestine is thus the final
locus or resting place of Jewish legal rights to all of Palestine. However, it should be
remembered, that although the Mandate for Palestine is also of the
greatest importance for asserting these rights, it is not the starting-point
of Jewish sovereignty over all of Palestine. That occurred on April 25, 1920, the exact date when Great Britain was appointed the
Mandatory and entrusted with a Mandate to implement the Balfour Declaration
for the benefit of the Jewish People, who were defined as World Jewry, rather
than the Jews of Palestine. It was then that Article 22 of the League of
Nations Covenant became intertwined and integrated with the Balfour
Declaration which together devolved sovereignty over Palestine to the Jewish People
to reconstruct the Jewish National Home.
This constituted official recognition under
international law of Jewish legal rights and title to all of Palestine, which has never since
been altered by any other binding act or instrument of international law that
has also met the test of legality.
In this regard, it is worthwhile to assess the
claim that Jewish legal rights and title to the whole country including Judea, Samaria and Gaza, ceased to have effect
with the end of the Mandate for Palestine. This claim is wrong
not only for the reason that the U.N. Partition Resolution of November 29,
1947 failed to be accepted at the relevant time by the concerned Arab
parties, including the local Arab inhabitants, and was in any case only a
recommendation that was not self-executing. There is a more fundamental
reason why Jewish legal rights and title over all of Palestine continued after the
end of Mandate which relates to the doctrine of estoppel, which applies both
in international law as well as in the municipal or internal laws of nations.
This doctrine affects three distinct groups or parties. First, all the
members of the League of Nations, over fifty in number are debarred by virtue
of this doctrine from denying what they had previously assented to, at the
time the Mandate for Palestine was confirmed by the League, i.e., that the
country in its entirety including Judea, Samaria and Gaza was exclusively
reserved for the Jewish People for the purpose of setting up its national
home or state.
Second, the doctrine of estoppel also applies
with even greater force to the United States, which had
specifically accepted all the terms of the Mandate for Palestine in a treaty it signed
with Great Britain on December 3, 1924. The ratification of this treaty by the
U.S. Senate had the additional legal effect of making the Mandate for Palestine and the Balfour
Declaration which was its breath and essence, part of the domestic law of the
country. This is a fact of enormous importance, which has been conveniently
forgotten today by the American Government that wrongly calls legally
established Jewish settlements in Judea, Samaria and Gaza, "obstacles to
peace", and whose expansion it considers "inflammatory and
provocative". By its previous approval of the treaty, the U.S. is estopped from
denouncing or taking any action against Jewish settlement activity in the Land of Israel.
Finally, the doctrine of estoppel applies with
equal validity to all Arab states whose own creation under international law
derived from the very same global settlement made by the Principal Allied
Powers at San Remo and Sevres which led
to the establishment of the Jewish State. The Arabs cannot gleefully accept
national rights accorded them under this settlement while at the same time
denying them to the Jewish People. By doing this, they are engaging in blind
and willful disobedience of international law, which is also plainly irrational.
One additional note related to this matter is
that it is unnecessary to base the continuation of Jewish legal rights and
title to all of former Palestine on Article 80 of the
U.N. Charter. This provision was designed as a stop-gap measure until the new
trusteeship system set up by the Charter could replace the Mandates System
and take full effect. However, once the Jewish State came into existence,
Article 80 ceased to apply to Palestine, since the country
could no longer be placed under the trusteeship system by means of a
trusteeship agreement.
Unfortunately what was clearly established in
regard to Jewish legal rights and title to all of Palestine under international
law both by the San Remo Decision on Palestine and the Mandate for Palestine became almost
immediately obscured and undermined by new events and developments. This
process began with the overthrow of the Turkish Sultanate by revolutionary
armed forces led by Mustafa Kemal, later called Kemal Ataturk.
After taking complete control of the Turkish
Government, Ataturk refused to accede to the loss of any Turkish territories
in Anatolia, as provided in the Treaty of Sevres. These
territories included Greek-speaking Smyrna and its surroundings, Cilicia or Little Armenia and
the Kurdish-inhabited parts of South-Eastern Anatolia. His sweeping military
triumphs forced the scrapping of the Treaty of Sevres which was replaced by
the Treaty of Lausanne on July 24, 1923, ratified a year later
on August 6, 1924. This development did
not directly affect the San Remo Decision on Palestine nor the status of the
newly emergent countries detached from the Ottoman Empire that became Arab
states. The damage done was of another order.
The various provisions of the Treaty of Sevres
which had clearly set out the new legal structure for Palestine and that of
Syria and Mesopotamia in an unambiguous way were not repeated in the Treaty
of Lausanne, but simply omitted altogether, replaced by a vague clause
(Article 16), which referred to the future of territories "being settled
or to be settled by the parties concerned" among which was Palestine,
over which Turkey again renounced all rights and title, as it had done
previously when the Sultan's representatives signed the Treaty of Sevres.
The change in regime in Turkey clouded the legal
picture for Palestine in particular since
the clear-cut provisions in the Treaty of Sevres which applied to it and left
no doubt about Jewish legal rights and title to Palestine and the all-important
date of their inception under international law stemming from the San Remo
Decision were no longer there.
As a result, many renowned jurists have wrongly
maintained that Turkey only lost its sovereignty over Palestine and the rest
of the Fertile Crescent when it agreed to the Treaty of Lausanne of 1923,
though the Treaty of Versailles of 1919, also recognized by Kemal's Turkey,
expressly rebuts that incorrect contention, as does the first recital in the
Preamble of the Mandate for Palestine as well as Turkey's earlier acceptance
of Wilson's Fourteen Points, delivered in an address to the U.S. Congress on
Jan. 8, 1918, one point of which dealt specifically with Turkey limiting its
control to its own peoples. In any event, the provisions of the Treaty of
Sevres still have great evidentiary value despite its non-ratification, to
show what the Principal Allied Powers actually intended to do or had in mind
when they adopted the Balfour Declaration as the only basis of the Mandate
for Palestine.
The changes produced by Ataturk's rise to power
were also accompanied by a sudden American intervention in the involved
process then underway to confirm all the new mandates that were allotted to
Mandatories under the Mandates System. The United States unexpectedly insisted
on receiving for itself as well as for its nationals the same rights and
benefits that were being given to all members of the League of Nations and their nationals,
which would have been granted to them in any event. This new demand unduly
held up the pending confirmation of the Mandate for Palestine that had already been
submitted by Balfour on behalf of the British Government to the Council of
the League of Nations on December
7, 1920, and was on the verge of being acted upon.
The American maneuver produced very deleterious
effects for Jewish legal rights and title to all of Palestine. Not only did it
prevent the immediate confirmation of the Mandate for Palestine by the
Council of the League of Nations, but, more importantly, the irritating delay
gave more time to the British Government to play around with the provisions
of the Mandate for Palestine that had already gone through numerous drafts
under the guiding hand of the British Foreign Minister. The American
Government never acknowledged the damage their unnecessary demands caused the
Jewish National Home, even if done unwittingly.
The damage done soon became evident enough.
Thanks to the unwelcome American intrusion, the British deviously sneaked in
a new provision into the Mandate, that of Article 25, using as a lame excuse
Abdullah's threatened advance into Syria to protest his brother's eviction by
the French, which had no chance of succeeding but amounted to mere bluster
and feigned action. This additional provision to the Mandate for Palestine provided for a
different administration of Transjordan from the rest of Palestine west of the Jordan River that led over the
course of time, by various illegal steps additionally taken by the British to
the complete loss of Transjordan from the Jewish
National Home. The loss of that territory, once considered absolutely
essential even by Chaim Weizmann and Nahum Sokolow for Palestine's future economic
prosperity, deprived Palestine of a great reserve of
land that was intended for Jewish settlement and development, as in the olden
days when Jewish life flourished there.
The British engaged in other shady maneuvers
and artifices whose combined effect was to distort the true legal meaning of
the Mandate for Palestine and put in doubt
Jewish legal rights and title to the whole country.
The author of this article served as a legal
adviser to Professor Yuval Ne'eman in international law matters affecting the
status of the Land of Israel, at the time the
latter was Minister of Energy and Infrastructure in the Shamir Government
(1990-92). He presented a research paper to the Minister in which he detailed
some of the methods or devices employed by Britain to falsify the explicit
provisions of the Mandate for Palestine that were meant to secure the
establishment of the Jewish National Home and hence the Jewish State.
However, these methods or devices were so
skillfully contrived and artfully executed, they fooled most people at the
time. And because they were also based on Zionist antecedents provided by the
likes of Nahum Sokolow and Asher Ginsberg and supported to a certain extent
by the statements of Chaim Weizmann himself, the British were able to get
away with their brazen undermining of the Jewish National Home until it
became obvious what they had done. By that time, it was already too late to
do anything to reform the situation and execute the Mandate according to its
original true meaning. The British methods or devices included the following
acts of sabotage of the Jewish National Home:
A.
Changing the meaning of the words "the establishment in Palestine of a
national home for the Jewish People" to connote not the establishment of
an independent Jewish State, but rather a cultural or spiritual center, as
earlier advocated by both Ahad Ha'Am and Nahum Sokolow.
B. Misrepresenting the
Mandatory's solemn obligations under the Mandate to include not only
obligations in favour of the Jewish People, but also undertakings of equal
weight designed to satisfy Arab aspirations for self-government in Palestine. In truth, there were
no British obligations towards "Arabs", in a national or collective
sense, which were contained in the Mandate for Palestine, since their claims
for nationhood had already been amply satisfied in the neighbouring
countries. It is true that the Mandate contained a specific provision making
Arabic an official language, but since that was also done for English, it can
in no way be deduced that Arab national rights were recognized under that
provision alone.
C. Introducing the
illegal principle of partition into the Mandate Agreement, which was expressly
forbidden by Article 5 of the text of the Mandate. Here the British showed
great ingenuity, using all their brilliant grammatical skills to find a
mother lode of new meaning from the simple phrase "in Palestine". They turned
what was an innocuous expression originally used by the Zionists in the Basel
Program of 1897 into a weapon to cut down the size of the Jewish National
Home, which was always meant to cover the entire territory comprising
historical Palestine.
D. Administering
Palestine in such a way as to bring about the establishment of an independent
Arab Government for Palestine, which was, of course, the complete opposite of
what was required to be done under the Mandate's provisions. This British
policy of converting a Jewish Palestine into an Arab Palestine reached its
outrageous apex in the infamous White Paper of May 17, 1939, presented by Colonial Secretary Malcolm
Macdonald on behalf of the British Government led by Prime Minister Neville
Chamberlain. That constituted an unrivaled act of diabolical treachery that
will be remembered for all time because it prevented the rescue of millions
of Jews trapped in the Holocaust who could have found refuge in Palestine, had the British truly
implemented the Mandate as they were legally required to do.
Those British figures who were chiefly
responsible for tearing asunder the definitive peace settlement reached at
San Remo and Sevres and concomitantly with obfuscating Jewish legal rights
and title to all of Mandated Palestine are among the most revered personages
in British and Zionist history, specifically George Nathaniel Curzon, Herbert
Samuel and Winston Churchill.
Curzon was a leading member in Prime Minister
Lloyd George's War Cabinet, who became Foreign Secretary upon the retirement
of Arthur James Balfour. He was placed in charge of Palestine's affairs during the
critical formative years of the Mandate when it was in the midst of being
drafted. He displayed a very negative attitude to the task he was assigned.
He detested (and this is not too strong a word) the whole idea of creating a
Jewish State and did his utmost to weaken its legal basis and to slow it
down. He was ably aided by his officials who were much less hostile to Jewish
aspirations, notable among whom were Eric Forbes Adam, Robert Vansittart and
Hubert Young. What Curzon managed to do was to detrimentally change many of
the original clear-cut provisions of the Mandate for Palestine designed to secure its
establishment as a Jewish State, which had already been approved earlier by
Balfour when he was in charge of overseeing the actual drafting of the
Mandate for Palestine.
Despite Curzon's best attempts to prevent a
Jewish state from being seen as the real and most important objective of the
Mandate for Palestine, he did not fully
succeed. That job was left to two others, Herbert Samuel and Winston
Churchill, who were put in charge of Palestine's affairs, when
jurisdiction over colonies and mandated territories was taken away from the
Foreign Office and transferred to the Colonial Office early in 1921.
The nefarious work begun by Curzon was
ironically taken over and completed by the erstwhile Zionist, Herbert Samuel,
who just before his appointment as British High Commissioner in Palestine worked closely with
Chaim Weizmann in the Zionist Organization and helped to prepare the Zionist
proposals submitted to the Paris Peace Conference of 1919. Samuel's
subsequent undermining of what was the true intent of the Mandate for
Palestine was recorded in the anti-Zionist "Churchill White Paper"
of June 3, 1922, which he wrote with the blessing and connivance of Winston
Churchill, then the Secretary of State for the Colonies, and which was
accepted under ominous circumstances by the official Zionist leadership just
prior to its release.
It was this White Paper of June 3, 1922 which was a turning point which caused all the
future difficulties in Palestine and wrecked the
original plan for establishing an independent Jewish State under British
tutelage. The reason is simple enough. After publication of this White Paper,
all British Governments which followed over the years implemented not the
actual terms of the Mandate for Palestine but the interpretation
or policy contained in the White Paper as to what the British responsibility
and role was to be under the Mandate. The latter required a Jewish State,
while the Churchill White Paper negated it, despite Churchill's false claim
that such a state was not precluded, made fourteen years later in his
testimony before the Peel Royal Commission. His White Paper also elevated
Arab pretensions and aspirations to such an extent that everything thereafter
became muddled and unclear, subject to continuous disputes as to what was
really intended by the Mandate for Palestine.
The British circumvention of the Mandate for Palestine continued apace during
the entire period of Mandatory rule, which lasted from July 1, 1920 to May 14,
1948.
The question now arises in light of what
occurred in the past just what Israel can do today to
rectify the British legacy of betrayal and the consequent widespread
ignorance surrounding Jewish legal rights and title to all of former Palestine. The answer is to
first learn what the rights granted to the Jewish People under international
law were (i.e., under the San Remo Decision adopting the Balfour Declaration
on April 25, 1920 and its projected implementation in the Mandate for
Palestine), and then behold how true international law was perverted and
sabotaged by the British. This is extremely important because everyone today
cites "international law" in favour of a fictitious nation called
the "Palestinians" whose land is being "occupied" by the
Jewish nation of Israel which is highly ironic and even laughable in view of
the fact that this land that is called "occupied" was always meant
under Article 6 of the Mandate for Palestine to be "closely
settled" not by Gentile Arabs, but by the Jews of the world who would
become Palestinian and then Israeli Jews in the course of time. What true
international law is on the subject is neither discussed nor exposed nor
really known by hardly anyone.
Next, Israel must act according to
what that law truly presupposes, namely a Jewish State in the whole Land of Israel, including both sides
of the Jordan. Present
circumstances, of course, do not allow for the fulfillment of all Jewish
rights to our country, particularly as regards those parts of Transjordan which comprise the Land of Israel such as Gilead and Bashan, but we should never
renounce those rights, which, lamentably, is exactly what has been done,
illegally of course, by all Governments of Israel since 1993.
It is safe to assume that the foregoing advice
will never be acted upon so long as there is an anti-nationalist Labour party
and other "peace parties" who advocate a spurious peace, instead of
believing in and fighting for the integrity and non-partition of the Land of Israel. Sadly, the same may
even be said about the Likud party in its present configuration, because it
has abandoned the ideology and spirit of what the original Herut Party once
advocated in the 1950's and 1960's, namely an indivisible Land of Israel.
While no one should denigrate the cause of true peace, no country in the
history of the world ever voluntarily divested itself of important parts of
its legally recognized homeland, for the sake of this valued goal. Neither
should the State of Israel.
Only a future Government of Israel infused with
the proper Jewish nationalist and religious spirit, knowledge and pride can
change what is today a murky and forlorn situation.
As for what can be done actually now, Israel must —
[1] immediately scrap the "Oslo Peace
Process" which, incredibly, recognizes the national and political rights
of a motley Gentile people to substantial parts of the Land of Israel;
[2] evict the so-called and falsely-denominated "Palestinian
Authority" and its entire leadership from the Jewish country, and
[3] annex or incorporate all of Judea, Samaria and Gaza into the Jewish
State;
[4] All Arabs who do not profess loyalty to the Jewish State must leave the country
and be re-settled in other Moslem countries, just as happened between the
Greeks and the Turks after World War I;
[5] No Arab parties professing national and collective rights for Arabs in
the Jewish country should be allowed to sit in the Knesset.
The Moslems who live in the Land of Israel are not the indigenous
inhabitants, as they falsely claim to be. They are mainly foreign Gentiles,
all of whom are of mixed ancestry, including some of Jewish descent who were
forcibly converted in centuries past. These foreign Gentiles (in Hebrew: nochrim) have no national
rights to the Land of Israel and/or Palestine. They have boldly
appropriated, without any right to do so, the name of
"Palestinians" for themselves, though there is no such nation and
have also removed this name from its Jewish and Zionist context under the
Mandate. Their claims are totally invented and are deliberately imitative of
genuine Jewish national rights which exist for no other nation in the Land of
Israel, but which are now impugned under a false perception or reading of
international law.
The future steps that need to be taken to
restore all of the Jewish country to its sovereign owner, the Jewish People,
are at this point clear enough.
It is fervently
hoped that the day is not far off, especially under the new Sharon
Government, that Israel will finally abandon what has been the most dangerous
and suicidal course for a Jewish government to have ever followed: a policy
which illegally transfers integral parts of the Jewish homeland to an enemy
bent on destroying it and which has allowed it to create foreign rule and the
rudiments of a state and army in the very midst of the Jewish country, led by
a gang of bloody terrorists and murderers as seen only too well today.
|
Appendix IV: San Remo Resolution — April 25, 1920
It was agreed — (a) To accept the terms of the
Mandates Article as given below with reference to Palestine, on the
understanding that there was inserted in theproces-verbal an undertaking by the Mandatory
Power that this would not involve the surrender of the rights hitherto
enjoyed by the non-Jewish communities in Palestine; this undertaking not to
refer to the question of the religious protectorate of France, which had been
settled earlier in the previous afternoon by the undertaking given by the
French Government that they recognized this protectorate as being at an end.
(b) that the terms of the Mandates Article should be as follows:
The High Contracting Parties agree that Syria and
Mesopotamia shall, in accordance with the fourth paragraph of Article 22,
Part I (Covenant of the League of Nations), be provisionally recognized as
independent States, subject to the rendering of administrative advice and
assistance by a mandatory until such time as they are able to stand alone.
The boundaries of the said States will be determined, and the selection of
the Mandatories made, by the Principal Allied Powers.
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 8,[1] 1917, by the British Government, and adopted by the other
Allied Powers, in favour of the establishment in Palestine of 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.
La Puissance mandataire
s'engage a nommer dans le plus bref delai une Commission speciale pour
etudier toute question et toute reclamation concernant les differentes
communautes religieuses et en etablir le reglement. Il sera tenu compte dans
la composition de cette Commission des interets religieux en jeu. Le
President de la Commission sera nomme par le Conseil de la Societe des
Nations.
The terms of the
mandates in respect of the above territories will be formulated by the
Principal Allied Powers and submitted to the Council of the League of Nations for approval.
Turkey hereby undertakes, in
accordance with the provisions of Article [132 of the Treaty of Sevres] to
accept any decisions which may be taken in this connection.
(c) Les mandataires
choisis par les principales Puissances allies sont: la France pour la Syrie,
et la Grand Bretagne pour la Mesopotamie, et la Palestine.
In
reference to the above decision the Supreme Council took note of the
following reservation of the Italian Delegation:
La Delegation Italienne
en consideration des grands interets economiques que l'Italie en tant que
puissance exclusivement mediterraneenne possede en Asie Mineure, reserve son
approbation a la presente resolution, jusqu'au reglement des interets
italiens en Turquie d'Asia.
Footnote:
1.
The actual date was November 2, 1917.
|
Appendix V: SECURITY COUNCIL RESOLUTION 242: A VIOLATION OF LAW
AND A PATHWAY TO DISASTER
Howard Grief
November 2007
Resolution 242, adopted by the United Nations
Security Council five and a half months after the outbreak of the Six-Day War
of June 1967, stated the principles for the establishment of a just and
lasting peace in the Middle East. The goal of
Resolution 242 was "to achieve a peaceful and accepted settlement in
accordance with the provisions of this resolution". Since Resolution 242
was not self-enforcing, a settlement of this kind could only be achieved
through direct negotiations between the parties who were affected by the
resolution. The Draft Resolution that became Resolution 242 was introduced by
the United Kingdom Permanent Representative, Lord Caradon (Hugh Mackintosh
Foot) on November 16, 1967 and passed unanimously
on November 22, 1967. Caradon based his
Draft Resolution on Chapter VI of the U.N. Charter dealing with the
"Pacific Settlement of Disputes" containing non-binding provisions
involving "parties to any dispute, the continuance of which is likely to
endanger the maintenance of international peace and security" (Article
33 of the Charter). This Resolution was not based on Chapter VII of the
Charter dealing with actions or enforcement measures with respect to threats
to the peace, breaches of the peace and acts of aggression, as laid down in
articles 41 and 42 of the Charter. Though the legal basis of Resolution 242
is not actually specified in the resolution itself, it can be deduced from
its terms and language to be a non-obligatory recommendation and from the fact
that it does not make any prior determination of the existence of any threat
to the peace, breach of the peace or act of aggression, as required by
article 39 of the Charter. This determination is a necessary condition before
any enforcement measures can be taken by the U.N. for failure by the parties
to the conflict to comply with the decisions of the Security Council.
As a consequence of Resolution 242 being only a
recommendation to the states involved in the Six-Day War of June 1967
concerning the best way to achieve a just and lasting peace in the Middle
East, it cannot be classified as "international law" nor can it
produce "legal rights" in favour of any parties to whom it is meant
to apply. Neither, for that matter, does the Resolution produce "legal
obligations" that are imposed upon all the states concerned, requiring
them to act in conformity with the resolution unless those states agree
mutually to do so. It is also important to note that Resolution 242 is
applicable to states only, and not to non-state entities such as the
"Palestine Liberation" Organization.
Two principles, supposedly in fulfillment of
the U.N. Charter, are enunciated in the Resolution to attain "a just and
lasting peace in the Middle East" or a peaceful
and accepted settlement. The first principle applies to Israel alone and calls for
the "withdrawal of Israeli armed forces from territories occupied in the
recent conflict". The use of indefinite language as regards Israel's contemplated
withdrawal was intentional. The British text was preceded by an American
draft resolution introduced a week earlier on November 7, 1967 and fully
reflected the U.S. position on the question of Israel's recommended
withdrawal "from territories occupied in the recent conflict".
Neither the British nor the American draft resolutions identified the
territories from which a withdrawal of forces would be made, nor was a time
frame given for this withdrawal. These points were to be decided, as already
indicated, by negotiations between the parties and hence no immediate Israeli
withdrawal was required to comply with the resolution. The American draft was
based on talks previously held with Israel to obtain its consent
to withdraw from most but not all "the" territories allegedly
"occupied" by Israeli armed forces in the Six-Day War. In those
talks, Israel agreed to withdraw
from all of Sinai but not from the Gaza Strip which it wanted to keep,
provided a peace treaty could be concluded with Egypt. Israel refused to withdraw
from the other territories without proper security adjustments or border
changes, the extent of which may or may not have involved major changes to
the pre-Six-Day War borders, depending on how "secure" the
negotiated borders would be. In order for Israel to have secure borders
with Jordan, in accordance with
the resolution, extensive border modifications were required, otherwise they
would always be insecure. On the other hand, the U.S. believed that only
"minor" border changes should be made, but no substantive
alterations.
The American position on the extent of the
Israeli withdrawal was first enunciated by President Johnson in a speech
delivered on June 19, 1967. He stated:
There
are some who have urged, as a single, simple solution, an immediate return to
the situation as it was on June 4. As our distinguished and able Ambassador,
Mr. Arthur Goldberg, has already stated, this is not a prescription for
peace, but for renewed hostilities.
Certainly troops must
be withdrawn, but there must also be recognized rights of national life, progress
in solving the refugee problem, freedom of innocent maritime passage,
limitation of the arms race, and respect for political independence and
territorial integrity.
(Bernard Reich [ed.], Arab-Israeli
Conflict and Conciliation: A Documentary History, Praeger Publishers,
Westport, Connecticut (1995), Document Entitled: Johnson's Five Principles of
Peace, p. 97 at p. 99.)
President Johnson thus linked any Israeli
withdrawal of troops with the attainment of all five principles that he set
out in his speech. He emphasized strongly that the withdrawal of Israeli
forces was not to be immediate, but would take place only when the other
conditions he listed were also fulfilled.
The American position on Israel's withdrawal was
challenged in the Security Council by three other draft resolutions submitted
by Latin-American countries, the Asian-African nations of India, Mali and Nigeria and separately by
Soviet Russia. These three drafts demanded a complete Israeli withdrawal to
the lines existing prior to the outbreak of war, i.e., to the June 4, 1967 lines. However, none of them ever reached the
stage of a vote in the Security Council, since after much wrangling between
the members, it was unanimously decided at the end to support only the
British text of Lord Caradon, that deliberately used the very same indefinite
language on Israeli withdrawal as the draft American resolution did. Thus it
is clear that Resolution 242, when finally adopted, did not require a total
Israeli withdrawal of forces "from all the territories", but only
"from territories", which took into account Israel's security
concerns on this question.
If any further evidence is needed to prove that
Resolution 242 did not oblige Israel to withdraw completely to the June 4,
1967 lines, it is provided by three of the formulators of this resolution,
Arthur J. Goldberg, U.S. Ambassador to the U.N., George Brown, the British
Foreign Secretary in 1967 at the time the resolution was adopted, and Lord
Caradon, the sponsor of the resolution.
In the words of Ambassador Goldberg in a speech
he delivered on May 8, 1973 in Washington:
Resolution
242(1967) does not explicitly require that Israel withdraw to the lines
occupied by it before the outbreak of the war. The Arab States urged such
language; the Soviet Union... proposed this at the Security
Council, and Yugoslavia and some other nations
at the Special Session of the General Assembly. But such withdrawal language
did not receive the requisite support either in the Security Council or in
the Assembly.
Resolution 242 (1967)
simply endorses the principle of "withdrawal of Israel's armed forces from
territories occupied in the recent conflict", and interrelates this with
the principle that every state in the area is entitled to live in peace
within "secure and recognized boundaries".
The notable omissions —
which were not accidental — in regard to withdrawal are the words
"the" or "all" and "the June
5, 1967 lines". In other words, there is lacking a declaration
requiring Israel to withdraw from
"the" or "all the" territories occupied by it on and
after June 5, 1967. (Tekoah, Yosef, In the Face of Nations,
edited by David Aphek, Simon and Shuster, New York, 1976, p. 257)
Substantiating Ambassador Goldberg's
interpretation of Resolution 242, George Brown stated in January 1970:
I
formulated the Security Council resolution. Before we submitted it to the
Council we showed it to the Arab leaders. The proposal said Israel will withdraw from
territories that were occupied and not from "the" territory, which
means that Israel will not withdraw from
all the territories (Tekoah, Yosef, op. cit., p. 263).
More corroboration is provided by Lord Caradon:
Withdrawal
shall take place to secure and recognized boundaries, and these words were
very carefully chosen: they have to be secure, and they have to be
recognized. They will not be secure unless they are recognized. And that is
why one has to work for agreement. This is essential. If we had attempted to
draw a map, we would have been wrong. We did not. And I would defend absolutely
what we did. It was not for us to lay down exactly where the border should
be. I know the 1967 border very well. It is not a satisfactory border, it is
where troops had to stop in 1947, just where they happened to be that night.
That is not a permanent boundary (Tekoah, Yosef, op. cit., pp. 263-64).
Later, in an interview with a Lebanese
newspaper, the Beirut Daily Star, on June
12, 1974, Lord Caradon is quoted as saying:
It would
have been wrong to demand that Israel return to its
positions of June 4, 1967 because those
positions were undesirable and artificial. After all, they were just the
places where the soldiers of each side happened to be on the day the fighting
stopped in 1948. They were just armistice lines. That is why we did not
demand that the Israelis return to them.
The second principle in Resolution 242 taken
directly from the U.N. Charter to achieve a just and lasting peace in the Middle East applies to every state
in the region. This principle affirms what the Charter supremely requires of all
states: "Termination of all claims or states of belligerency and respect
for and acknowledgment of the sovereignty, territorial integrity and
political independence of every state in the area and their right to live in
peace within secure and recognized boundaries free from threats or acts of
force." The language setting forth this goal was a reflection of Article
2, paragraph 4, of the U.N. Charter, which lays down the obligation that
"all members shall refrain in their international relations from the
threat or use of force against the territorial integrity or political
independence of any state...". The acceptance of this second principle
by Arab states which approved Resolution 242 meant in effect the recognition
by them of the State of Israel. This principle was the reason why Israel
agreed to accept the resolution of November 22, 1967, for not only did it
accord recognition of Israel by those Arab states accepting the resolution,
it also urged them to end their state of belligerency against the Jewish
State and acknowledge its right to live in secure and recognized boundaries.
Moreover, they also had to respect Israel's sovereignty and
political independence. Theoretical Arab recognition also resulted from one
of the recitals in the Preamble stating the need to work for a just and
lasting peace in which every State in the area can live in security and also
from the second clause of Resolution 242 which "affirms further the
necessity for guaranteeing the territorial inviolability and political independence
of every state in the area through measures including the establishment of
demilitarized zones".
The Arab states of Egypt and Jordan both
initially accepted Resolution 242 in the hope that Israel would then withdraw
from the territories they had just lost to Israel in the Six-Day War, which
either they had illegally acquired in the 1948 War or which never legally
belonged to them under international law. In regard to Jordan, the pro-Arab,
anti-Israeli journalist and author, Donald Neff, claims in a book he wrote
that a secret agreement existed between the U.S. and Jordan under which the
U.S. gave what he called "ironclad assurances" to King Hussein of
Jordan, "that the U.S. was prepared to support the return of a
substantial part of the West Bank to Jordan with boundary adjustments, and
would use its influence to obtain compensation to Jordan for any territory it
was required to give up" (see his book, Warriors for Jerusalem: The Six
Days that changed the Middle East, Linden Press/Simon & Shuster, New
York (1986), pp. 341, 345). The assurances given to Hussein, writes Neff,
were made by U.S. Secretary of State Dean Rusk, U.N. Ambassador Arthur J.
Goldberg and President Johnson himself in a meeting with Hussein at the White
House on November 8, 1967. Neff reports that
Hussein asked Johnson how soon he could expect Israel to withdraw and was
told by him that it would take place in six months and this time frame was
allegedly reiterated by Goldberg (op. cit., p. 342). Neff further states that
Israel acquiesced to the
terms of the secret agreement. However, Israel flatly denied ever
doing so.
Goldberg for his part not only denied the
accuracy of the assertion that Resolution 242 presupposed only minor border
changes, but emphatically denied that any assurance or commitment had ever
been given to King Hussein by the American Government that it would ensure Israel's withdrawal from the
Jordanian West Bank, as the King falsely claimed in U.S. newspaper interviews.
In his own newspaper article refuting Hussein's allegation of a secret
agreement with the U.S., that it would compel Israel's withdrawal from the
Jordanian "West Bank", Goldberg wrote:
In 1967,
I was the permanent representative of the United States in the United Nations.
In that capacity, I met with King Hussein in New York during November 1967
on four occasions. These conversations, as described in the reporting cables
on file with the U.S. Department of State, foreshadowed the United States drafting of, and
concurrence in, United Nations Security Council Resolution 242 of November
1967.
In the course of these
meetings, I made it clear to King Hussein that I was speaking at the express
authorization of President Lyndon Johnson. It was, I stated, the U.S. view
that in light of the fact that Jordan had entered the 1967 war after Israel
had urged it not to do so, and had been defeated, the United States could not
guarantee that the West Bank would be returned to Jordan. The most we could
do, I made clear, would be to use our influence to help Jordan get the best deal
possible.
I did say that we did
not visualize a Jordan limited only to the
East Bank. This is a far cry from a commitment to Jordan that we would
guarantee Israel's withdrawal from the West Bank. The statement in
Secretary Henry Kissinger's memoirs that I assured King Hussein that we would
compel Israel's withdrawal to the pre-June 5, 1967 border, except for minor
border rectifications, is inaccurate and unsupported by the contemporaneous
records of the Department of State ("Hussein's misreading of history", The Jerusalem Post, May 28,
1984, p. 8).
Goldberg's robust rebuttal of King Hussein's
allegation of a secret commitment made to him by the U.S. is significant.
Goldberg enjoyed a close relationship with President Johnson and evidently
knew his thinking on the subject of Resolution 242 and what it meant. Because
of his personal role in helping to draft the resolution, he was uniquely able
to refute the mischievous account of Henry Kissinger who served as Secretary
of State in the Richard Nixon and Gerald Ford Administrations. During his
period of public service, Kissinger was very active in urging Israel's withdrawal from Judea and Samaria. He conveniently used
the lie spread by Hussein to try to compel Israel to return to what
Israeli Foreign Minister Abba Eban called the "Auschwitz borders" of Israel that existed with Jordan prior to the Six Day
War.
The other principal enemy combatant, Syria, absolutely refused to
accept this resolution because it did not recognize the existence of Israel and did not want to
negotiate with it to make peace. However, Syria changed its mind after
it was defeated in the Yom Kippur War of 1973 and suffered a further loss of
territory. It then agreed to U.N. Resolution 338, adopted on October 22, 1973, which called upon the parties to
implement Resolution 242 in all its parts.
Taken together, the two principles of
Resolution 242, if implemented by the parties to the conflict, would require
Israel's withdrawal, not, as already noted, from "all" the
territories it allegedly "occupied" in the Six-Day War — the term
"occupied" is fraught with legal meaning under the Hague
Regulations of 1907 and the Fourth Geneva Convention of 1949 — but only a
withdrawal to "secure and recognized boundaries".
The Arab and Russian interpretation of this
resolution, i.e., that Israel must immediately
withdraw its forces back to the pre-June 5, 1967 lines without regard to
secure and recognized boundaries, and even before negotiations take place, is
completely unfounded. The withdrawal could only occur when all other
provisions and principles mentioned in the resolution were resolved at the
same time and not before. However, in keeping with the Khartoum Summit
Conference Resolutions of September 1, 1967, the Arab states
refused to enter into any peace talks with Israel, or recognize it, a
stance which forestalled any planned Israeli withdrawal. The stalemate ended
in the case of Egypt only when such talks
did begin, talks that resulted in a peace treaty signed on March 26, 1979, in which Israel agreed to withdraw
completely from Sinai over a period of three years. In that particular case,
the armistice borders of 1949 were now deemed to be in reference to
Resolution 242 "secure and recognized", as opposed to the former Auschwitz armistice borders with
Jordan.
Aside from any mis-interpretation of Resolution
242 by Russia and the Arab states,
the very principle of Israel withdrawal was
inimical to Israel and was not required
under the U.N. Charter as the Resolution purported. In fact, the Security Council
does not have and never had the authority or right to order Israel to
withdraw from territories that constituted historical and legal areas of the
Jewish National Home and Land of Israel that had been recognized implicitly
or explicitly as belonging to the Jewish People in various acts of
international law: the San Remo Resolution of April 25, 1920; the
Franco-British Boundary Convention of December 23, 1920; and the Mandate for
Palestine, confirmed by the League of Nations on July 24, 1922 and accepted
by the United States in the Anglo-American Treaty on Palestine of December 3,
1924. The principle of withdrawal in Resolution 242 is premised on the words
emphasized in the Preamble of this resolution, which refers to the
"inadmissibility of the acquisition of territory by war". This
dictum, it must be noted, is wrong, since it ignores the situation where a
state, threatened with imminent aggression or destruction by one or more
other states, takes preemptive action and captures parts of the territory of those
states in a war that breaks out between them. In this case it is certainly
admissible under international law for the state under imminent attack to
keep the territory that was captured from which the planned aggression
emanated. The dictum also smacks of great hypocrisy since many states in past
centuries have aggrandized their territory by capturing lands from other
states by means of war — that Resolution 242 naively states is
"inadmissible". A good example of this is the United States which took two-fifths
of the territory of Mexico as a result of the
Mexican War, 1846-1848. This territory includes what is today the states of California, Nevada, Utah and parts of Arizona, New Mexico, Colorado and Wyoming. France for its part added to
its domain by taking Alsace-Lorraine from Germany in World War I, and
also fought battles over territories that today comprise France, such as Savoy, Nice and Corsica that were once part of
pre-unified Italy, Sardinia and Genoa. Moreover, over the
preceding centuries Germany, Italy and Russia also acquired
territories in war with other states, and other examples abound. By contrast,
the State of Israel, which is a creation of the Jewish People and an inherent
part of it, never acquired legal title to the liberated Jewish territories as
a result of war it itself initiated, but only as a result of the decisions
taken by the Principal Allied Powers at the San Remo Peace Conference on
April 24-25, 1920 and in various acts of international law. The territories
liberated in the Six-Day War had been illegally removed by Britain from the
Jewish national patrimony during the twenty-eight years Britain administered
Palestine as a mandated territory from July 1, 1920 to May 14, 1948. What
happened in the Six-Day War was that the State of Israel, threatened with
stark Arab aggression and destruction, restored to the Jewish nation in a war
of self-defense those areas of the Jewish National Home and the Land of Israel that originally
belonged to it under international law. The situation was similar to what France achieved in World War
I, when it restored Alsace-Lorraine to its patrimony, after this territory
had been taken by Germany in the Franco-Prussian
War of 1870-71. Alsace-Lorraine was never called "occupied German
territory" after France re-conquered it.
Moreover, the dictum of the "inadmissibility of the acquisition of
territory by war" should be applied not to Israel, but to Jordan which illegally
occupied Judea and Samaria in the 1948 War of
Independence, and also to Egypt which did the same in
regard to Gaza. It is thus a serious
misrepresentation to characterize Israel's restoration of
Jewish-owned territory as an "occupation", as Resolution 242 did,
when it was nothing of the kind. To the extent that Resolution 242 calls for
an Israeli retreat from parts of the historical Jewish homeland, which
includes Judea, Samaria and Gaza as well as the Golan
and at least part of Sinai, it is to that extent illegal under international
law. In terms of the U.N. Charter under which Resolution 242 was supposedly
made, this resolution violates a key provision thereof, Article 80, which
declares in effect that until a trusteeship agreement has been concluded to
replace the then-existing Mandate for Palestine (no such agreement was ever
made), nothing shall be construed to alter the rights of any states or
peoples or the terms of existing international instruments. The language of
Article 80 refers implicitly to the rights of the Jewish People acquired
under the Mandate for Palestine and other international
acts related to the Mandate. Resolution 242 can therefore have no application
to any area of the Jewish National Home and Land of Israel or alter Jewish legal
rights thereto. Insofar as the resolution does alter these rights, by calling
for an Israeli withdrawal from territories historically connected with the
Jewish People, that were repossessed in the Six Day War, it is a violation of
international law and definitely not a principle in fulfillment of the U.N.
Charter as Resolution 242 falsely alleges in paragraph 1(i) of the
resolution. In this regard, since none of the territories that Resolution 242
infers were "occupied territories" were in actual fact
"occupied territories", but part of the national patrimony of the
Jewish People, or at the very least not owned by Arab states, this resolution
becomes devoid of any legal meaning. It represents not international law, but
a travesty of that law.
In addition to the resolution's incompatibility
with international law that bestowed the legal right to all of Palestine on
the Jewish People, the resolution also violated Israel's own constitutional
law in the form of the Area of Jurisdiction and Powers Ordinance and the
Proclamation issued on September 2, 1948 by Defense Minister David
Ben-Gurion, formally known as "Israel Defense Forces Government in the
Land of Israel" (or simply "the Land of Israel Proclamation").
Israeli constitutional law as it existed when Resolution 242 was adopted on November 22, 1967 prohibited Israel's withdrawal from the
territories comprising the Land of Israel that were liberated in
the Six Day War. That fact, however, did not stop the Eshkol Government from
accepting Resolution 242, a clear violation of Isareli law that has produced
disastrous repercussions for the country ever since. Rather than withdrawing
from the territories reconquered by the IDF in 1967, Israel was obliged to
incorporate those territories into the State in accordance with the
provisions of the aforementioned Area of Jurisdiction and Powers Ordinance and
the Land of Israel Proclamation or, at the very least, leave them open for
future incorporation under section 11B of the Law and Administration
Ordinance.
From another aspect, it is sterile to argue
that Israel is not obliged to withdraw from liberated Jewish territories
(Judea, Samaria, Gaza, Golan and Sinai) merely because of the fact that
Resolution 242 uses indefinite language rather than the definite article
'‘the" before the word "territories" in the official English
version in which the resolution was drawn up, but not incidentally in the
text of the U.N.'s four other official languages (French, Spanish, Russian
and Chinese). While it is undoubtedly true that Resolution 242, based on the
indefinite language employed therein, does not require a complete Israeli
withdrawal, Israel's rights to lands constituting its ancient and modern
patrimony should not be founded on this grammatical argument, as it so often
is by those who mistakenly believe that this resolution is a beneficial
document in support of Israel's position and rights. Israel's legal case for
keeping Judea, Samaria, the Golan Heights and formerly Gaza and Sinai is based on
a much sturdier foundation, without regard being paid to the indefinite
language of Resolution 242 which first and foremost calls for an Israeli
retreat, even if it is to secure and recognized boundaries or what are
sometimes called "defensible borders". That foundation was created
in the global peace settlement following the Great War of 1914-1918 between
the Principal Allied Powers and the Central Powers. In the settlement that
was then made, the aspirations of the Arab Independence Movement were amply
fulfilled, gaining most of the land mass of the Middle East, while all of
Palestine was left for the establishment of the Jewish National Home, i.e., a
future Jewish State, as signified by the Arabs themselves in the
Weizmann-Feisal Agreement of January 3, 1919. It was thus a great mistake for
Israel to approve this
resolution which denied or ignored its rights to all of Palestine, as recognized in the
global peace settlement concluded in 1919 and 1920. It was really an act of
utter folly by Israel to succumb to American
pressure on this critical point, requiring it to withdraw from parts of the
Jewish homeland, just as it was to accept the terminology of the resolution —
that these territories should be characterized as "occupied". The
result of this folly was to seriously undermine Israel's iron-clad legal case
to the liberated Jewish territories.
Israel should have made it clear
to the American Government from the very beginning that it is not required to
withdraw from any of the aforementioned territories and that it considered
them part of the Jewish national patrimony. This was true even in regard to
Sinai which, except for a relatively small portion of land in the north-west
part of the peninsula was not an officially recognized appendage of Egypt in 1967 under
international law. During the Ottoman Period prior to 1906, the Sanjak of
Jerusalem that unofficially comprised the core part of "Palestine",
but not the whole of it, included a large slice of Sinai in its northern and
central section, from El-Arish to the port of Suez and thence across to
Aqaba. From 1906 to 1949 the administrative boundary in Sinai was pushed back
under British coercion to a line extending from Rafah to Taba, which in 1949
became the armistice line until 1967. The Egyptian-Israeli Armistice
Agreement stated specifically that the demarcation line "is not to be
construed in any sense as a political or territorial boundary".
Resolution 242 adds two more requirements for
achieving a just and lasting peace in the Middle East. First, it affirms the
necessity for guaranteeing freedom of navigation through international
waterways in the area. This was a reference to Egypt's closure of the Tiran
Straits to Israeli shipping, an act of war which was a major factor in
sparking the Six-Day War, as President Johnson said in his June 19, 1967 speech. The narrow straits connect the Gulf of Eilat with the Red Sea. In addition, Egypt had prevented Israel from using the Suez Canal which, as an
international waterway, was also included in the call for freedom of
navigation for all nations in the Middle East.
Second, Resolution 242 "affirms further
the necessity for achieving a just settlement of the refugee problem".
The "refugee problem" had more than one meaning. It was naturally a
reference to the existing Arab refugee problem that has been immune to
resolution and has grown exponentially over the years by illogically adding
to the original number of refugees in 1948 and 1967 most of whom have already
passed away, all of their descendants including, amazingly enough, even
grandchildren and great-grandchildren who never lived in or fled from
Mandated Palestine, and providing them with free rations, medical care,
educational facilities and other services. Most of these so-called refugees
live in Gaza where about four-fifths or 80% of the
population receive support and benefits from the United Nations. The Arab
refugee issue has been shamelessly exploited by the twenty-one Arab states as
a propaganda weapon against Israel. No other group of
displaced persons in the world has held the status of refugees for such a
long period of time. The whole idea of Arab refugees remaining refugees even
after 60 years, or in effect forever, is nothing less than a gigantic fraud
that should be brought to an end by one simple method, the disbanding of the
U.N. agency (UNRWA) and the withdrawal of all U.S. and European funding for
it, that serve to perpetuate the on-going fraud.
"A just solution of the refugee
problem" also carried with it a reference to the problem of Jewish
refugees from Arab countries who were driven out or escaped from Moslem
persecution both before and after the rebirth of the State of Israel. In
fact, the number of Jewish refugees exceeded the number of Arab refugees who
fled Palestine and Israel during the course of
war. There were about 800,000 Jews who left Arab countries — up to one
million if Shi'ite Iran is included — as compared to about 700,000 Arabs who
left what became the State of Israel both in 1948 and 1967.
No mention is made in Resolution 242 of the
so-called "Palestinians" and their alleged right of
self-determination. That would only come later, on December 10, 1969, when
the General Assembly adopted Resolution No. 2535 (XXIV) which affirmed
"the inalienable rights of the people of Palestine", followed in
later years by a slew of other resolutions of the same type that converted
the "refugees" into a new "nation" unknown in history and
no different from other Arabs living in Israel and the Arab states.
To carry out Resolution 242, a special
Representative was designated by the Secretary-General "to proceed to
the Middle East, to establish and maintain contacts with the
States concerned in order to promote agreement and assist efforts to achieve
a peaceful and accepted settlement in accordance with the provisions and
principles in this resolution". This representative was Gunnar Jarring,
the Swedish diplomat who failed in his mission because the Arab states would
not recognize Israel, negotiate with it nor
make peace with Israel, in accordance with
the Khartoum Arab Summit Resolutions of September
1, 1967.
Resolution 242 was further re-affirmed in
Security Council Resolution 338 adopted on October 22, 1973 in the wake of the Yom Kippur War. This new
resolution called for a cease-fire and the implementation of Resolution 242
in all of its parts through negotiations conducted between the parties
concerned in order to establish a just and durable peace in the Middle East. Though Resolution 338
uses the word "decides" in urging the parties to start negotiations
immediately, concurrently with the cease-fire, to ostensibly bring this
resolution within the parameters of Article 25 of the Charter, which requires
U.N. members to carry out the binding "decisions" of the Security
Council, the essential meaning or nature of Resolution 242 as a non-binding
recommendation under Chapter VI of the Charter is not changed. A Chapter VI
resolution cannot be converted into a Chapter VII resolution by this clever
tactic, when the language of the original resolution remains exactly the
same. Furthermore, no sovereign state can be forced into negotiations with
another state against its will. Therefore, Resolution 242 remains a
non-binding resolution under Chapter VI of the Charter, to which Article 25
does not apply.
In the years that followed the adoption of
Resolution 242, the American position on Israeli withdrawal moved much closer
to the Arab position as originally understood by King Hussein of Jordan. A harbinger of a new
American interpretation of Resolution 242 came in a speech delivered by the U.S. representative to the
U.N., Charles W. Yost, in the Security Council, that dealt with the question
of the status of Jerusalem. Yost, acting under
the explicit instructions of President Nixon, deplored the application of
Israeli law to what he called "the occupied portions of the city".
He further expounded on this point:
The
United States considers that the part of Jerusalem that came under the
control of Israel in the June war, like other areas occupied by Israel, is
occupied territory and hence subject to the provisions of international law
governing the rights and obligations of an occupying power. Among the
provisions of international law which bind Israel, as they would bind
any occupier, are the provisions that the occupier has no right to make
changes in laws or in administration other than those which are temporarily
necessitated by his security interest, and that an occupier may not
confiscate or destroy private property. The pattern of behavior authorized
under the Geneva Convention and international law is clear: the occupier must
maintain the occupied area as intact and unaltered as possible, without
interfering with the customary life of the area, and any changes must be
necessitated by immediate needs of the occupation. I regret to say that the
actions of Israel in the occupied
portion of Jerusalem present a different
picture, one which gives rise to understandable concerns that the eventual
disposition of East Jerusalem may be prejudiced and the rights and
activities of the population are already being affected and altered. (The
Arab-Israeli Conflict, edited by John Norton Moore, Princeton University
Press, Princeton, New Jersey, Volume III, Documents [1974], pp. 993-994).
As seen by the foregoing statement of
Ambassador Yost, the U.S. Administration under President Richard Nixon now
formally considered eastern Jerusalem as "occupied
territory", being part of the "West Bank" of Jordan, and it did not
recognize the application of Israeli law, jurisdiction and administration to
this part of Jerusalem. This was a departure
from the policy adopted by the previous Johnson Administration on the
question of Jerusalem, as stated by Yost's predecessor, Arthur J. Goldberg,
even though it, too, had not approved unilateral steps taken by Israel to
include the eastern part of the city within its legal jurisdiction. In a
letter he sent to the New
York Times on March 12, 1980 "to set the record straight",
as he put it, he wrote:
Resolution
242 in no way refers to Jerusalem and this omission was
deliberate. I wanted to make clear that Jerusalem was a discrete matter,
not linked to the West Bank.
In a number of speeches
at the U.N. in 1967, I repeatedly stated that the armistice lines fixed after
1948 were intended to be temporary. This, of course, was particularly true of
Jerusalem. At no time in these many speeches did
I refer to East Jerusalem as occupied territory.
My speech of July 14, 1967, which Hodding Carter[*] distributed,
did not say that Jerusalem was occupied
territory. On the contrary, I made it clear that the status of Jerusalem should be negotiable
and that the armistice lines dividing Jerusalem were no longer viable.
In other words, Jerusalem was not to be divided
again.
This is a far cry from
Ambassador Yost's statement that we conceived East Jerusalem to be occupied
territory, to be returned to Jordanian sovereignty.
[* ] Hodding Carter,
the assistant secretary of state for public affairs in the Jimmy Carter
Administration.
The Yost statement to the U.N. Security Council
was followed by the unanimous adoption of Resolution 267 on July 3, 1969 that censured Israel in the strongest terms
for all measures and actions it had taken to change the status of Jerusalem. The Yost statement
also set the stage for the Rogers Plan enunciated several months later by
U.S. Secretary of State, William Pierce Rogers. In a speech he gave on December 9, 1969 containing his plan, he revealed how
the Nixon Administration now interpreted Resolution 242 on the question of
Israeli withdrawal, not merely from eastern Jerusalem but from all of the
so-called "occupied territories":
The
Security Council resolution neither endorses nor precludes [the] armistice
lines as the definitive political boundaries. However, it calls for
withdrawal from occupied territories, the non-acquisition of territory by
war, and the establishment of secure and recognized boundaries. We believe
that while recognized political boundaries must be established and agreed
upon by the parties, any changes in the pre-existing [armistice] lines [of
1949] should not reflect the weight of conquest and should be confined to
insubstantial alterations required for mutual security. We do not support
expansionism. We believe troops must be withdrawn as the resolution provides.
We support Israel's security and the
security of the Arab states as well. We are for a lasting peace that requires
security for both. (Reich, op.
cit., p. 105)
By saying that Israel's borders should not
reflect the weight of conquest and that any changes in the June 4, 1967 lines
should be confined to insubstantial alterations and by opposing Israeli
"expansionism", Rogers was adopting an unmistakable pro-Arab
position that Israel should give up almost all its territorial gains in the
Six-Day War and go back to the pre-existing lines of June 4, 1967 that
clearly were not the defensible borders required under Resolution 242.
President Nixon himself stated on July 1,
1970 that "Israel must withdraw to
borders that are defensible" (Yosef Tekoah, op. cit., p. 261). The Rogers
Plan was basically though not explicitly endorsed by President Reagan on
September 1, 1982 when he presented a peace proposal whose real architect was
Secretary of State George P. Schultz, in which the President said that the
United States, while it does not support the establishment of an independent
"Palestinian" state in the "West Bank" and Gaza, neither
does it support annexation or permanent control of those areas by Israel. He
further stated that Resolution 242 applies to all fronts, including the
"West Bank" and Gaza, though this is not
stated in the resolution itself and is therefore only an hypothesis and not an
actual fact. According to President Reagan, the extent to which Israel should be asked to
give up territory, "will be heavily affected by the extent of true peace
and normalization and the security arrangements". The conclusion seemed
to be that for full peace with the Arab states there would need to be nearly
full Israeli withdrawal from all territories taken in the Six-Day War, with
only insubstantial alterations. This prescription for the attainment of peace
was a clear reflection of the Rogers Plan. The Reagan Plan, as explained by
Secretary Shultz to King Hussein in a letter addressed to him in January
1983, also endorsed the concept that eastern Jerusalem which Israel had already annexed by
a government order issued on June 27, 1967 (promulgated the
following day) was part of the "occupied territory". This was
bizarre in light of Arthur Goldberg's repudiation of this very idea.
Goldberg, a former Supreme Court justice, was intimately involved in the
framing of Resolution 242 and therefore ought to have known what was or was
not included in this resolution.
One of the strangest reactions to Resolution
242 came from Menahem Begin. He was a minister of the National Unity
Government of Israel in December 1967 when it was decided to accept the
resolution, but he was apparently not privy to this decision. After he
learned of it, he expressed his disapproval, but did not resign from the
Government. However, when the Government in which he served accepted the
Second Rogers Plan on July 31, 1970, to renew a cease-fire and
"standstill" in the military situation between Egypt (then
officially called the United Arab Republic) and Israel and also to pursue an
agreement for the establishment of a just and lasting peace between Jordan
and Israel as well as between Egypt and Israel, Begin and the Gahal bloc of
the Herut and Liberal parties quit the Government. He did so because the new
Rogers Plan was explicitly based on Resolution 242 which required Israeli
withdrawal "from territories occupied" in the 1967 conflict that
under the American interpretation included Jerusalem and the Jordanian
"West Bank", and also all other fronts. For Begin that meant a new
partition of the Land of Israel which also jeopardized
Israel's security. Begin's
commendable reaction was consistent with his life-long principles as a devout
adherent of the Land of Israel that inexplicably
excluded the Sinai Peninsula. However, when he became Prime Minister
and signed the Camp David Framework Agreement for Peace in the Middle East, he abandoned his previous
opposition to Resolution 242. The preamble of this agreement states that the
agreed basis for a peaceful settlement of the conflict between Israel and its neighbours is
United Nations Security Council Resolution 242, in all its parts.
Furthermore, the final status of the "West Bank" and Gaza was to be decided upon
in negotiations based on all the provisions and principles of U.N. Security
Council Resolution 242. In accepting the applicability of Resolution 242 to
Judea, Samaria and Gaza, Begin, whether he realized it or not, was accepting
the damaging concept embedded in the resolution that these regions of the
Land of Israel were considered "occupied territories" from which
Israel was obliged to withdraw, even if the withdrawal was not to be a complete
one but only to secure and recognized boundaries. This concept was a bedrock
principle of the resolution that should have prevented Begin from endorsing
Resolution 242 as the agreed basis for reaching any possible peace agreement
with the Arab states concerned.
Begin's acceptance of Resolution 242 was a
stark repudiation of all that he previously professed. His volte-face contrasted with the steadfast
position taken by his successor, Prime Minister Yitzhak Shamir, who stoutly
believed that Israel had the right to
retain all of the territory then under its military control since in his
interpretation Resolution 242 did not apply to Judea, Samaria and Gaza. Moreover, Shamir
believed that Israel had fulfilled its
alleged obligations under the resolution by withdrawing from all of the
Sinai, which constituted over 90% of the so-called "occupied
territories". Shamir's interpretation was the right one for, as already
noted, Resolution 242 falsely assumed that all the liberated territories of
1967 were "occupied territories", contrary to both international
law, including the U.N. Charter, and Israeli constitutional law. In truth,
all of these territories were part of the Land of Israel that were either
included or illegally excluded from the Jewish National Home whose borders
were supposed to embrace all of the lands historically connected with the
Jewish People under the San Remo Resolution of April 25, 1920. By the time Shamir became Prime Minister on October 10, 1983, Israel had already carried
out a full-scale withdrawal from Sinai, as a result of the Egyptian-Israeli
Peace Treaty of March 26, 1979, thus bringing to an
end the assumed "occupation" of Sinai. No additional withdrawals
were required from the other territories since they were not really
"occupied territories", exactly as Shamir believed.
Finally, in a radical shift from President
Johnson's position, President George W. Bush, acting in concert with the
United Nations, Russia and the European Union, gave American support to the
Road Map Peace Plan advocating "an independent, democratic and viable
‘Palestinian' state living side by side in peace and security with Israel
and its other neighbors" in Judea, Samaria and Gaza. This plan, which
grew out of Resolution 242 and cited it in the preamble as one of its
foundations, envisages an end of Israel's so-called
"occupation" of these territories that it said began in 1967. The
idea that a new Arab state in what was once Mandated Palestine would live in
peace and security with Israel and be democratic is a naive expectation or
illusion that flies in the face of all of the empirical evidence that Arab
violence is and has always been endemic and that the establishment of true
democratic institutions is foreign to the Arab psyche and do not exist today
in even a single independent Arab state. To further claim that a new Arab
state in former Palestine would be a panacea to the existing Arab
antagonistic approach to the Jewish State is not only baseless, but more
importantly is a gross denial of Israel's legal rights under international
law to all of the Land of Israel as determined by the Principal Allied Powers
after the end of World War I which created Palestine, not for a fictitious
nation called "Palestinians", but rather for the Jewish People. There
is no need for another Arab state in Palestine since Jordan was created by the
British for that very purpose, and moreover, twenty-one Arab states already
exist in the Middle East. A new Arab state would become a terrorist
irredentist state with disastrous repercussions for Israel. Official support for
such a state by the U.S., Europe and Israel represents nothing
less than a loss of sanity by the leaders of these countries.
Over the years, Resolution 242 became a
cornerstone document in international diplomacy seeking to bring about a just
and lasting peace between Israel and the Arab states.
It has been cited in all the major documents drawn up for this purpose ever
since November 1967, such as the Camp David Framework Peace Agreement of
September 17, 1978, the Egypt-Israel Peace Treaty of March 26, 1979, the
Israel-PLO Declaration of Principles of August 20 and September 13, 1993,
and, as already noted, the Road Map Peace Plan announced by the U.S.
Department of State on April 30, 2003. Resolution 242 is essentially a
"land for peace" document or a new, updated U.N. Partition Plan
which works against Israel's best interests. It
represents nothing less than a pathway to the destruction of the Jewish State
if implemented according to the official interpretation by the U.S. State
Department and all the Presidents who have parroted that interpretation.
Ironically, Israel, through its official spokesmen, also acts as if it was
beneficial and essential for bringing an end to Arab hostility to the
existence of the Jewish State in the Middle East, not appreciating the great
damage it has already caused to Israel's legal case in the eyes of the world
by urging Israeli withdrawal from its ancestral lands that are also vital for
its overall security. If Israel itself agrees to withdraw
from these lands that historically and legally belong to it, it is not
surprising that almost all countries in the world now demand that Israel implement a full or
nearly full withdrawal to achieve "peace". Israel is bringing upon
itself the disaster that would be caused by carrying out this kind of
withdrawal by initially accepting Resolution 242, when it should not have
done so, and then by making it an integral part of all subsequent
"peace" proposals or documents with the Arab world. The only way to
end this ongoing noxious "peace process" that terminates Israel's
legal rights to the so-called "occupied territories" is to denounce
formally once and for all the deleterious "land for peace" formula
as exemplified by Resolution 242.
UNITED NATIONS SECURITY
COUNCIL RESOLUTION NO. 242 OF NOVEMBER
22, 1967
STATING THE PRINCIPLES
OF A JUST AND LASTING PEACE IN THE MIDDLE EAST
The Security Council,
Expressing its continuing concern with the
grave situation in the Middle East, Emphasizing the inadmissibility of the
acquisition of territory by war and the need to work for a just and lasting
peace in which every State in the area can live in security,
Emphasizing further that all Member States in their acceptance of the Charter
of the United Nations have undertaken a commitment to act in accordance with
Article 2 of the Charter,
1.
Affirms that the fulfillment of Charter principles requires the establishment
of a just and lasting peace in the Middle East which should include
the application of both the following principles:
(a)
Withdrawal of Israeli armed forces from territories occupied in the recent
conflict;
(b) Termination of all
claims or states of belligerency and respect for and acknowledgement of the
sovereignty, territorial integrity and political independence of every State
in the area and their right to live in peace within secure and recognized
boundaries free from threats or acts of force;
2. Affirms further the
necessity
(1) For
guaranteeing freedom of navigation through international waterways in the
area;
(2) For achieving a
just settlement of the refugee problem;
(3) For guaranteeing
the territorial inviolability and political independence of every State in
the area, through measures including the establishment of demilitarized
zones;
3. Requests the
Secretary-General to designate a Special Representative to proceed to the
Middle East to establish and maintain contacts with the States concerned in
order to promote agreement and assist efforts to achieve a peaceful and
accepted settlement in accordance with the provisions and principles in this
resolution;
4. Requests the
Secretary-General to report to the Security Council on the progress of the
efforts of the Special Representative as soon as possible.
Adopted unanimously at
the 1382nd meeting.
|
APPLYING CONSTITUTIONAL LAW TO THE 1967
LIBERATION OF JUDEA, SAMARIA AND GAZA (BIBLICAL ISRAEL)
by Howard Grief
The five letters
presented in the enclosed booklet tell a story of utmost national
significance, about which few have any true knowledge. It is a historical
fact that ever since June 7, 1967, when the IDF overran Judea,
Samaria and Gaza in the Six-Day War, we have wrongly applied international
law to these repossessed areas of the Land of Israel. This resulted from a deliberate National Unity
Government decision that clashed with existing Israeli constitutional law and
with the practice followed in 1948 when other areas of the Land of Israel
were repossessed by the Israeli armed forces. The law wrongly applied at the
close of the Six-Day War was international law as embodied in the Hague Rules
of 1907 and the Fourth Geneva Convention of 1949, both codices being
classified as laws of war, when Israeli constitutional law at the time required the application of the law of the
State of Israel to Judea, Samaria and Gaza.
This
mis-application of law, a step taken by the Eshkol Government on the basis of
erroneous legal advice proffered by the then Military Advocate-General and
future President of the Supreme Court, Mr. Justice Meir Shamgar, who was
responsible for setting up the military administration for the reconquered
areas of the Land of Israel, is the subject-matter of the five letters
published here. It resulted in the pernicious Occupation Myth and provided
our enemies with an enormous propaganda victory in the eyes of the world, for
the term "occupation" implied that Israel had taken over by war the
land of another people to which it had no right under international law, an
absolutely false implication. This widespread myth then received the stamp of
approval from the Supreme Court of Israel, especially from Mr. Justice Moshe
Landau in the Eilon Moreh case and from recently retired President Aharon
Barak in cases dealing with Israel's security fence and the implementation of
the Sharon Disengagement Plan.
The author hopes
that the publication of his letters to Mr. Justice Meir Shamgar, the
originator of the international law thesis that gave direct rise to the
Occupation Myth, despite Shamgar's intentions, will enlighten the public
about the violation of law committed 40 years ago, the effects of which are
felt to this very day. Recognition of this 1967 error is a vital first step
in an attempt to undo the colossal legal damage done to the rights of the
People and State of Israel.
Howard
Grief
Jerusalem
May 2007
|
PRESENTING THE TERMS OF THE ARGUMENT
Jerusalem
11 Heshvan 5766 -- November 13, 2005
The
Honourable Mr. Justice Meir Shamgar
Rehov Shahar 12
Jerusalem 96263
Dear
Mr. Justice Shamgar,
Please
find enclosed a copy of a letter dated November 2, 2005 I have sent to Mr.
Eliezer Dembitz, in which I amplify the point why you were, in my opinion, in
breach of the existing constitutional law when you conceived the plan in the
early 1960s to apply international law, instead of Israeli law, to
re-conquered areas of the Land of Israel and the Jewish National Home that
were placed under military government.
Any
reply you may wish to make would be most welcome and instructive.
Yours truly,
Howard Grief
|
Jerusalem
30 Tishri, 5766 -- November 2, 2005
Mr.
Eliezer Dembitz, Attorney
Jerusalem
Dear
Eliezer,
Concerning
our two conversations on October 31st and November 1st, 2005, I firmly adhere
to my view that on June 7, 1967, when Brigadier-General Herzog issued
Proclamations Numbers 1 and 2 (Proclamation on the Assumption of Power by the
IDF in the Region of the West Bank; Proclamation on Law and Administration),
there was a clear violation of the existing constitutional law, as of that
date. Section 11B of the Law and Administration Ordinance was not enacted until
three weeks later, on June 27, 1967.
The
existing relevant constitutional law that was in force on June 7, 1967,
consisted of the Area of Jurisdiction and Powers Ordinance of September 16,
1948, made retroactive to May 15, 1948, and the two Proclamations issued
thereunder by the Ben-Gurion Government, namely, the Israel Defense Forces
Government in the Land of Israel (hereafter the Land of Israel Proclamation) of
September 2, 1948, made retroactive to May 15, 1948, as well as the Israel Defense
Forces Government in Jerusalem of August 2, 1948 (which I call the Jerusalem
Proclamation), made retroactive to May 15, 1948.
When Israel liberated Judea and Samaria on June 7, 1967, and Gaza on June 6, 1967, the 1948 Ordinance and the two Proclamations
associated with it required the application of Israeli law, not international
law. The application of Israeli law was required even though the regions were
thenceforth governed by a military government, exactly as happened in 1948.
Thus, when Advocate-General Meir Shamgar in the early 1960s decided long before
the outbreak of the Six-Day War to apply international law concerning what he
called "enemy territory" (a strange non-Jewish and non-Zionist
reference to integral parts of the Land of Israel) if and when Israel acquired
such territory, he was in breach of the existing constitutional law.
Two
questions arise concerning Shamgar's decision to apply international law
instead of Israeli law in the early 1960s, at a time when David Ben-Gurion was
still Prime Minister:
1. Who gave Shamgar the right to violate the
existing constitutional law on the re-acquisition of areas of the Land of Israel in Arab hands?
2. Which government person or persons could
possibly have had the authority to back Shamgar in making this decision to
violate the existing constitutional law?
In the
period from 1961 until June 1963, i.e., the early sixties, when Shamgar
conceived his illegal plan, there was no Eshkol Government, no need to worry
about demography, no pressure on Israel to apply Jordanian law to Judea and
Samaria, which under Jordanian law was called the West Bank, a name
subsequently changed by the Menahem Begin Government to Judea and Samaria. The
only obligation then incumbent upon Shamgar was to obey the existing constitutional
law.
However,
Shamgar acted otherwise, contrary to the vaunted principle of the Rule of Law.
He admitted in the book he edited, entitled "Military Government in the
Territories Administered by Israel 1967-1980, The Legal Aspects" and
published in 1982, that he wrote a comprehensive vade mecum, the Manual for the Military Advocate in
Military Government, in the early sixties, when he was Military
Advocate-General (1961-1968) in which he detailed the laws of war which he
decided should be followed in the next war that he surmised would break out
with the surrounding Arab states. His plan was then implemented several years
later during and after the Six-Day War. For confirmation of this fact, I refer
you to Shamgar's footnotes, numbers 25, 27 and 28 of his article in the
aforementioned book, which he entitled "Legal Concepts and Problems of the
Israeli Military Government -- The Initial Stage", pages 13-60. These
footnotes are found on pages 25 and 27 of his article and are enclosed
herewith.
As a
direct result of Shamgar's conception adopted by the Eshkol Government in June
1967, every person in the world today outside Israel and indeed a very
substantial number of Israel's own population call Judea, Samaria and, until
very recently, Gaza "occupied territories", when they are in truth
integral parts of the Land of Israel and the Jewish National Home under both
Israeli constitutional law and international law, as I have made crystal clear
in several past articles I have written on the subject and in my forthcoming
book, The Legal Foundation and
Borders of Israel under International Law. Shamgar's conception, which
would never have seen the light of day had he abided by the prevailing
constitutional law dating back to Ben-Gurion's day, as was expected of him, has
backfired in the most hideous way: Israel is today seen as a violator of
so-called international law and as an occupying power that has taken over
(stolen!) another nation's patrimony, the so-called "Palestinians", a
term that was formerly reserved for the Jews of the Yishuv (1920-1948) living
in Mandatory Palestine, and not for a fake nation that has no right to this
designation. The entire judicial travesty that Shamgar created has now been
given the imprimatur of truth by none other than Justice Aharon Barak,
President of the Supreme Court, in his recent decisions on Israel's security fence. Barak constantly repeats
the theme in his judgments that Judea,
Samaria and Gaza are governed by the rules of belligerent
occupation under international law, but refrains in a cagey, deliberate manner
from actually calling them "occupied territory", to avoid criticism
or bring undue attention to what he has farcically and incompetently done.
As to
Deputy-President Justice Moshe Landau's decision in the 1979 case of Dwaikat v
Government of Israel (the Elon Moreh case), Landau misstated the legal norm
that was then applicable, in June 1967. In fact, he mixed up two separate legal
norms, one dealing with the imposition of Military Government over re-acquired
areas of the Land of Israel and one dealing with the application of Israeli law and
sovereignty to those areas. The norm of Military Government was indeed applied,
both in 1948 and in 1967, but the other norm, that of Israeli law applying to
the IDF-held areas was disregarded in 1967, in violation of the existing
constitutional law, and replaced by the application of international law. It is
no credit to Landau that at a critical time in the settlement of the liberated
territories of the Land of Israel he continued and endorsed the outrageous violation of law
initiated over a decade and a half earlier by then-Advocate-General Shamgar,
that has since placed Israel in an untenable position making it a
target for worldwide censure.
You
have received two recent articles I wrote on the subject discussed here, one
dealing with the "Origin of the Occupation Myth" (published in Hebrew
in the September 2005 issue of Nativ)
and the other entitled "David Ben-Gurion's Forgotten 1948 Land of Israel
Proclamation for the Annexation of Judea and Samaria" (scheduled for
future publication). To refresh your memory and recapitulate what should have
been legally done on June 7, 1967, after the liberation of Judea and Samaria
from enemy occupation, instead of what was in fact illegally done by the Eshkol
Government, acting undoubtedly on the proffered advice of Meir Shamgar, Zvi
Terlo and others, I summarize the matter as follows:
1. In the first proclamation prepared by the
Military Advocate's Unit for Judea and Samaria formally issued by Haim Herzog,
the Commander of the Israel Defense Forces in this region, dated June 7, 1967,
it was announced to the inhabitants living there that the Israel Defense Forces
have "entered the region and assumed control", meaning that they have
set up a military government there. The establishment of military government
was in accordance with the 1948 Land of Israel Proclamation and the Area of Jurisdiction and Powers
Ordinance, except that it was supposed to have been issued by the Minister of
Defense (Moshe Dayan), not by the Military Commander.
2. In the second proclamation issued by
Herzog, entitled "Proclamation on Law and Administration", the region
over which military government was established was defined in the proclamation as the West Bank, a reference to what the Hashemite Kingdom
of Jordan called Judea and Samaria. In defining this area as the West Bank, Herzog was acting unknowingly in
accordance with the requirement of the Area of Jurisdiction and Powers
Ordinance that said that the IDF held area must be defined by proclamation before the Ordinance
could be implemented. In contrast to the 1967 Proclamation, the 1948 Land of Israel Proclamation did the defining by drawing red lines on an
illustrative map of the Land of Israel, signed and dated by the Minister of
Defense, that accompanied the original proclamation, showing the area held by
the IDF. Without making use of any map, Herzog's proclamation simply described
sparingly the area that was now under IDF control -- the "Region of the West Bank", which in any event was already a
well-defined and well-known area that needed no particular delineation on a map
to identify it. In both cases, defining this area was not discretionary, but
obligatory, otherwise no one would have known that the IDF was in complete control
of the area establishing a military government that replaced the previous
government under Jordanian rule. Without such a proclamation, chaos and
confusion, both at home and abroad, would have prevailed.
It is true that international law does not absolutely require the
issuance of a proclamation, as soon as the territory of a foreign state is
occupied by hostile forces, though it is customary for this to be done.
However, the situation is entirely different under Israeli constitutional law
for areas of the Land of Israel liberated by the Israel Defense Forces that cannot be
labeled "occupied territories" under international law. The Area of
Jurisdiction and Powers Ordinance was enacted for the sole purpose of
recovering for the Jewish State those lands that had been recognized as
integral parts of the Jewish National Home under international law in 1920 and
that had always been considered the patrimony of the Jewish People under Jewish
law. If the IDF achieved this purpose in regard to various regions of the Land of Israel and no proclamation had been issued under
the aforesaid Ordinance, then its very purpose would have been defeated and the
law left with neither meaning nor effect. Moreover, if the Minister of Defense
did not issue a proclamation defining the IDF-held areas, this would have meant
that the Jewish People, represented by the State of Israel, had no sovereign
right to the recovered areas and would have been required in due course to
restore these areas to the Arab states that had illegally occupied them in
1948, a requirement that negated the underlying assumption of the Ordinance
that they belonged to the Jewish People. To avoid these consequences, it was
therefore incumbent upon the Minister of Defense to issue a proclamation under
the Ordinance to define the area of the Land of Israel taken over by the IDF as soon as this
occurred. To underscore this point, this was the way the Ordinance was actually
interpreted and implemented throughout the War of Independence. It seems
logical to conclude that it was the obligatory nature of the Ordinance that
prompted the Eshkol Government in 1967, shortly after the end of the Six-Day
War, to devise an alternative law (Section 11B of the Law and Administration
Ordinance), to give the Government a choice in deciding whether or not to
incorporate into the State the areas of the Land of Israel liberated in that
war.
3. Once the foregoing proclamations
establishing military government in the West Bank region had been issued by
Herzog on June 7, 1967, both the Area of Jurisdiction and Powers Ordinance and
the Land of Israel Proclamation required the application of the law of Israel
to the IDF-held region, which meant its incorporation into the State of Israel.
Instead, the Proclamation on Law and Administration approved by the Eshkol
Government and issued under Herzog's Command as Proclamation No. 2 applied the
local law of Jordan then in force in the West Bank, in accordance with Article 43 of the Hague Regulations, but absolutely contrary to
Israeli law, as already noted. Thus, the wrong source of law was used (Article
43 of the Hague Regulations, rather than the provisions of the Area of
Jurisdiction and Powers Ordinance) and the wrong law applied to the region held
by the IDF (Jordanian law rather than the corpus of Israeli law). The
Government chose this short-sighted course to keep the option of
"peace" open and to avoid increasing the Arab population of the
State, which were considerations outside the realm of law and could have been
resolved by other means. The non-observance of the existing constitutional law
was the folly and root of all the trouble we face today in the battle to
preserve Jewish rights to the Land of Israel under the Rule of Law. Had the Eshkol
Government done what it was legally obligated to do, no one, apart from the
Arab states and their close supporters, would have falsely dared call Judea and
Samaria "occupied territories" subject, after the end of active
hostilities, to the laws of war embodied principally in the Hague Regulations
and the Fourth Geneva Convention. The folly of what was done in June 1967 has
been accepted by the Supreme Court and its underlying raison d'etre has never -- until recently, when
Justice Edmond Levi dissented in the case dealing with the constitutionality of
the Disengagement Implementation Law -- been challenged by anyone in Israel's legal Establishment, based on the merits
of the case.
It is
past time to denounce and renounce what Shamgar and Landau and now Barak have
done to the legal infrastructure that was created in 1948 by the Ben-Gurion
Government regarding the absorption of integral areas of the Land of Israel lying outside the de facto boundaries of the State that were
re-conquered by the IDF. We await a new Government that will overturn the
erroneous judicial decisions rendered by our esteemed jurists that clearly
contradicted Israel's rights to Judea, Samaria and Gaza and other regions of the Land of Israel.
Sincerely,
Howard
Copies
of this letter will be sent to:
1.Professor
Ya'akov Meron
2.Justice (Ret.) Meir Shamgar
3.Justice (Ret.) Moshe Landau
4.Justice Aharon Barak
5.Justice Edmond Levi
6.Military Judge (Ret.) Baruch Koroth
7.Professor Yuval Ne'eman
November 2, 2006. LETTER OCCASIONED BY THE PROPOSED
BUILDING OF A JEWISH CEMETERY ON THE MOUNT OF OLIVES
Howard
Grief
Attorney and Notary
13/2 David Goitein St.,
Pisgat Ze'ev Mizrah, Jerusalem 97782 Israel
Tel. (Fax) : 972-2-656-0085
Jerusalem
11 Heshvan, 5767 -- November 2, 2006
Mr.
Justice Meir Shamgar,
Shahar 12
96263 Jerusalem
Dear
Mr. Justice Shamgar,
I
enclose herewith for your attention and perusal the letter and attached
documents I have sent to the Jerusalem
Post columnist, Mrs. Sarah
Honig, concerning the proposed building of a Jewish cemetery on state land on
the Mount of Olives, situated in the region of Judea and Samaria, the
realization of which was prevented by then-State Attorney Dorit Beinisch, based
on an unfounded legal opinion submitted by Attorney Meni Mazuz, prior to his
being appointed Attorney-General.
This matter
relates directly to your original plan in the early 1960's, long before the
Six-Day War erupted, to treat any area beyond the armistice borders of the
State as occupied territory governed by the laws of warfare. The Eshkol
Government of National Unity accepted your plan in 1967, when Judea and Samaria
were restored to the Jewish People during the Six-Day War, and invoked the
Hague Rules in regard to this region. It was your advice to the Government in
1967, when you were Military Advocate-General, which created the world-wide
belief that Israel was occupying the land of another country, when in truth
this land (i.e., Judea and Samaria) was the sovereign patrimony of the Jewish
People under both Israeli constitutional law and international law, that devolved
upon the State of Israel upon its establishment. What you did has haunted Israel ever since and started the great divide
between those supporting the concept of the Land of Israel and those opposing it.
When
you launched your plan in the early 1960's, were you not aware that Israel's
first prime minister, David Ben Gurion, aided by Pinchas Rosen, had set up a
constitutional structure for reclaiming all parts of the Land of Israel that
had earlier been transferred or otherwise lost to neighboring Arab states? For
that purpose Ben-Gurion issued two separate proclamations in 1948, one
pertaining to Jerusalem and the other for the rest of the Land of Israel that required the immediate incorporation
into the borders of the State of any area of the Land of Israel conquered and effectively held by the
Israel Defense Forces. These two proclamations were officially called:
1. shilton tsva-hagana le-yisrael
biyrushalayim, minshar mispar 1, nittan ha-yom, kaf-vav be-tammuz 5708 -- Israel Defense Forces Government in Jerusalem, Proclamation No. 1.
2. shilton tsva-hagana le-yisrael
be-eretz-yisrael, nittan ha-yom, kaf-het be-av 5708 -- Israel Defense Forces Government in the Land of Israel, Proclamation No.1 (The Land of Israel
Proclamation).
This is
how places such as Nahariya, Nazareth, Lod, Ramle, Beersheba, Ashdod, Ashkelon, etc. became part and parcel of the State of Israel in 1948, even
though they lay outside the boundaries of the Jewish State recommended under
the United Nations Partition Plan. No special proclamation was needed for these
places, for they all came under the scope and purview of the open-ended Land of Israel Proclamation. This Proclamation was still in force in
1967 and applied directly to the repossessed region of Judea and Samaria, as well as that of Gaza, the Golan and even Sinai. You chose to
ignore this proclamation and, instead of advising the Government to apply the
law of Israel to the redeemed territories in accordance with Ben-Gurion's Land
of Israel Proclamation, you did the very opposite of what was legally required
in the circumstances and advised the application of foreign law in accordance
with Articles 42 and 43 of the Hague Rules, but contrary to Israeli
constitutional law. This advice was wrong, inappropriate and illegal. You have
much to answer for in ignoring Ben-Gurion's Land of Israel Proclamation that applied to the new situation created
by the Six-Day War, just as it had applied previously to the situation created
by the War of Liberation. The damage you have caused to Israel's legal position
in regard to the redeemed regions of the Land of Israel is incalculable and
reverberates to this very day in the minds of Israeli and foreign leaders, as
well as the world's press which maliciously depict Israel as an Occupying Power
of so-called "Arab land".
The day
is late to undo the damage you chiefly are responsible for, but we must try to
save what is left in our possession of patrimonial Jewish lands recaptured in
1967. You would be able to help to save what can still be saved if you were to
issue a public statement restating your position on the legal status of Judea, Samaria and Gaza in conformity with Ben-Gurion's Land of Israel Proclamation. I, as a former legal adviser on matters
affecting Eretz-Israel to the late Professor Yuval Ne'eman whom you knew, and
as a friend of the great jurist Ya'akov Meron whom you know (he is presently
very ill), and as a friend of retired Military Court Justice, Eliezer Dembitz
whom you also know, ask you to consider doing this. However, I make this appeal
to you on my own initiative, without prompting or encouragement from any
person.
A
restatement by you, as I recommend, would do much to change public perceptions,
particularly in Israel, of the true legal status of Judea and Samaria.
Yours
truly,
Howard Grief, Attorney
November 22, 2006. WHY DID SHAMGAR GIVE SPECIAL
COURSES CONTRADICTING ISRAELI LAW?
Jerusalem
1 Kislev, 5767 -- November 22, 2006
Mr.
Meir Shamgar,
President (Retired) of the Supreme Court,
Rehov Shahar 12
96263 Jerusalem
Dear Mr.
Justice Shamgar,
I thank
you for acknowledging and replying in the briefest terms to my letter of November
2, 2006.
I do
not find it instructive when you state that I wrote you:
(1)without a total
knowledge of the facts;
(2)without bothering to check the information beforehand.
It
would have been more enlightening for me had you informed me what the true
facts were in regard to the legal status of Judea and Samaria and the rest of
the territories restored to the Jewish People in June 1967.
I read
your article entitled "Legal Concepts and Problems of the Israeli Military
Government -- The Initial Stage" in the book edited by you called Military Government in the
Territories Administered by Israel, 1967-1980, the Legal Aspects, Volume 1,
published in a reprint edition, 1988, by the Hebrew University of Jerusalem --
Faculty of Law and the Harry Sacher Institute for Legislative Research and
Comparative Law.
In your
article, you confirm the fact that everything was planned in advance as to what
must be done when the IDF entered Judea and Samaria and issued a proclamation for the establishment of the Military
Government in the West
Bank, the name of
which was subsequently changed to Judea and Samaria. The planning for this eventuality took final shape in the special
courses you gave for the Military Advocate's Corps that taught the laws of war
to those who attended your courses. All the material necessary for the
performance of duties by officers of the platoon (regular and reserve) was
contained in a comprehensive vade
mecum, known as the Manual
for the Military Advocate in Military Government, written and published in
the early sixties by yourself, when serving as the Military Advocate General.
This Manual, containing
military instructions and guidelines to be applied to any territory conquered
by the IDF, was re-edited and enlarged by you as a result of the courses you
gave to the officers of the Military Advocate's Corps. All of the foregoing
information was gleaned from your article. That explains why the Israeli
Military Government in Judea
and Samaria invoked the norms and principles of
international law to this single region, rather than Israeli law, as was done
by Prime Minister and Defense Minister, David Ben-Gurion, in 1948 when other
areas of the Land of Israel were conquered by the Defense Forces of Israel.
The
question to be answered is: why did you give special courses teaching the laws
of war when Ben-Gurion had promulgated a law and a proclamation in 1948 to
apply the law of the State whenever areas of the Land of Israel were re-possessed by the IDF? As I asked
you in my letter of November 2, 2006, were you not aware of this law and
proclamation, which were still in force when you were giving your courses? You
never answered this question and it still requires an answer.
Do you
think that in applying the norms and principles of international law, the
Israeli Military Government set up upon your advice did the right thing?
Ben-Gurion, too, set up a military government in 1948 for areas of the Land of
Israel conquered beyond the UN Partition lines of November 29, 1947, but he
never applied the norms and principles of international law that were applied
in 1967.
I have
studied the facts as they have been revealed by you in your article. I do not
know what other facts you are referring to when you say I lack total knowledge
of the situation in trying to understand what happened in 1967. If you would
kindly enlighten me about those facts, I would be very grateful. Of course, if
you truly believed in 1967 that the region of Judea and Samaria had to be governed under the rules of
belligerent occupation, no further explanation is needed!
If you
held the opinion in 1967 that the supposed expectation of Arab demography
overwhelming the Jewish population of Israel and the idea of possible peace
negotiations with the neighboring enemy Arab states prevented absolutely the
annexation of Judea, Samaria and Gaza to the State, then I can fully comprehend
what motivated you in advising the application of the laws of war to these two
regions, instead of Israeli law, as Ben-Gurion did not hesitate to do in 1948.
Of course, I assume that you advised the Eshkol National Unity Government to
adopt this course of action, because it corresponded perfectly with the plan
that you formulated in the early sixties. However, your plan violated existing
Israeli constitutional law (the Area of Jurisdiction and Powers Ordinance;
Ben-Gurion's Proclamation of September 2, 1948) and therefore should have been discarded.
If I am mistaken about this central point and your personal role in this
matter, I stand to be corrected and would very much appreciate your response.
Yours
truly,
Howard Grief
January 9, 2007. WHY HAGUE RULES DID NOT APPLY TO
THE TERRITORY REPOSSESSED IN 1967
Jerusalem
19 Tevet, 5767 -- January 9, 2007
Mr.
Justice Meir Shamgar,
President (Retired) of the Supreme Court,
Rehov Shahar 12
96263 Jerusalem
Dear
Mr. Justice Shamgar,
I
acknowledge, with many thanks, your letter dated December 1, 2006 explaining in
more detail your legal perspective on what had to be done in June 1967
following Israel's victory in the Six-Day War when the IDF took possession of
various areas of the Land of Israel that were not part of the State of Israel.
For
purposes of this letter, I have re-read your article entitled "Legal
Concepts and Problems of the Israeli Military Government -- The Initial
Stage", which only had the effect of confirming what I originally thought:
your great responsibility in introducing to Judea and Samaria and the rest of
the held or re-possessed territories the norms of international law pertaining
to the laws of war embodied in the Hague Rules and the Fourth Geneva
Convention, when this was completely unnecessary and contrary to existing
Israeli constitutional law.
Inasmuch
as you have divided your answer to me into several paragraphs to express
various points of substance, I will follow the same format in presenting my
reply:
1) In
paragraph aleph, you state
that "political decisions in a democratic state are not taken by a
military body but by the Government". In the context of your letter, this
appears to be a misleading statement because the application of international
law to Judea and Samaria on June 7, 1967 was not only a "political
decision", i.e., a matter of policy, but first and foremost a legal
decision, since there existed at the time two constitutional laws (apart from
the very important Law of Return) that directly governed the situation and that
had to be complied with: the statutory law called the Area of Jurisdiction and
Powers Ordinance (hereafter: Ben-Gurion's
law) and the non-statutory proclamation issued under its umbrella by means
of retroactivity, known as the Israel Defense Forces Government in the Land of
Israel Proclamation (hereafter:the Land of Israel Proclamation or, alternatively, Ben-Gurion's Proclamation) of
September 2, 1948. You state in your article (p. 46 of the First Reprint
edition, 1988), that "pending a political solution", the norms that
were applied to the areas not incorporated into Israel were drawn from the rules of international
law. This was the wrong thing to do, because it was the existing constitutional
law that required the application of Israeli law to those areas, and not a
political decision, as you claim in your letter. Pre-existing law always
supercedes policy, and is required to be implemented under the "Rule of
Law" principle. The norms of international law were not applicable to the
situation because those norms were based on the laws of belligerent occupation
that were irrelevant in regard to liberated Jewish territories that were
integral parts of the Land of Israel and the Jewish National Home.
Applying
the Hague Rules to Judea and Samaria in June 1967 meant applying the foreign
law of Jordan. The National Unity Government of Levi
Eshkol acted illegally in following this course, in light of Ben-Gurion's law
and proclamation, but it probably would not have done so, had the Government
been given the proper legal advice by the highest legal officials in the
Ministry of Justice and the Ministry of Defense. Your personal role in all of
this appears critical and extensive. As Military Advocate-General from 1961 to
1968, that comes under the aegis of the Ministry of Defense, you gave special
courses to the legal officers of the Military Advocate's Corps which consisted,
after the Six-Day War, of various units attached to all regional headquarters
of the military government that were set up in Judea and Samaria, Northern
Sinai and Gaza, Central and Southern Sinai and, finally, the Golan Heights. As
stated in your article, the Military Advocate's Unit for Judea and Samaria was organized in three platoons under your
direct command. The express function of the Military Advocate's Unit for Judea and Samaria was to ensure that the military government
of this region conformed to the norms of international law. According to your
own words (p. 44), you
"repeatedly
admonished the Israeli legal authorities serving in the territories not to be
content with the minimum standards laid down by the rules of warfare on land,
but to be alert in ensuring that in any situation not foreseen or not provided
for in the customary rules [of international law, i.e., the Hague Regulations]
the solutions applied should accord with the consistent safeguarding of the
rule of law."
Instead
of admonishing the platoon officers to apply international law as it pertains
to the laws of warfare in Judea
and Samaria, after the re-capture of the region, you
should have admonished them to apply Israeli law in the redeemed Jewish lands
once the hostilities ceased and the region was in the effective possession of
the IDF.
Further
evidence of your personal role in advising the application of the norms of
international law to the redeemed territories was the fact that under your
direction, the legal officers of the platoons were provided with "movable
emergency kits" that contained precedents and forms, guidelines and
instructions for implementing these norms of international law. The kit
contained the manual or vade mecum, which they carried about detailing what
legally had to be done in administering the military government of a particular
region. This manual or ready-reference aid was written and re-edited by you
long before the outbreak of the Six-Day War that required the officers of the
Military Advocate's Corps to advise the Military Commander of the Region to
implement the Hague Regulations and the humanitarian norms or provisions of the
Fourth Geneva Convention. I quote directly from your article on this point (p.
31):
"The Manual
included the full text of the vital initial enactments [of military
government], in Hebrew and Arabic (e.g., Proclamations concerning the
Commencement of Occupation, concerning Law and Order and concerning the Entry
into Force of the Security Code; furthermore, different Orders relating to
security provisions, essential services, jurisdiction in relation to ordinary
criminal offences, etc.) [brackets in the original].
The
above-mentioned "Proclamations concerning the Commencement of
Occupation" -- your actual words -- were, according to your article,
prepared by the Military Advocate's Unit on the entry of the IDF into the
region originally denoted as the "West Bank" (p. 24). This Unit was under the
direct command of the Military Advocate-General, i.e., yourself (p. 25). This
confirms your personal role in overseeing and introducing Proclamation No. 1 on
the Assumption of Power by the Israel Defense Forces in Judea and Samaria, issued on June 7, 1967 in the name of the Commander of Forces of
the Israel Defense Army, General Haim Herzog, as well as Proclamation No. 2 on
Law and Administration. You were therefore instrumental in advising and
convincing the Government of Israel in June 1967 to apply the norms of
international law to all of the territories the IDF entered and took possession
of. Thanks largely to your plan and program, these territories became known to
almost everyone in the world as "occupied territories" instead of
what they actually represented, the restored territories and patrimony of the
Jewish People as originally envisaged by international law and embodied in
various documents subscribed to by the Principal Allied Powers in 1920 and
1922. Your plan and program were implemented by the Government not as a matter
of law, but as a matter of policy, and has haunted the State of Israel ever
since, causing it incalculable damage. This result was brought about by what
appears to be your fixation on applying the norms of international law to
redeemed Jewish territories, that contradicted Ben-Gurion's law and
proclamation. The Government took a political decision, it is true, but it was
not taken in a vacuum. As the evidence shows, i.e., the special courses you
gave, the movable emergency kit with all the material it contained relating to
international law, and your own articles on the subject, the government
decision was based largely on faulty legal advice that was not only terribly
wrong but violated the existing Israeli constitutional law, as noted above.
2) As
regards your allegation in paragraph beth that I overlooked section 11B of the
Law and Administration Ordinance (hereafter: section 11B), as well as section
8A(a) of the Municipalities Ordinance, it brought a smile to my lips for I
discussed these two laws in detail in a 1996 Petition to Annul the Interim
Agreement, submitted on behalf of eight Petitioners to the Supreme Court of
Israel (HCJ 3414/96). This Petition was subsequently published in English in
booklet form by the Ariel Center for Policy Research and I am forwarding
you a copy with this letter for your perusal. At the hearing, Judge Mishael
Cheshin informed my colleague, Att. David Heimowitz, that the Petition was too
long to be adjudicated and should be re-submitted in a more concise version, a
request that I accepted. A shorter version was then filed with the Court, but
to no avail, as it was dismissed by a panel of three judges on the ground that
it expressed a "political position". This was the excuse the Court,
including yourself, formulated to avoid judging violations of specific laws but
which also involved the "peace policies" undertaken by the Government
of Israel. The 1995 Interim Agreement with the PLO was replete with
illegalities, which I detailed in the Petition and in a subsequent shorter
version, but the Court refused to consider them and decide the merits of the
case, though it now rushes in to adjudicate military and security matters it
should rightfully abstain from judging. Everything is justiciable, it seems,
except the untouchable "peace process".
In my letters
to you, I did not discuss section 11B and the amended provision of the
Municipalities Ordinance that you refer to, for the simple reason that they did not exist on June 7, 1967 when international law was illegally
applied to Judea and Samaria. It was only, as you point out, on June
27, 1967, three
weeks after the entry of the IDF into the region, that they were enacted by the
Knesset. These laws thus have no relevance in replying to the question why
Ben-Gurion's law and proclamation, which were in force on June 7,
1967, were never
invoked. Had that law and proclamation been duly adhered to by the Government,
there would have been no need to enact section 11B. The enactment of the new
law was completely unnecessary and superfluous. I also wonder who the people
were who advised the Government to enact section 11B, rather than to enforce
the existing laws that were Ben-Gurion's legacy.
3) I am
very puzzled by what seems to be the unfounded distinction you make in
paragraph gimmel between the purpose of the Land of
Israel Proclamation (which I have also called "Ben-Gurion's
Proclamation" in this letter) -- incidentally, the date of its publication
in the Official Gazette is September 3, 1948, and not September 13 as your
typist wrote -- and the purpose of section 11B, as well as the distinction you
make in regard to Ben-Gurion's law (i.e., the Area of Jurisdiction and Powers
Ordinance) between the territory included in the State of Israel and the
territories held by the IDF. In all your articles, I do not find any mention of
the Land of Israel Proclamation, a fact which leads me to believe that you
were unaware of this proclamation at the time you gave your special courses to
the Military Advocate's Corps, beginning in the early 1960s. Unless you
explicitly tell me otherwise, I believe that you only much later gained
knowledge of Ben-Gurion's proclamation. Furthermore, had you known of this
proclamation in the 1960s, you would not, I believe, have advised the
application of the norms of international law in the event that areas of the
Land of Israel were re-possessed by the IDF in any future war, then as yet
unforeseen.
I do
not understand how you can say that the territory referred to in Ben-Gurion's
proclamation differs from the territory referred to in section 11B. The Land of Israel proclamation is to be read in conjunction
with Ben-Gurion's law. When the IDF took possession of areas in the Land of Israel in 1948 outside the UN Partition lines,
the held areas were joined to the State by applying the law of the State to
them. Hence the name given to Ben-Gurion's law: "Area of Jurisdiction and
Powers Ordinance" which extended the area of jurisdiction and powers of
the State to the newly possessed areas. There is no reason whatever to
differentiate the "held areas" added to the State under both the Land
of Israel Proclamation and Ben-Gurion' s law from the areas of the Land of
Israel re-conquered in the Six-Day War, both being part of the Land of Israel
and the Jewish National Home and both lying beyond the UN 1947 Partition lines.
Your distinction between two different kinds of territories, one relating to
Ben-Gurion's law and proclamation and the other to section 11B, never existed
at all.
While
there is no difference between the 1948 held-territories of Ben-Gurion's law
and the re-conquered Land of Israel territories of 1967 to which section 11B was meant to
apply, each of these laws can be characterized as laws of annexation in regard
to the Land of Israel. Yet there is a definite difference between the procedures
or methods used in applying the laws themselves. In the case of Ben-Gurion's
law, the decision to join the "held areas" to the State is made by
the Minister of Defense on behalf of the Government, while in the case of
section 11B, the decision is made not by one minister alone, but by the
Government as a collective body. Moreover, the principal difference is that
once the IDF effectively holds an area of the Land of Israel under Ben-Gurion's
law, it must indicate that fact in one of two ways: either (a) by marking the
held area in red on a map, accompanied by the signature of the Minister of
Defense and the date thereof; (b) by simply applying the law of the State to
the "held area", without the necessity of marking that area on a map.
In the case of section 11B, in contrast to Ben-Gurion's law, the Government has
a choice whether or not to issue an order to extend the law, jurisdiction and
administration of the State to any area of the Land of Israel repossessed by the IDF.
In
regard to the meaning of shetah
muhzak (or any variation
thereof) as used in both the Land of Israel Proclamation and Ben-Gurion's law
and the term shetah kavush,
I refer you to the legislative debate that took place on September 16, 1948
between the Minister of Justice Pinhas Rosen (then called Felix Rosenblueth)
and Zerah Wahrhaftig, of the Ha-Po'el Ha-Mizrahi party (later the National
Religious Party) -- see pp. 49-54 of the enclosed Petition to Annul the Interim
Agreement (see also "Proceedings of the Provisional State Council, Sitting
18, Sept. 16, 1948, pp. 7-8). Shetah
muhzak, before being corrupted by mis-translation, referred to an area of
the Land of Israel held or recovered by the IDF in 1948-1949,
that was located beyond the UN Partition lines or not included in the State
when it was proclaimed on May 14, 1948. Shetah
kavush, on the other hand, refers to "occupied territory" or
foreign territory under the sovereignty of another state and not part of the Land of Israel. In his great wisdom, the then-Minister of
Justice, Pinhas Rosen, created a subtle distinction between the two terms that
was unknown or almost unknown in international law, but that important
distinction was subsequently spoiled by the mis-translation of shetah muhzak into English, not as "held
territory" or "repossessed Land of Israel territory", but as
"occupied territory", thus making it synonymous with shetah kavush and eliminating the distinction
altogether. Had the Eshkol Government kept this very fine and vital distinction
(between shetah muhzak and shetah
kavush) in mind in June 1967 and had most people in Israel not called both
of them "occupied territory" and had
the government received proper legal advice, it would not have decided to
apply the norms of international law to the liberated Jewish territories of the
Land of Israel, but rather the law of the State of Israel, as Ben-Gurion under
Pinhas Rosen's advice so wisely did in 1948.
Regarding
your point that the map attached to the Land of Israel Proclamation indicated only Lod and Ramlah and did not
show other areas in the Land of Israel that were in possession of the IDF, this,
in my opinion, does not prove that Lod and Ramlah were the only areas to which
Ben-Gurion's proclamation applied. The Proclamation and map were only issued
and attached to each other on September 2, 1948. All areas captured by Jewish forces,
excluding Jerusalem, before this date, that were part of the Land of Israel but
outside the U.N. Partition lines, such as Jaffa (captured May 13, 1948), Acco
(captured May 17, 1948 after a Hagana onslaught that began 4 days earlier, that
gave Israel tentative control of Acco and caused most of its Arab inhabitants
to flee) and Nahariya in western Galilee (captured in May 1948 after the fall
of Acco), would not have been included on a map delineated in red, signed and
dated by the Defense Minister, when those areas had already become integral
parts of the State of Israel by the immediate application of Israeli law. It
would have been redundant to do so. Most of western and southern Galilee, destined
for the proposed Arab state under the UN Partition Plan, was taken by Jewish
forces between May and July 1948, including such places as Hanita and nearby
villages, as well as Yehi'am, Zippori (Sepphoris) and Nazareth. These areas,
located in the proposed Arab state, as also in the cases of Jaffa, Acco and
Nahariya, were all included in the State of Israel, not by marking their
location on a map as provided for in Ben-Gurion's proclamation, but, as already
noted, by applying the law of the State to them, as provided for in
Ben-Gurion's law. In this matter, due attention must be paid to the fact that
once Ben-Gurion's Proclamation was issued on September 2, 1948, it was
open-ended in nature and therefore applied to all areas -- apart from Jerusalem
and its environs -- of the Land of Israel then not part of the State of Israel,
without specifically naming these areas in compliance with Ben-Gurion's law
which required a proclamation to be issued to define the area of the Land of
Israel being held by the IDF.
Ben-Gurion's
proclamation also provided for supplementary maps for areas of the Land of
Israel held by the IDF after September 2, 1948 (see Article 1 of the
Proclamation as regards its Interpretation, and Article 5 dealing with the
validity of the Proclamation), a situation which would have applied to
Beersheba (captured Oct. 21, 1948), Ashkelon (Majdal -- captured in October
1948 from the Egyptian army), Ashdod (Isdud -- captured in October 1948 after
the Egyptian forces were cut off and the local Arabs left) and Eilat (Umm
Rashrash, taken by Israel on March 13, 1949, and originally included within the
UN Partition lines). Ben-Gurion's law and proclamation were definitely in force
on June 7, 1967, which meant that Judea and Samaria, Gaza, the Golan Heights
and the Sinai Peninsula (assuming it is part of the Land of Israel, as
Ben-Gurion believed in 1956), should have been automatically incorporated into
the State. That was the law, and that was not done. The Government of Israel
has violated the sacred "Rule of Law" ever since.
Incidentally,
I have twice written to the Ministry of Defense in Tel-Aviv to obtain the map
or maps referred to in Ben-Gurion's Proclamation of September 2, 1948. They sent me a copy of the map attached
to the Jerusalem Proclamation of August 2, 1948 but could not locate the map or maps
attached to the Land of Israel Proclamation of September 2, 1948. If you have the citation for obtaining
the latter map, I would greatly appreciate getting it from you, to enable me
obtain this map.
4)
There is no disagreement as far as paragraph daleth is concerned, relating to the
Jerusalem Proclamation of August 2, 1948, that was also promulgated by Prime
Minister and Defense Minister David Ben-Gurion.
5) In
paragraph heh you mention your position about the
inapplicability of the Fourth Geneva Convention. Though you hold this position
in theory, you as a judge -- and the Government as a matter of policy --
actually implemented the humanitarian provisions of the Fourth Geneva
Convention in practice, especially its penal provisions. There seems therefore
to be a great contradiction between what you profess to be the situation in law
and what you actually did in conforming to the Convention during your terms of
office as Military Advocate General, Attorney-General and Supreme Court
Justice. In fact, it would have served no purpose for you to give courses on
the Fourth Geneva Convention in anticipation of a possible war and also have
the Convention included in the movable emergency kit of each platoon officer in
the Military Advocate's Corps -- if you, as the superior in charge, did not
think that the Convention applied. Why prepare these legal officers regarding
the ins and outs of the Convention if it was inapplicable to the regions of the
Land of Israel? Your action in this regard seems to place
a heavy cloud over what you say in your letter.
You
were meticulous in assuring the rights of Arabs in the held or repossessed
territories and in urging the Government to grant them a right of appeal to the
Supreme Court, even though such rights have never been granted to enemy aliens
in the courts of other countries. You were so concerned with the observance of
the Geneva Convention de facto and applying the norms of international law, but
at the same time you did not express any special concern about preserving the Land of Israel for the benefit of the Jewish People.
Where was your empathy for the Jews who wished to re-establish vibrant Jewish
life in the areas of the Jewish National Home, the cradle of the Jewish nation?
Instead of showing such empathy, you applied international law which, for all
intents and purposes, viewed the land on which the Jews settled to be
"occupied Arab land" because the law of the previous ruler was still
in force -- in conformity with Article 43 of the Hague Rules and Article 64 of
the Fourth Geneva Convention -- the international law that you seem to have
proudly advised the Government to adopt when the IDF entered Judea and Samaria
and issued Military Proclamation No. 2.
To my
thinking, it should have been inconceivable or repugnant for you as a former
member of the underground movement in pre-State Israel, the Irgun Zvai Leumi,
who supposedly was not hindered by a ghetto mentality, to be so ready to honour
the Arabs of Judea and Samaria, who wanted nothing more than to destroy the
Jewish State, by gratuitously applying to them the norms of international law
so that they were thus able afterwards to protest vociferously the settling of
Jews in this region as being "illegal" and to denounce Israel's
so-called "occupation" of "their" land. By applying the
Convention to the local Arabs, they were also empowered to claim the status of
"protected persons" under the Convention, and this in turn allowed
the International Committee of the Red Cross and the hostile United Nations to
monitor their treatment and intervene in Israel's domestic affairs. Your judicial legacy,
as well as that of your colleagues, Justices Landau and Barak, is the
protection you accorded the Arabs of this region rather than upholding the
rights of the Jewish People in the whole of the Land of Israel. By urging the application of
international law to Judea
and Samaria, and then endorsing it as a judge, you
prevented the unification of the Land of Israel under de
facto Jewish sovereignty
insofar as Cisjordan is concerned.
These
are simple truths that you and your fellow justices on the Supreme Court should
be truly remorseful for. You undoubtedly and understandably do not like to hear
or read what I have to say on this subject, but this is the terrible end result
of what you and your colleagues on the bench caused the people of Israel and their country -- that embraces not
merely the State of Israel, but the wider Land of Israel.
6) In
paragraph vav of your letter, you seem to take
liberties with Ben-Gurion's view of retaining Judea and Samaria when you state that he expressed his
"clear opinion" in a television interview in the wake of the Six-Day
War. That "clear opinion" was that we should give up all the held
territories in return for peace, except for Jerusalem. This was not only Ben-Gurion's position
at the time, but that of most members of the Eshkol Government, weary of war
and expressing a great yearning for peace with the surrounding Arab countries
which were still intent on wiping Israel off the map, as you well noted in your
article. The Ben-Gurion quotation you cite was nothing more than a pro forma mantra or sacred incantation
equivalent to a daydream, that was prevalent among members and supporters of
the Labour Alignment after the end of the Six-Day War and before the Arab
Summit Conference held in Khartoum on September 1, 1967, which dispelled the
idea that the Arab states truly wanted peace with Israel.
Ben-Gurion
uttered this opinion when he was no longer active in public life and had
already begun to fall ill, according to what the late Professor Yuval Ne'eman,
who knew him well, told me. On other occasions, he expressed a diametrically
opposite opinion, once in 1937 and once again in 1956. In 1937, at the 20th
Zionist Congress (August 3-16, 1937, Zurich), he gave a speech at Basel in commemoration of the first Zionist
Congress which had taken place there in 1897, where he said in part:
No Jew is entitled
to give up the right of establishing (settling) the Jewish nation in the Land of Israel. No Jewish body has such power. Not even
all the Jews alive have the power to cede any piece of land or part of the
homeland. This is a right vouchsafed or reserved for the Jewish Nation
throughout all generations... Our right to the whole of this country is valid,
in force and endures forever.
In
1948, when Ben-Gurion became Prime Minister of the State of Israel, he provided
for the eventual expansion of the boundaries of the State to encompass all of
the Land of Israel by having the Provisional State Council
enact the Area of Jurisdiction and Powers Ordinance and by issuing the Land of Israel Proclamation. Ben-Gurion's strong stance on
Eretz-Israel in 1937 was thus followed by equally strong legislative action
when the Jewish State came into being.
On November
7, 1956,
Ben-Gurion delivered an address to the Knesset which is sometimes called his
"Third Kingdom of Israel" speech, although he did not use those
actual words. In that speech, coming after the capture of the Sinai Peninsula in a seven-day campaign code-named
Operation Kadesh, Ben-Gurion stated clearly and repeatedly that Israel had not attacked the land of Egypt. He did not consider Sinai to be a part of
Egypt and he intended to annex Sinai and Gaza to Israel, as well as the
adjoining islands of Yotvata (Tiran) and Sanafir in the Red Sea where,
according to the 6th century Byzantine historian, Procopius, a Hebrew state had
existed for many centuries, until it was destroyed by the Eastern Roman Emperor
Justinian. If Ben-Gurion thought that Sinai and Gaza should be part of the
State of Israel -- and this, according to Professor Ne'eman, is what he thought
before U.S. and Russian threats forced him to retreat from his stated view on
November 7, 1956, a fortiori he would have never given up Judea and
Samaria had he been Prime Minister and in vigorous health in 1967. More likely,
he would have applied Israeli law and not international law to the newly
recovered Jewish territories, just as he did in 1948.
As I
write this letter, the former long-serving Mayor of Jerusalem, Theodor (Teddy)
Kollek, has passed away. In reading his obituary, I noticed a striking parallel
between the position he held for many years in regard to Jerusalem but which he subsequently abandoned in
retirement and the position Ben-Gurion held for many years in regard to the Land of Israel, but subsequently abandoned in retirement.
While in office, Kollek vowed that Jerusalem would always remain united under Israel's sovereignty, but seven years after losing
the mayoralty race to then Likud M.K., Ehud Olmert, Kollek astonishingly
supported Prime Minister Ehud Barak's plan to re-divide Jerusalem during the Camp David Summit in 2000. This
switch of opinion by Kollek corresponds in nature to what Ben-Gurion admittedly
did when he advocated giving up all of the liberated territories of the Land of Israel in 1967 to achieve peace with Israel's Arab enemies, completely contrary to
what he had always advocated.
Despite
Ben-Gurion's change of heart in 1967, I prefer to think of him as a pragmatic
exponent and loyalist of the Land of Israel who was loath to surrender any part
of the Land of Israel unless compelled to do so under duress, as occurred in
1956 immediately after the capture of Sinai and Gaza. John Foster Dulles, the
then-U.S. Secretary of State, threatened to cut off all financial aid to Israel, from all sources, in addition to having Israel expelled from the United Nations. Russia threatened to attack Israel with nuclear weapons. Under these ominous
circumstances, involving the opposition of two super-powers, Ben-Gurion thought
it was more prudent to retract his stated views and thus agreed to return Sinai
and Gaza to Egypt. However, Ben-Gurion did not do what Prime
Ministers Menachem Begin and Ariel Sharon did later. Begin, acting on the
belief that Sinai was not part of the Land of Israel, voluntarily parted with this territory
that historically is connected more with the Land of Israel than with the Land of Egypt. In the case of Sharon, he unilaterally
abandoned an integral part of the Land of Israel to the Arab side, and evilly
uprooted about 9,000 Jews from their homes and farmsteads -- an act that I
believe fits the definition of treason under Article 97(a) and 97(b) of the
Penal Code.
I wish
to conclude my letter by referring to the 1979 landmark case of Dvikat (or
Dwaikat) v. Government of Israel et
al., famously known as the Elon Moreh case, that you favourably cite in
your article. This judgment, rendered by Deputy-President Moshe Landau, is a
judicial travesty directly traceable to your doorstep, that serves today as a
pillar for labeling Judea and Samaria as "occupied territories" under
international law. While this judgment does mention the Area of Jurisdiction
and Powers Ordinance, 1948, it betrays complete ignorance of the Land of Israel Proclamation that is governed by this Ordinance, issued
for the purpose of extending the boundaries of the State to those parts of the Land of Israel theretofore not included in the State.
Justice Landau's lack of knowledge of this proclamation led him to reach
untenable conclusions about the legal status of Judea and Samaria which persist to this day. Justice Landau
based his conclusions on the fact that Israeli law has never been applied to Judea and Samaria, not realizing that such a step was
legally required under the precedent of the Land of Israel Proclamation and Ben-Gurion' s law. He relied on the
two Military Proclamations actually issued on June 7, 1967 by Brigadier-General Haim Herzog which, he
thought, exclusively determined the legal status of Judea and Samaria. Those proclamations were based upon and
inspired by the precedents and forms you drafted and published in the Military
Manual or vade mecum given to all the legal officers in the Military Advocate's
Corps. In his judgment, Justice Landau admits that in deciding the Elon Moreh
case, he relied on the sources of customary international law (the Hague
Regulations) and two aforementioned Military Proclamations to determine the
legality of the military order requisitioning private Arab land on which the
new settlement was to be built. That would have been the proper procedure if it
could be correctly assumed that Judea and Samaria were indeed "occupied
territories", within the ambit of Articles 42 and 43 of the Hague
Regulations, but that was never the case since these territories are and have
always been integral parts of the Jewish National Home, in regard to which
Jordan was an illegal occupier and enjoyed no recognized sovereignty under
international law. I found it extraordinary to read Justice Landau's comments
(pp. 421-422 in Appendix A of your book) that the right of the Jewish People to
establish settlements in Judea and Samaria rests, not on any law he strongly
intimates, either internal law or international law, but rather on
"Zionist doctrine" or ideology. Did Justice Landau never hear of the
Law of Return enacted on July 5, 1950, which overrides the Hague Regulations
that permit requisition of land only for military needs. The Law of Return and Article
6 of the Mandate for Palestine sanction Jewish settlement not merely on land
located in the State of Israel, whether publicly or privately owned or simply
ownerless, but also in the rest of the Land of Israel, outside the State's
boundaries, in IDF or Jewish possession, as indicated by use of the Hebrew word artza in section 1 of the Law of Return and
also by what Ben-Gurion said in personally introducing this law in the Knesset
on July 3 and July 5, 1950. When Ben-Gurion explained that every Jew has the
right to come and settle in Israel, he certainly did not mean to limit this
right to the existing boundaries of the State of Israel, otherwise the Law of
Return, read in conjunction with the Area of Jurisdiction and Powers Ordinance
and the Land of Israel Proclamation, would have made no sense nor served any
purpose. When Ben-Gurion further said that this right was recognized in the law
of nations and existed even before the State did, and was, in fact, that which
built the State, he undoubtedly had in mind Article 6 of the Mandate for Palestine and the unbroken historical link of the
Jewish People with the Land of Israel throughout the ages. How then was it possible for Justice
Landau and the other judges who concurred with his opinion in the Elon Moreh
Case to overlook the Jewish right of return to the Land of Israel as embodied in the Law of Return and say
that this right of Jewish settlement rested solely on "Zionist
doctrine" or ideology? What utter nonsense that shamefully ignores or
renders inoperative the Jewish right to settle the Land of Israel! This half-truth of Justice Landau amounts
to judicial misfeasance.
The
recently retired President of the Supreme Court, Justice Aharon Barak, has
proceeded along the same path as Justice Landau and gone even further, basing
several of his recent judgments on the false premise that Judea and Samaria are
governed by the rules of belligerent occupation, including the Fourth Geneva
Convention and even the Geneva Protocols of 1977, which eradicates the rights
of the Jewish People and its assignee, the State of Israel, to Judea, Samaria
and -- formerly -- Gaza. This I stress and repeat is the dire consequence of
your original plan and program to apply the norms of international law to the
areas of the Jewish homeland lying outside the technically temporary borders of
the State. I have written to Justices Landau and Barak in the same vein that I
wrote to you, even sending Justice Landau a copy of Ben-Gurion's Proclamation,
but neither he nor Justice Barak have bothered to respond or even acknowledge
my letters.
With
all due respect to you as a learned and eminent judge and jurist, I ask you
once again in all earnestness to reconsider and restate your position on the
legal status of Judea and Samaria, even at this extremely late date. If you
wish to make amends, at least in part, for the incalculable damage you have
caused in advising and urging the application of international and foreign law
to Judea and Samaria instead of Israeli law, what you can now do is to renounce
the position you adopted previously as to which law ought to have been applied
to Judea and Samaria in 1967. Had the proper decision been taken back then by
the Eshkol Government, it is reasonable to assume that Israel would not have been subjected in later
years to all of the international pressure to "return" so-called
"Arab land" to its "owners". For the sake of future
generations, I ask you to recant your earlier position and correct the
aberration of 1967 that led to the application of the Hague Rules and Geneva Convention to Judea and Samaria.
In
closing, I may not know, as you state, all the facts of inner government
workings and decisions that took place in 1967 as I was not privy to them, as
you were. Your reproach that I also lack knowledge of the relevant law to
support my position is refuted, as can be judged by this letter and my
published Petition. Anyone, like myself, who has observed and studied the
results of what was done by the decision-makers of that time can only gasp in
disbelief at the errors and violations of law that were made at the highest
levels. Instead of following Ben-Gurion's wise and patriotic path as expressed
in the laws he was responsible for enacting in 1948 and 1950, that embraced the
Land of Israel as the eternal treasure and patrimony of the Jewish People, the
Eshkol Government and you included appear to have embraced a non-Zionist,
bizarre and illegal policy to treat the Land of Israel as part of foreign
territory, the rights to which were viewed, in the eyes of most people in the
world, as being vested not in the Jewish People but in Arab pretenders. This
shame must be expunged, and you, who inspired the application of international
law to liberated Jewish territories, are the one person who can make that
happen!
Yours
truly,
Howard Grief
February 27, 2007. APPLYING ISRAELI LAW TO AN AREA OF
ERETZ-ISRAEL MAKES SUCH AN AREA AN INTEGRAL PART OF THE STATE OF ISRAEL
Howard
Grief
Attorney and Notary
13/2 David Goitein St.,
Pisgat Ze'ev Mizrah, Jerusalem 97782 Israel
Tel. (Fax) : 972-2-656-0085
Jerusalem
9 Adar, 5767 -- February 27, 2007
Mr.
Justice Meir Shamgar,
President (Retired) of the Supreme Court,
Rehov Shahar 12
96263 Jerusalem
Dear
Mr. Justice Shamgar,
I thank
you for your letter of January 21, 2007, and for the time you have evidently
taken to present further explanations and elaborations of your position in
regard to the exact meaning of the Area of Jurisdiction and Powers Ordinance of
September 22, 1948 (hereafter: the AJPO) and the proclamation validated by the
AJPO, namely, Proclamation No. 1 of the Israel Defense Forces Government in the
Land of Israel, of September 2, 1948 (hereafter: the Land of Israel
Proclamation). I sharply disagree with your interpretation of these two
constitutional enactments by the Provisional State Council and hereby provide
you again with my own exposition as to their true meaning and import.
My
first disagreement with you centers on your argument that the "area of
application of law" is not the same as "an area within the State of
Israel". This distinction of yours harks back to an old legal controversy
that has been dealt with in the case-law of the Supreme Court and the legal
literature. Please see the excellent article pertaining to this controversy in
regard to the Golan Heights Law of December 14, 1981 and the Law and
Administration Order (No. 1), 5727-1967, in regard to eastern Jerusalem,
applying Israeli law to both these territories -- written by Professor Asher
Maoz of Tel-Aviv University, Faculty of Law (Asher Maoz, "Application of
Israeli Law to the Golan Heights is Annexation", Brooklyn Journal of International
Law, 1994, Number 2, pp. 355 to 396). The opposite view is taken by
Professor Leon Sheleff in an adjoining article ("Application of Israeli
Law to the Golan
Heights is not
Annexation", op. cit., pp. 333 to 353).
The
distinction that you cite between the "area of application of law",
which is the heading of section 1 of the AJPO and the "area of the State
of Israel" was explained by the Minister of Justice, Pinchas Rosen (then
Felix Rosenbleuth), in the legislative debate on the AJPO that took place on
September 16, 1948 (the 12th of Elul, 5708), at the 18th Session of the
Provisional State Council. Here is what Rosen said about this law (in English
translation):
"By virtue of
this law, we are setting up a kind of administrative unity by creating a
concept which is in the nature of a legal fiction, which is 'the whole of the
area' -- ha-shetah ha-kolel,
-- also to be translated as "the over-all area" or "the
comprehensive area" [defined as] an area including both the area of the
State of Israel and the re-possessed area or the held area [please note: I
translate the Hebrew term ha-shetah
ha-muhzak as either the
"re-possessed area" or "held area"; the "re-" as
used in "re-possessed" means that that area of the Land of Israel was
part of the Jewish National Home that was restored to the Jewish People and the
State of Israel; for the same reason I use the word "re-conquered"
and never "conquered" to refer to the territories restored in 1967].
And this law states that a person appointed to any position [or office],
meaning principally a central or high position -- le-tafkid merkazi -- who is located in the area of the
State, will be competent to act also in the re-possessed (held) area. Were it
not for this law, doubts might arise, whether, for example, the
Attorney-General is able to institute lawsuits and criminal complaints in Nazareth or Jerusalem. Were it not for this law, the question
could arise, whether there is a direct appeal from the District Court in Jerusalem to the Supreme Court of the State, which
commenced a few days ago.
For the
purpose of clarifying the situation and for removing all doubts, we have found
it proper, and the Legislation Committee has approved this position, to propose
to the [Provisional State] Council this Ordinance..."
Further
on in the legislative debate, Pinchas Rosen replied to a proposed amendment
made by Zerah Warhaftig of the Ha-Po'el Ha-Mizrahi party, who asked that the words
in sections 1 and 2 of the AJPO, i.e., "the area including both the area
of the State of Israel and also any part of Palestine [Eretz-Israel],
etc." be deleted and replaced by the words "any law applying to the
whole of the State of Israel shall be deemed to apply to any part of Palestine
[Eretz-Israel] which the Minister of Defense has defined by Proclamation as
being held, etc.". Warhaftig's proposed amendment was rejected by Rosen
and the Provisional State Council, on the ground that the Land of Israel
Proclamation of September 2, 1948, issued two weeks before the discussion on
the AJPO took place, said exactly what Warhaftig was proposing and therefore
there was no need to repeat the same thing in the law. Rosen added the
following comment concerning the need to enact the AJPO:
...For purposes of
administration and law, there is a need for an innovation regarding what was
said in the Proclamations [these Proclamations to which Rosen referred were the
Jerusalem Proclamation of August 2, 1948 and the Land of Israel Proclamation of September 2, 1948, both of which were validated by the
AJPO]. There is a need to create the concept of an area, which includes the
held area -- ha-shetah
ha-muhzak -- and the area of
the State -- hetah ha-medina.
From
the foregoing two quotations of Pinchas Rosen, we learn the real reason why an
apparent distinction was made between the "area of application of
law" and the "area of the State". It was for the purpose of
creating a uniformity of law as well as an administrative unity between these
two areas. The totality of the two areas -- described in the AJPO by the term
"the whole of the area" -- was, according to Rosen, a "legal
fiction", an "innovation" or a new legal "concept".
This concept of the "whole of the area" covered not only the area of
the State of Israel allocated in the U.N. General Assembly Partition Plan of
November 29, 1947, but also part of the area that was intended for inclusion in
the proposed Arab State but was re-possessed by the IDF in the War of Independence,
to which was also added the city of western Jerusalem and its approaches. This
new concept was, in my opinion, a "sleight of hand", or clever
deception to mislead the U.N. by feigning compliance with the Partition
Resolution that the Jewish Agency had accepted before the State was proclaimed.
By phrasing the AJPO in this way, it gave Israel deniability that it was not violating this
Resolution, but was merely applying Israeli law to create administrative unity
between the area of the State of Israel, the borders of which were those
proposed in the Partition Resolution, and the areas re-possessed by the IDF.
But in applying Israeli law to these areas what was the practical and legal
result? The re-possessed areas to which the AJPO applied were henceforth
included in the borders of Israel even though this was not explicitly stated
in this law. That is how western Jerusalem and Nazareth came to be included in the State and, as
will be documented more fully below, this is the case with all other parts of the
Land of Israel that came into the possession of the IDF
as well. Justice Minister Rosen was at pains to deny that the new legislation
contained political ramifications which could be interpreted as violating the
Partition Resolution.
If we
are to accept your interpretation of the AJPO and the two proclamations of
August 2, 1948 and September2, 1948 that the application of Israeli law to any
area of the Land of Israel outside the U.N. Partition line was not equivalent
to making that area a part of the State of Israel, then western Jerusalem and
its approaches would not have been part of the State as soon as it came under
Israel's full control. Nor would Jaffa have become part of the State. Nor Nazareth. Nor Lod nor Ramla. Nor Beersheba. Nor Ashkelon and Ashdod. You would then be faced with the
unsolvable question of what the legal status of these areas was after Israeli
law and administration was applied to them. Certainly, such areas were then
regarded as within the purview of the State and no one will contest that fact.
As I said in my last letter to you, these areas of the Land of Israel and the Jewish National Home became part
of the State by either of two methods:
1. by marking a map of the Land of Israel in
red with the names of the re-possessed areas, as was done in the specific cases
of Jerusalem, Lod and Ramla, in conformity with the method set out in the
Jerusalem Proclamation and the Land of Israel Proclamation;
2. by application of the law of the State to
the repossessed area, without delineating this area on a map of the Land of
Israel, as also provided for in the aforementioned Proclamations, as well as in
the AJPO. Concerning this method, I venture to say that the words "defined
by proclamation" -- asher
sar ha-bitahon higdir otan be-minshar ke-muhzak 'al-yedei tzva-hagana
le-yisrael -- as appears in
sections 1 and 2 of the AJPO are a direct reference to any past (the two
proclamations already issued) or future proclamations applying the law of the
State to the held areas wherever situated in the Land of Israel beyond the U.N.
Partition line.
The
phrase "area of application of law" was a euphemism or semantic
invention to conceal the fact that the repossessed areas were being annexed to
the State of Israel. The name of the law -- the AJPO -- did not reflect its
true purpose. It was really intended to be a law of annexation, as proved by
the result that followed its implementation, but was adroitly drafted by Rosen
and his team in the Ministry of Justice as a law to extend Israel's "Area of Jurisdiction and
Powers". If Rosen and his associates had not been deceptive, and refrained
from using convoluted language, he would have called this law by a far more
suitable name: a law of annexation, or a law to extend the borders of the State
to encompass all areas of the Land of Israel re-possessed by the I.D.F.
Applying
the law of the State to an area not previously included within it is certainly
an act to assert sovereignty over that area, or, as Justice Haim Cohn called
it, "an act of state" (quoted in the article by Professor Maoz, p.
361, footnote 31; see also p. 369, footnote 71). The consequence of this act of
sovereignty is to join that area to the State of Israel. According to Justice
Cohn (as quoted by Professor Maoz):
Both the
proclamation of the Minister of Defense according to the Order issued in 1948
and the order of the government according to the law passed in 1967, are both
acts of state par excellence,
and as such require prior consideration as well as a political decision, for
both of the actions were intended to convert the areas to which they related
into part of the area of the State of Israel.
The
citation for Justice Cohn's statement is given by Professor Maoz as: The Status of Jerusalem in the
Legal System of the State of Israel, 1967-1987, at 246, 249 (Joshua Prawer
& Ora Ahimeir, eds., 1988), reprinted in 1 HAIM H. COHN SELECTED ESSAYS 361
(1991).
An act of state is
defined as an assertion of sovereign power by the Government on the
international level, and this is exactly what occurred when Israel applied its law to the held areas. That
naturally had the effect of incorporating these areas into the State as soon as
they became subject to Israeli law.
Justice
Cohn had apparently changed his mind on this subject, for in an earlier
statement he made in the case of Ravidi v. Military Court, Hebron Zone, [24] 2
P.D. 419 (1969), he stated:
the thesis that
the application of Israeli law to a particular area, is equivalent to the
annexation of the area to the State of Israel still requires proof. In the
Justice's opinion "there is ...nothing to prevent the application of the
law of Israel to the occupied territories even in the
absence of any intention to annex them to the area of the state."
What
Justice Cohn said in the Ravidi case in 1969 would agree with your own
distinction, but what he later said in his above-quoted article in 1988 agrees
with my opinion that annexation is the legal result of applying Israeli law to
an area of the Land of Israel that was previously outside the borders of the State.
In this
regard, Professor Maoz also cites the statement of Justice Yitzhak Kahan in the
above-noted Ravidi case as to the consequence of the government order under the
Law and Administration Order (No. 1), 5727-1967 applying Israeli law to eastern
Jerusalem that had been illegally ruled by Jordan from May 15, 1948 to June
7,1967.Justice Kahan maintained that eastern Jerusalem was annexed to the State
of Israel as a result of the application of Israeli law to eastern Jerusalem, a
statement which "echoed opinions voiced by other justices of the Supreme
Court" (pp. 361-362 of Prof. Maoz's article). The "other
justices" mentioned by Prof. Maoz included Justice Halevi, Justice
Berenzon and President Justice Agranat. Moreover, a majority of constitutional
or academic jurists in Israel are of the opinion that the application of
Israeli law to eastern Jerusalem resulted in its annexation. This view is represented by
Professors Yehuda Zvi Blum, Amnon Rubinstein, Claude Klein, Menachem Hofnung
and Asher Maoz. Dissenting from this view are Professors Yoram Dinstein, Leon
Sheleff and the late Nathan Feinberg.
After
the judgment rendered by Justice Barak in the case of Awad v. Prime Minister
and Minister of the Interior, [42] 2 P.D. 424 (1988), it is now settled case-law
that the application of Israeli law, jurisdiction and administration to any
area of the Land of Israel, outside its present borders, effectively annexes
that area to the State, making it a part thereof, whether the area in question
is eastern Jerusalem, the Golan Heights or any other area of the Land of
Israel.
That
also appears to be the strong underlying assumption of the new law passed in
1999 entitled the Law and Administration Law (Cancellation of the Application
of the Law, Jurisdiction and Administration), 5759-1999: hok sidrei ha-shilton u-mishpat -
bittul hehalat ha-mishpat, ha-shipput ve-ha-minhal, 5759. Under this law, a
decision taken by the Government as set down in an international treaty or
agreement, the purpose of which is to cancel or withdraw the application of the
law, jurisdiction or administration of the State of Israel to an
"area", as it is termed simply in the law, presumably an area located
anywhere in the State, needs both the approval of the majority of the Knesset
members, as well as the approval of the majority of votes cast by the
participants in a public referendum or plebiscite. The entire basis of this law
is to remove or "de-annex" a pre-existing "area" from the
State to which the law, jurisdiction and administration of Israel already applies. The "area" is,
by definition, an "area of the State", otherwise this law would not
make any sense at all. The very fact that the law provides for such a double
majority in order for it to be passed means that the law is dealing with a subject
of great importance, namely that of reducing the borders of the State by
withdrawing an area from it, but not particularly limited to the Golan Heights.
This law settles conclusively the question regarding the effect and result of
applying or not applying Israeli law to an area within the State: on the one
hand, the "application of law" to an area automatically makes that
area a part of the State as seen in the context of the State of Israel's
experience and history, and, on the other hand, by doing the very opposite,
i.e., "withdrawing the application of law", to a particular area
excludes that area from the State. That is as clear as I can enunciate this
point which you have raised twice in your letters to me, concerning which your
position is diametrically opposed to what I have just stated.
One
final observation concerning the definition of "an area of the State of
Israel" should be brought to your attention. This phrase was actually
defined in the 2001 law called the "Denial of the Right of Return
Entrenchment Law" -- hok
shiryun shelilat zechut ha-shiva, 5761 --
as follows:
Area of the State
of Israel: "an area located within the borders of the sovereign rule of Israel" -- -
shetah medinat yisrael - shetah ha-nimtza bit-hum shelitatah ha-ribbonit shel
medinat yisrael
In my
opinion, this would equate the "application of law" to an area of the
State of Israel with the sovereign rule of Israel over that area. When this definition is
read in combination with the 1999 law cited above, the area of sovereignty of
the State is identical to the area where the law, jurisdiction and
administration of the State of Israel is in force.
I have
written elsewhere that Israeli sovereignty also extends to Judea, Samaria and Gaza, where in fact the corpus of Israeli law
is not in force because the Government of Israel, acting through the Minister
of Defense, failed to invoke the AJPO and Land of Israel Proclamation to these areas when they were repossessed
in June 1967. Judea, Samaria and Gaza are integral parts of the Jewish National
Home assigned to the Jewish People at the San Remo Peace Conference on April
25, 1920, but the
regrettable fact is that the State of Israel has never formally acknowledged or
asserted its own inherited sovereignty over these areas. I treat this subject
in my forthcoming book on The
Legal Foundation and Borders of Israel under International Law, and
therefore refrain from further discussing this question here.
The
fact that the AJPO was amended in 1956 to include section 2 A, which uses the expression
"shall be deemed to be part of the area of the State of Israel" in
regard to any vessel (ship) or aircraft, wherever situated, does not prove what
you strongly impute to it, that the legislator deliberately avoided the use of
the same expression in AJPO as is found in section 2A, because "the area
of application of law" was not tantamount to "the area of the State
of Israel". However, in the case of a ship or aircraft, an express
identification was needed to prove that the ownership of the vessel or aircraft
was that of the State of Israel and not of another, foreign state, for the
purpose of determining the jurisdiction of the courts of Israel in the event
that a crime is committed on board the vessel or aircraft or if a lawsuit for
damages was brought by an injured passenger or his heirs, etc. This case
obviously differs from sections 1 and 2 of the AJPO where the law is talking
about dry land and not about movable property (wood and iron) located outside
the boundaries of the State. The legislator acted wisely in identifying these
carriers or public conveyances as being a part of the State of Israel, to
remove any doubts about their legal status. Consequently, an attack on an
Israeli vessel or aircraft that takes place outside Israel is an attack on the State itself, as is
also the case if an Israeli embassy in a foreign country suffers an attack on
its premises or property.
You
tell me in your letter that only the Government of Israel has the authority to
decide if an area or region of the Land of Israel shall be joined to the State, and that
this cannot be done by the Minister of Defense alone. It is true that this is
what was said by the Minister of Justice, Ya'akov Shimshon Shapiro, when he
introduced the bill to amend section 11 of the Law and Administration Ordinance
of 1948. However, this was an innovation in the law, since prior to June 27,
1967, the date section 11B was enacted by the Knesset, all areas outside the
U.N. Partition line that were joined to the State, such as western Jerusalem
and Nazareth, were annexed by a proclamation issued in the name of the Minister
of Defense, who acted in the name of the Government pursuant to the authority
vested in the Minister by the AJPO. This is clear from the definition of the
term "proclamation" in the Interpretation Ordinance (New Version) of
1967. This ordinance defines the term as "a proclamation -- minshar -- or declaration -- akhraza -- by or with the authority of the
Government". Under the Interpretation Ordinance, a proclamation is also
included in the definition of a "law" -- din -- as well as that of an
"enactment" -- hikkuk -- and "regulation" -- takkana. Each of these acts of
subordinate or secondary legislation is presumed to be an act of the
Government, even though this is a rebuttable presumption, and if the act is not
made or issued under proper authority it can be annulled by the courts. There
can be little doubt that when Defense Minister Ben-Gurion issued the two
proclamations in 1948, he was neither acting unilaterally nor illegally, but by
or with the authority of his Government and in prior consultation with it.
It is
not my intention or wish to embarrass you about who originated the term the
"held areas" -- shetahim
muhzakim -- but it was first
used in 1948 in the two afore-mentloned Proclamations and could not therefore
have originated with you. You can verify for yourself that this term was
specifically defined in section 1 of Proclamation No. 1 of the IDF Government
in the Land of Israel and also in section 1 of Proclamation No.1 of the IDF
Government in Jerusalem. In the legislative debate preceding the enactment of the
AJPO, both Pinchas Rosen and Zerah Warhaftig spoke about the "held
areas" in contradistinction to "occupied areas" to which the law
and administration of Israel would be applied. The AJPO used a slightly
different phrase in the text of the law, "any part of Palestine... held by the Defense Army of
Israel", but it was equivalent to the term "held areas". Your
use of the same term in 1967 was therefore only a continuation of the same
phraseology begun in 1948.
English
translations of the Hebrew legal terms shetah
muhzak and shetah kavush are, it is agreed, irrelevant from the
point-of-view of Israeli law, but on the contrary they are of utmost importance
from the point-of-view of international law and also popular understanding of
what Israel did in 1967. Had the term shetah
muhzak been correctly
translated as a "held area" and not as an "occupied area",
there would probably not have arisen such a fierce world outcry against Israel's "occupation" of so-called Arab
territory under international law. The words "occupation",
"occupied territories", "occupier", etc. have become the
single greatest accusation hurled against Israel since 1967, not only by Arab states and their
allies but also by the United Nations, the European Union and the United States, as well as by the unthinking Left inside
the country. It was therefore an act of self-abasement and a self-inflicted
wound to translate shetahim
muhzakim into "occupied
areas" or "occupied territories", instead of "held
areas" of the Land of Israel that should have been annexed immediately to the State of
Israel under the AJPO and Land of Israel Proclamation. If that had been done in June, 1967, no
one would have called these territories "occupied", as they were
recognized parts of the Jewish National Home that had been illegally detached
in various partitions in the proceeding decades and were under illegal Arab
(Jordanian and Egyptian) occupation.
I also
take issue with your statement that the law in force in Israel on September 22,
1948, the date when the AJPO came into operation, was completely identical to
the law that applied in the other areas of the Land of Israel which were part
of the Mandate, the implication being that it did not matter whether Israeli
law or international law was applied since they were both the same. This is an
intriguing argument, but it, too, falls apart upon closer examination. First,
the corpus of law in the new State of Israel was not identical to the
pre-existing law, because important changes were introduced right at the
inception of the State of Israel, as set out in section 13 of the Law and
Administration Ordinance and also in the Proclamation issued by the Provisional
Council of State on May 14, 1948 that accompanied the Declaration of the
Establishment of the State. These changes were necessitated by the continued
existence of several provisions of laws dating from the White Paper of May 17,
1939, that would have remained in force had not the new legislative authority,
the Provisional State Council, declared them null and void. These provisions of
law were: sections 13 to 15 of the Immigration Ordinance, 1941; Regulations 102
to 107C of the Defence (Emergency) Regulations, 1945; and the Land Regulations,
1940. In addition, the Law and Administration (Further Provisions) Ordinance of
July 1, 1948 stated as follows:
Construction of
laws
Section 2: For the removal of doubts it is hereby declared:
(a)
where any law enacted by or on behalf of the Provisional Council of State is
repugnant to any law which was in force in Palestine on the 5th of Iyar, 5708
(14th May, 1948), the earlier law shall be deemed to be repealed or amended
even if the new law contains no express repeal or amendment of the earlier law.
By
passing this kind of legislation the Provisional State Council made it clear
that the body of law that was in force prior to the establishment of the State
was not identical to the law that existed afterwards.
Moreover,
if international law had been applied to the "held areas" in 1948,
instead of the law of the State, this would have created the same type of legal
damage and controversy as occurred in 1967 when this is what was actually done,
apparently on your advice and based on your preparatory work. The laws and
customs of war as embodied in the Hague Rules of 1907 would then have applied
to all territories beyond the UN Partition line for the Jewish State held by
the IDF, based on the premise that they were "occupied territories"
or were acquired through war, especially if the Arab state proposed in the
Partition Plan had come into existence in the areas not held by the IDF, or
also if Trans-Jordan, as Jordan was then called, had purported to act on behalf
of this aborted Arab state. In seizing the land allotted for the proposed Arab
state under the UN Partition Plan, the Arab state of Trans-Jordan effectively
replaced the aborted Arab state with the consent of the Arab notables living in
Judea and Samaria, thus giving it a supposed right to argue that "Arab
land" held by Israel that had been earmarked for the Arab state was being
occupied by the Jewish State under the Hague Rules of international law. We are
talking here only of theoretical possibilities, but since you raised this
subject, a future mess could have been created if the Government of Israel had
acted in 1948 as it did in 1967 by applying international law to areas of the
Land of Israel not included in the State's boundaries under the UN Resolution
of November 29, 1947.
Of course,
Israel wisely did not do so, thanks to Ben-Gurion
and his two Proclamations of August 2, 1948 and September 2, 1948, but it cannot be denied that this kind of
Arab complaint supported by the U.N. could have theoretically popped up and
weakened Israel's rights to all of the Land of Israel. By applying the law of the State to
western Jerusalem and other held areas of the Land of Israel, the Government
warded off other possible claimants to these lands, namely, the UN
vis-Ã -vis Jerusalem, Lebanon vis-Ã -vis Upper Galilee and Egypt
vis-Ã -vis the Negev. It therefore mattered a great deal that
international law was not applied in 1948 to the held areas by the Minister of
Defense on behalf of the Government, but rather the law of the State.
In
summary, this application of Israeli law to the held areas avoided the
application of British Mandatory enactments that were discriminatory against
Jews and contrary to the provisions of the Mandate, and also avoided the
possible invocation of the Hague Rules to the held areas, or as the Arabs may
have called them, the "occupied areas" of the proposed Arab state,
seized by Transjordan in the name of that state.
As to
section 2 of the AJPO, this provision extends Israel's administration to the "whole of the
area". It constitutes further evidence that the held areas became part of
the State, otherwise what right would Israeli officials or office-holders
sitting in Tel-Aviv have either prior to September 22, 1948 when the AJPO
became law or afterwards, to exercise their duties and powers in the held areas
(including Jerusalem, Yaffo, Nazareth, Lod, Ramla, etc.) if these areas were
not part of the State? If that was really so, as you maintain, then section 2
would constitute extra-territorial legislation, meaning that Israel would be
exercising its sovereignty outside its own territory, contrary to international
law. However, this is nonsense, since the held areas did truly become part of
the State. Section 2 also applied to court proceedings and appeals taken from
the Magistrate's Court in the held areas to the District Court or to the
Supreme Court in the State of Israel, as stated by Minister of Justice Pinchas
Rosen, in the legislative debate on this section.
In our
correspondence, I have staked my whole argument as to why the law of the State
had to be applied in regard to all areas of the Land of Israel re-possessed in the Six-Day War, on the
centrality and significance of the precedent-setting Land of Israel Proclamation. In your letter dated January
21, 2007 you adopt
a very restrictive view of the meaning of this pivotal Proclamation when you
affirm that it related only to Ramla and Lod and that my assumptions regarding
the scope of its applicability have no factual foundation. You base your
interpretation on the map attached to this Proclamation which depicted only
Ramla and Lod. However, if we take a good look at the legislative debate on the
AJPO and also examine the language of the text of the Land of Israel Proclamation, it will be conclusively demonstrated that
your interpretation of the limited scope of the Proclamation is unfounded and
my view of the open-ended nature of the Proclamation is justified.
In the
legislative debate on the bill containing the AJPO before it became law, the
following are the exact words of Justice Minister Pinchas Rosen explaining its
meaning and scope:
pekuda zo,
she-'avra et va'adat ha-hakika ve-ushra 'al-yadah peh ehad, ba'a kedei
le-faresh uke-hashlim et ha-minsharim, she-lefihem hutal hok ha-medina 'al
ha-shetahim ha-muhzakim/ attem be-vaddai zokhrim ahe-pursemu shnei minsharim
ka-elleh, minshar ehad she-hetil et hok ha-medina 'al shetah yerushalayim,
u-minshar sheni she-hetil et hok medinat yisrael 'al yeter ha-shetahim
ha-muhzakim.
In the
above-quoted paragraph, Rosen states explicitly, first that the Jerusalem
Proclamation imposed the law of the State on the area of Jerusalem and second that the Land of Israel Proclamation imposed the law of the State on the rest
of the held areas. The held areas that Rosen specifically names in the legislative
debate were Jerusalem and Nazareth, the former governed by the Proclamation
of August 2, 1948, and the latter -- by the Proclamation of September
2, 1948. He does
not specifically mention Ramla and Lod, but they are naturally included when he
refers to "the rest of the held areas". Zerah Warhaftig, who
participated actively in the debate, mentions the area of Jaffa, which was re-possessed on May
13, 1948, two days
prior to the establishment of the State, after its Arab inhabitants abandoned
the city.
Warhaftig
also spoke directly about the question whether or not the held areas outside
the U.N. lines were part of the State. Here is what he said on the subject:
shama'nu kama hatzharot bishivot mo'etzet-ha-medina
u-mi-hutza lah mi-pi sar ha-hutz ve-gam mi-pi rosh ha-memshala 'atzmo,
she-anahnu lo kibbalnu et ha-gevulot shel kaf-tet be-November ke-muhlatim,
ve-she-be'ekev ha-devarim she-halu me-az ve-'ad ha-yom nidrosh shinui
ba-gevulot im ha-davar yuva bifnei ha-um. be-khol ofen, ha-shetahim ha-nimtza'im
mi-hutz la-gevulot halalu einam mi-hutz li-gevulot medinat yisrael. yeshnam
sham halakim she-yihyu kelulim bim'dinat yisrael.
There
was no doubt in Warhaftig's mind that Jerusalem, Jaffa, Nazareth and the rest
of the held areas were part of the State of Israel and that the provisional
borders of the State as delineated in the UN Partition Plan no longer coincided
with those borders, but had been expanded to include the held areas.
It will
be recalled, as previously discussed in this letter, that Warhaftig wanted to
amend the bill for the AJPO to include the words "any law applying to the
whole of the State shall be deemed to apply to all parts of the Land of Israel...". Rosen rejected the proposed
amendment on the ground that what Warhaftig wanted to include in the AJPO was
exactly what the Jerusalem Proclamation and Land of Israel Proclamation had contemplated and therefore there was
no need to repeat the same wording in the AJPO. The rejection of the proposed
amendment is further substantiation that the Land of Israel Proclamation applied to all areas of the Land of Israel re-possessed by the IDF outside the
borders of the Jewish State fixed by the U.N. in the Partition Resolution.
In
addition to the foregoing evidence of the wide scope of the Land of Israel Proclamation, an analysis of the text of the
Proclamation also confirms its extended applicability to all areas of the Land of Israel excluding Jerusalem. The opening words in the preamble of the
proclamation state that "various areas in the Land of Israel are in the possession of the Israel
Defense Forces". The phrase "various areas" is broad enough to
cover all the held areas, not just Ramla and Lod. This phrase would not have
been used if the intention had been to limit the meaning to only these two
areas.
Moreover,
Article 1 of the Land of Israel Proclamation refers to the held areas that may
be delineated on any other map replacing the map attached to the proclamation
of September 2, 1948, and the concluding part of Article 5 refers to the held areas
the possession of which passed to the IDF afterwards, i.e., after September
2,1948. The wording of the proclamation in Articles 1 and 5 makes it evident
that it applies to all areas held by the IDF that were either recovered in
battle or abandoned or surrendered by their Arab inhabitants, whether such
areas were re-captured prior to September 2, 1948 or after that date, and not
just to the held areas of Ramla and Lod.
It
seems to me that the delineation of areas re-conquered by the IDF as shown on a
map of the Land of Israel and then incorporated into the State was a makeshift
or temporary method, that was replaced by a better method for accomplishing the
same purpose, which was simply to apply the law of the State to the held areas,
as provided for in Article 2 of the Land of Israel Proclamation and Article 1
of the AJPO. This is exactly what happened when Beersheba, Ashdod and Ashkelon were repossessed by the IDF more than a
month after the Proclamation was originally issued. There is no disputing the fact
that this proclamation, the scope of which I have shown is open-ended, applied
to these newly re-conquered areas and would also have applied to other areas of
the Land of Israel such as Ramallah or Hebron or, for that matter, to all of
Judea and Samaria had they too been re-conquered in the War of Independence.
The same method of annexing areas of the Land of Israel to the State of Israel should have been
followed in 1967 when in fact Judea
and Samaria and other areas of the Land of Israel came into the possession of the IDF as a
result of the Six-Day War. But this was not done! The application of
international law, instead of Israeli law, was a monumental violation of the
existing constitutional law pioneered by Ben-Gurion and Rosen, a violation that
had tragic consequences and severely weakened Israel's rights to the Land of Israel. What appears to be your legal advice to
the Eshkol Government in bringing about this violation is a terrible stain on
your good name that seems to call for an act of atonement on your part.
Moving
on to your next point, you refer to "the end of section 3 of the
Ordinance" as being derived from customary public international law. This
provision of law validated retroactively all acts done "which but for the
provisions of this Ordinance would be without effect". This section
validated the two proclamations issued by the Minister of Defense, which
extended the law of the State to all the held areas. However, I am mystified by
your statement that section 3 represents customary public international law. In
any event, I agree with you that customary international law is part of the law
of the State which is taken from English common law. This is independent of the
fact that the Hague Rules, having the status of customary international law,
were inapplicable to any area of the Land of Israel re-conquered by the IDF,
both in 1948 and in 1967, since such areas were not occupied lands governed by
international law.
As to
your final point, you reiterate that section 11B of the Law and Administration
Ordinance, 1948 deals with the inclusion of territory in the State of Israel,
in supposed contrast to the AJPO which, in your opinion, does not. I believe
that in its essence Section 11B is hardly different from the AJPO, except that
the former is implemented by the Government as a whole and is optional in
nature, while the latter is implemented by the Minister of Defense on behalf of
the Government and is mandatory. Section 11B never explicitly states that an
area of the Land of Israel, to which the law, jurisdiction and administration will
apply by order of the Government becomes part of the State. I agree that this
order does make such an area part of the State, but that is also what the AJPO
does when a proclamation has been duly issued. Thus I do not understand why you
attribute this result only to section 11B but deny it for the AJPO. That
appears to me to be illogical.
On this
point, you justify your position by referring to the statement made by the
Minister of Justice, Ya'akov Shimshon Shapiro, in the Knesset debate when
section 11B was presented as an amendment to the Law and Administration
Ordinance. I have read Shapiro's speech. He said in effect that to join an area
of the Land of Israel to the State, in particular to an existing municipality
under section 8A(a) of the Municipalities Ordinance, an act of sovereignty was
required, and that could be accomplished by applying the law of the State to
any part of the Land of Israel actually under the de facto control of the State. What Shapiro was
saying in 1967 -- about applying Israeli law, jurisdiction and administration
to liberated areas beyond the borders of the State was really no different from
what Rosen said in 1948 about applying Israeli law and administration to the
held areas. Shapiro was even more emphatic than Rosen in this matter because he
said that not only had the IDF taken control of considerable, but not
contiguous areas of the Land of Israel in the Six-Day War, but had
"liberated" them "from the yoke of foreigners" ...
...hu she-tzva
hagana le-yisrael shihrer me-'ol zarim halakim nikkarim me-eretz yisrael, lav
davka retzufim' ve-ha-nimtza'im zeh le-ma'ala mi-shevu'ayim bishelitat tzahal
To
conclude this letter, I feel I understand fully your reluctance to admit any
error in your legal position affecting the Land of Israel. You have laboured several decades as a
distinguished Military Advocate General, Attorney General, Judge and President
of the Supreme Court in propounding the view that bears your trademark, the
view that the areas of Judea, Samaria, Gaza, the Golan Heights and Sinai
re-possessed in 1967 were destined to be governed by international law and not
by the law of the State. Though you think otherwise, I perceive that your legal
perspective was not in accord with the constitutional structure created in 1948
in regard to expanding the borders of the State to encompass all of the Land of
Israel as originally envisaged in various acts of international law in 1920 and
1922 and by David Ben-Gurion in the legislation he was responsible for enacting
as Prime Minister and Defense Minister.
You
have also greatly influenced other members of the judiciary, particularly
Justices Moshe Landau and Aharon Barak in their judgments that served to
reinforce your original view that the liberated Jewish territories of Judea and Samaria are governed by international law. This
opinion of yours was, as already noted, apparently passed along to the Eshkol
National Unity Government, and the State of israel has been burdened with its
dire consequences ever since. The Government's acceptance of this advice
created the occupation myth that is exploited daily by all Arab and Moslem
states and by the Arabs of Israel, as well as a plethora of Jewish leftists who
have been educated in accordance with your unfortunate view on the subject, to
denounce Israel's control of Judea and Samaria or what is left of it today. If
the occupation myth is ever to be ended, it will take a very courageous step by
you personally that is also long overdue: to admit that the application of
international law, specifically the application of the Hague Rules to Judea and
Samaria in 1967, instead of Israeli law, was a colossal mistake that altered
and badly damaged our constitutional structure for the unification of the Land
of Israel under Jewish rule.
I
continue to hope that you will realize the truth of what I have written and
will decide to act accordingly.
Yours
truly,
Howard Grief
Editor's Comment: For technical reasons words originally
written in Hebrew have been transliterated. The original Hebrew may be obtained
by writing Attorney Grief at 13/2 David Goitein
St., Pisgat Ze'ev Mizrah, Jerusalem 97782 Israel.
From Yoel
Lerner,
Editor of the "Howard Grief Eretz-Israel Letters"
The Howard Grief
Letters to Meir Shamgar, being one side of the correspondence conducted by
the author, a Jerusalem attorney specializing in Israeli constitutional law
and international law regarding Eretz-Israel, and Meir Shamgar, President
(Emeritus) of the Israeli Supreme Court, focus on the part played by the
latter in the crucial years between 1961 and 1968 when Shamgar served as
Military Advocate General and Israel came into de facto possession of much of the land
outside the borders of the State but already allocated to the Jewish People
at the conclusion of the First World War in the global settlement that
brought into existence many states in South East Europe as well as in the
predominantly Arab Middle East. These Letters, written in the English
language in which Howard Grief expresses himself most eloquently, provide the
basis for a desperately-needed thorough revision of the Israeli legal
treatment of Yehuda v'Shomron -- Judea
and Samaria.
The Howard Grief
Letters to Meir Shamgar were written in two stages, the first being an
abortive stage (November 2005) where Attorney Grief sent President (Emeritus)
Shamgar a copy of a letter he had written to a mutual acquaintance, Mr.
Eliezer Dembitz, a former Military Court Judge appointed to his post by
Shamgar himself, "in which [Grief] amplif[ies] the point why [Shamgar]
was... in breach of the existing constitutional law when [he, Shamgar]
conceived the plan in the early 1960s to apply international law, instead of
Israeli law, to re-conquered areas of the Land of Israel and the Jewish National
Home," actually repossessed in 1967. No comment on the contents of the
letter, with which the Correspondence begins, was forthcoming from President
Shamgar at that time.
The second and far
more fruitful stage of this unique Correspondence began a year later when
Howard Grief wrote directly to President [Emeritus] Shamgar. Shamgar's reply
initiated a fascinating exchange of letters and of thoughts that took place
over a period of several months. It was President [Emeritus] Shamgar's
categorical objection to the publication of the letters he himself had
contributed to the Correspondence that led to the decision to publish Howard
Grief's letters in the present format. The discerning reader will be able to
reconstruct many of the arguments made by President [Emeritus] Shamgar, to
which Howard Grief has responded.
Yoel
Lerner, Editor
April, 2007
|
Howard Grief was born
in Montreal, Canada, educated in law at McGill University and made aliyah in 1989. He served as international law
advisor to Professor Yuval Ne'eman, the then Minister of Energy and
Infrastructure on matters pertaining to the Land
of Israel and Jewish rights thereto. He is a Jerusalem-based attorney
and notary, as well as a specialist in Israeli constitutional law. In October
1993, he wrote the first of several articles denouncing the illegal agreements Israel made with the PLO; these appeared in the pages of Nativ and elsewhere. He is the founder and
director of the Office for Israeli Constitutional Law.
He formulated the
original thesis that sovereignty over the entire Land of Israel and Palestine
was devolved upon the Jewish People at the San Remo Peace Conference in April
1920 as part of the global settlement that dismembered the
Ottoman Turkish Empire and created the Middle Eastern states of today; as a
consequence, the British White Papers published during the Mandate period, as
well as the UN General Assembly Partition Plan of 1947, were illegal. He is the
author of two forthcoming books on The
Legal Foundation and Borders of Israel under International Law, which deal with his thesis in an
orderly and comprehensive fashion
The "Howard
Grief Eretz-Israel Letters to Meir Shamgar, 2005-2007 -- on Eretz-Israel and
Israeli Constitutional Law" edited by Yoel Lerner was published by the
Office For Israeli Constitutional Law (Registered Amuta), Iyar 5767 -- May
2007. It was submitted to Think-Israel by Yoel Lerner, editor of The
Grief Letters on September 2,
2007.
[Editor's
note: You can read Howard Grief, "The Origin of the Occupation Myth,"
by clicking here. And
his article on "Legal Rights and Title of Sovereignty of the Jewish People
to the Land of Israel and Palestine under International Law" can be read here.]
THE ORIGIN OF THE OCCUPATION MYTH
by Howard Grief
Inasmuch
as Israel is always unjustly condemned by the United Nations as an occupier of
"Arab land" in regard to Judea, Samaria and Gaza, a condemnation that
has no basis in either fact or law, it is important to trace the origin of this
pernicious myth. This myth has provided the world body with the necessary
pretext to intervene constantly in the internal affairs of these Jewish lands.
The myth originated and has persisted to this very day, astonishingly enough,
with the aid of Israel's legal establishment or coterie of eminent jurists
ensconced in several centers of authority, notably (1) the Supreme Court of
Israel; (2) the Attorney-General's Office; (3) the Ministry of Justice; (4) the
International Law section of the Israel Defense Forces (IDF), operating under
the Military Advocate-General's Command; and (5) the Law faculties of Israel's
universities.
The
individual who bore the greatest responsibility for this myth was Meir Shamgar,
who was Military Advocate-General from 1961 to 1968, and later the
Attorney-General of Israel and the President of the Supreme Court. He
was at the epicenter of the decision made by Prime Minister Levi Eshkol's
National Unity Government during the Six Day War to apply not Israeli law but
the laws of war to all the liberated Jewish territories, in particular the
provisions of the Hague Regulations of 1907, as well as the Fourth Geneva
Convention of 1949. This application was completely inappropriate to the
situation considering the historical connection and sanctity of these
territories to the Jewish People and their legal inseparability from the Jewish
National Home.
What
moved Meir Shamgar to invoke the laws of war? He described what he did without
providing the rationale for doing so in an article he wrote called, "Legal
Concepts and Problems of the Israeli Military Government -- the Initial
Stage".[1] Shamgar did not conceal his belief that military government
based on international law relating to occupied territories was the proper
course to follow in regard to Judea, Samaria, Gaza, Golan and Sinai. He
referred in a general sense to these territories as "enemy territory"
or "occupied enemy territory".[2] Elsewhere he called the same
territories "occupied", "under military occupation" or
"administered", but he never called them "liberated territories
of the Jewish National Home", which was their true legal status under
international law after their liberation from the illegal Jordanian and
Egyptian occupation respectively lasting from May 15, 1948 to June 6-8,
1967.[3] In two revealing and significant footnotes, Shamgar admitted that he
had planned the entire legal framework for any
territories Israel conquered in a future war with Arab states. He formulated
his plan in the early 1960s before the Six Day War was either foreseen or its
results imagined. He did this to avoid the situation of a supposed legal vacuum
that had prevailed in Sinai after Israel's lightning victory in the 1956 war, when
no plan existed for the legal administration of the peninsula during Israel's three month stay there.
He
conducted special courses for platoon officers belonging to the Military
Advocate's Corps. All military advocates carried with them "movable
emergency kits" which contained the laws of war (Hague 1907, Geneva IV
1949 etc.) and a large set of precedents of military government proclamations
and orders, as well as detailed legal and organizational instructions and
guidelines. In addition, Shamgar wrote and published a comprehensive vade-mecum which he called, "Manual for the
Military Advocate in Military Government".
As a
direct result of Shamgar's ill-conceived plan of what Israel was supposedly
obliged to do under international law in the event that the IDF re-captured or
liberated any territories of the Land of Israel in Arab hands, a regime of
military government based upon the provisions of the Hague Regulations of 1907,
specifically Articles 42 and 43, was immediately established in the wake of
Israel's total victory on three fronts in the Six Day War. Military Government
was defined by Shamgar as "the form of government established by a country
which has occupied enemy territory, whether the [occupied land] was formally
under the sovereignty of such enemy or whether it could be regarded as former
sovereign territory of the occupying power or any of its allies".[4]
Despite Shamgar's disclaimer that in establishing a military government, Israel
was not necessarily occupying enemy territory that was truly under the
sovereignty of the enemy state, especially in regard to Judea, Samaria and
Gaza. That was in fact the general perception in the rest of the world, made
even more believable by the very application of the provisions of the Hague Regulations relating to "occupied
territories".
The
military government was made up of four regional entities covering 1) the Gaza
Strip and northern Sinai; 2) central and southern Sinai; 3) Judea and Samaria; and 4) the Golan Heights. The application of Articles 42 and 43 of
the Hague Regulations meant that in the case of the (single) region of Judea
and Samaria, Jordanian law as it existed on June 7, 1967 that included
unrepealed provisions of Mandatory law and remnants of Ottoman law would
continue to be enforced unless amended or repealed by new security enactments
of the Military Government. In the case of Gaza, this meant that Egyptian military
regulations that had been in force in the period from May
15, 1948 to June 6,
1967 would also
continue to be applied, as well as unrepealed Mandatory provisions unless the
law was also amended or repealed by the Military Government. In regard to
northern Sinai, which was linked to Gaza to form a single administrative unit, the
pre-1967 legal system remained in effect under the Military Government. Even Jerusalem came for a brief time under a military
government from June 7 to June 28, 1967, that ceased to exist only after
"East" and "West" Jerusalem were finally reunited by virtue of a
government order and proclamation.
The Golan Heights indeed presented a unique problem. As a
result of the fighting that took place there in the Six Day War, none of the
judges or lawyers remained in the region after June 10, 1967 to administer the local Syrian law, nor
were any Syrian law books available for use. With the breakdown of the
previously existing judicial administration, and in accordance with the
accepted principles of international law applicable to occupied territories,
Israel created new courts for both civil and criminal proceedings under
military administration.[5] Security enactments were formulated setting out the
substantive law, procedure and law of evidence in civil matters that followed
the laws and practice in Israel, and this was also done for criminal offenses
and trials. The military administration of the Golan Heights came to an abrupt end with the passage of
a Knesset law on December 14, 1981, that henceforth applied the law,
jurisdiction and administration of the State of Israel to this territory, thus
in effect annexing it.
The
setting up of a military government for all the liberated territories of the Land of Israel formerly under illegal Jordanian or
Egyptian occupation was incredible in the extreme. As noted above, despite
Shamgar's disclaimer, its effect was to delegitimize or deny the rights of the
Jewish People and its assignee, the State of Israel, to permanently govern
these precious Jewish territories recognized by the Principal Allied Powers in
1920 as belonging to the Jewish People. The person mainly responsible for this
outrageous, ignorant and unforgivable legal conception that has caused untold
damage to the Jewish Zionist case to this very day was Meir Shamgar, one of Israel's most eminent jurists.
The
fatal flaw in Shamgar's plan that should have flashed a red light was that
there was never any true obligation incumbent upon Israel to apply
international law to the areas of the Land of Israel recaptured in a defensive
war by the Israel Defense Forces. This was because Judea,
Samaria and Gaza were previously designated by
international law in 1920 and 1922 as integral parts of the Jewish National
Home under the Mandate for Palestine read in conjunction with the
Franco-British Boundary Convention of December 23, 1920 and hence were being legally repossessed
by Israel. The Golan Heights were also to be considered an integral
part of the Jewish National Home, though illegally removed from the Home by Britain in a trade-off agreement with France dated February 3, 1922, which took effect only on March
10, 1923.
Sinai
was illegally excluded from the Jewish National Home which was supposed to
include all territories to which Jews had a proven historical connection and
had settled or governed in the days of the First and Second Temple Periods,
when Palestine's borders were first delineated on December
23, 1920. It was
excluded because Britain had decided in 1906 to attach Sinai to Egypt to protect the Suez Canal which it controlled from possible Turkish
attack. Egypt had been under the sovereignty of the Ottoman Empire since 1517, but in 1882 it was occupied by
Britain which ruled it until Egypt attained its independence by a treaty
concluded in 1922. The British were apprehensive about the earlier
administrative border extending from Rafiah in the north to the city of Suez at the southern exit-point of the Suez Canal, since this border afforded the Turks easy
access to the Canal, especially at the southern end.
To
change the administrative border between the Sanjak of Jerusalem and the
Province of Hedjaz, on the one hand, and the Sinai Peninsula, on the other,
Britain deliberately fomented a crisis with Ottoman Turkey called the Aqaba
Incident, in which they delivered an ultimatum to Sultan Abd-al-Hamid II on May
3, 1906, demanding a new border in Sinai from Rafiah to the head of the Gulf of
Aqaba (Gulf of Eilat), near Taba. The British backed up their ultimatum by
sending military and naval forces to the area, one gunboat dropping anchor at
Rafiah and another off Taba. Under an imminent threat of war, the Sultan,
acting under duress without the support of any foreign state, had no choice but
to accede to the new administrative dividing line demanded by the British. An
agreement was quickly negotiated and concluded on October 1, 1906, in which (italics in the original) "Egypt was granted administrative rights in Sinai up to a line drawn from Rafa
to the head of the Gulf of Akaba, Turkey expressly retaining the right of sovereignty."[6]
Meinertzhagen further observed in his Diary that in 1917, General Allenby,
unaided by the Egyptian Army, conquered and occupied Turkish Sinai, which, by
right of conquest, was at Britain's disposal.
In
actual fact, since Britain was then acting on behalf of the Principal Allied
Powers (the wartime coalition of Britain, France, Italy and Japan), Sinai was
at the disposal of these Powers as a group rather than of Britain alone, and
since at least half of Sinai was part of the Land of Israel, it should have
been attached to Palestine, i.e., the Jewish National Home, in 1920 when its
borders were demarcated for the first time in accordance with the spirit and
intent of the San Remo Resolution.
Sinai
was in fact administered until 1892 from what later became Palestine, and about half of Sinai was included in
the Sanjak of Jerusalem until 1906. In any event, Egypt was never recognized as the sovereign of
Sinai under international law, but at best its administrator. In fact, in 1906,
the Egyptian National Movement under its leader Mustafa Kamil, opposed British
attempts to annex Sinai to Egypt. Furthermore, until 1948, Egypt never
claimed Sinai as part of its sovereign territory except for the northwestern,
triangular area, which the Turkish Sultan had permitted Egypt to administer
during the 19th century, to compensate it for relinquishing its administration
of Crete and not because it was within Egypt's "ancient
boundaries".[7] The whole of Sinai was subsequently appropriated by Egypt
before its exact status under international law could be ascertained, in order
to prevent the emerging Jewish state from claiming or annexing it.
Prime
Minister Menahem Begin erred grievously in 1978 when, during the peace
negotiations with Egypt at Camp David, he did not challenge President Anwar
Sadat's false assertion that Sinai was "sacred Egyptian soil" though
it was nothing of the kind. Begin, the erstwhile champion of the Greater Land
of Israel, let Israel's right to Sinai be lost by default. His
costly blunder and probable violation of law resulted in Israel's complete and unnecessary withdrawal from
Sinai that has had a long and important historical connection with the Jewish
People.
The
foregoing pertinent facts concerning Judea, Samaria, Gaza, Golan and Sinai should have been uppermost in the mind of anyone
given the task to decide whether to apply international law or Israeli law to
these territories. This task was executed by Meir Shamgar, who made the wrong
decision for reasons known only to himself. He was apparently not adequately
familiar with some of the cardinal legal documents in the post World War I
period, which affirmed Jewish legal rights and title of sovereignty to all of
Palestine, as the Jewish National Home, particularly the Smuts Resolution of
January 30, 1919 which became Article 22 of the Covenant of the League of
Nations, the San Remo Resolution of April 25, 1920, the Franco-British Boundary
Convention of December 23, 1920, the Mandate for Palestine confirmed on July
24, 1922 and finally, the Anglo-American Convention of December 3, 1924
respecting the Mandate for Palestine.
What is
even more puzzling and legally very grave, which reflects badly on Shamgar's
reputation as a jurist, was the manner in which he overlooked or neglected two
fundamental Israeli constitutional laws that exclusively governed the post-Six
Day War situation before the enactment two and a half weeks later on June 27,
1967 of Section 11B of the Law and Administration Ordinance. This was not only
stupendously wrong, but also a staggering violation of the Rule of Law. Had he
been more aware of the true significance of these constitutional laws, they
would undoubtedly have steered him in the right direction, or at least warned
him against the application of international law pertaining to the rules of
warfare to the liberated Jewish territories of Judea, Samaria, Gaza, Golan and Sinai. These laws were the Area
of Jurisdiction and Powers Ordinance used in 1948 by Prime Minister David
Ben-Gurion and Justice Minister Pinhas Rosen in applying the corpus of law of
the State of Israel to territories of the Land of Israel beyond the UN
Partition lines, repossessed by the IDF in the War of Independence, as well as
the ubiquitous Law of Return, which entitled Jews to settle in all parts of the
Land of Israel under Israel's expanded jurisdiction.
It is
really dumfounding that Shamgar who was so preoccupied with observing
international precedents and guidelines regarding the procedure to be followed
after the effective conquest of what he perceived was "enemy
territory", failed at the appropriate moment to utilize the leading precedent
established in his own country when, during the War of Independence, additional
areas of the Land of Israel were recovered by the IDF, that were thenceforth
subject to the law of the State. The above facts and precedent were simply
ignored or never even thought of by either Shamgar or any members of the team
of military advocates who participated in his training program.
In
several conversations the present writer has had with the jurist Eliezer
Dembitz, who attended the training courses organized by Shamgar and served as a
Justice Ministry official, as well as a senior legal adviser to the Knesset
Finance Committee, Dembitz has confirmed that, to his knowledge, no one who
attended these courses ever propounded the argument that there was no legal necessity
to apply the laws of war to the territories liberated in the Six Day War. By
his unwise actions calling for and resulting in the application of the norms of
international law to these territories, Shamgar entangled Israel in the morass
and endless dispute about the applicability of the Fourth Geneva Convention and
the Hague Regulations, and moreover, gave credence to the mislabeling of the
territories as being "occupied" and the consequent libeling of Israel
as an "occupier" of "Arab land". This proved to be an
enormous propaganda coup for the Arab cause, while severely undermining Israel's legal argument that the liberated
territories were the patrimony of the Jewish People as enunciated in the
Biblical record and confirmed in several post-World War I documents.
Subsequently,
Shamgar seems to have had some second thoughts about what he had planned and
overseen to fruition. While he concurred in the application of the Hague
Regulations, which he viewed as customary international law that was always binding
on Israel, in regard to the conquest of "enemy territory", he did not
accept the fact that Israel was likewise bound by the Fourth Geneva Convention
since the latter represented conventional international law that the Knesset
had never introduced into Israel's legal system and in any case applied only to
"occupied territories" over which neither Jordan nor Egypt had been
recognized sovereigns with a valid title. Nevertheless, Shamgar's second
thoughts on the subject were of no avail since he had already created the mold
of a military administrative framework that (except in the cases of Jerusalem and the Golan Heights) was never subsequently repudiated or
converted into Israeli civilian administration governed in all cases by Knesset
statutory law.
The
first two proclamations that were issued by Brigadier-General Chaim Herzog, the
future President of the State, regarding the region of Judea and Samaria that
resulted in the application of Jordanian law and drafted[8] by the
Director-General of the Ministry of Justice, Zvi Terlow, based on the
organizational legal guidelines and arrangements compiled by Shamgar in the vade-mecum, are still in effect
in those parts of this region not governed by the "Palestinian
Authority".
The
fact that Israel never incorporated Judea, Samaria and Gaza into the State,
which since 1967, has been viewed by foreign opinion and most jurists in Israel
as "occupied territory", is directly traceable to the Government's
implementation of Shamgar's plan, guidelines and arrangements. The "Manual
for the Military Advocate in Military Government" written and expanded by
Shamgar proves beyond reasonable doubt that he is the one most responsible both
for the establishment of a military government in Judea, Samaria and Gaza and the pernicious notion that Israel is an occupying power. This so bedevils us
today.
The
tragic mistake and violation of law committed by Shamgar has now become
immeasurably worse by two recent Supreme Court judgments,[9] rendered by the
President of the Supreme Court and former Attorney-General, Aharon Barak, who
decided, without reference to any of the aforementioned laws or international
documents that indicated otherwise, that Judea, Samaria and Gaza are indeed
territories held by Israel under "belligerent occupation". Barak, in
his clever, off-the-mark judgments, did not specify the states or people whose
land Israel has been occupying or when such states or
people were recognized under international law as having the sovereign right to
Judea, Samaria and Gaza.
His
judgments which bind the Government of Israel, unless overturned by
legislation, and give great comfort to Israel's enemies and detractors both
within and without, are therefore even more damaging than the non-binding,
non-enforceable advisory opinion of the International Court of Justice (ICJ) in
the case involving the legality of Israel's security fence being constructed in
Judea and Samaria. The Court, sitting in The Hague, established by the Charter of the United
Nations (Article 92) as the principal judicial organ of the UN, in a biased,
legally unsupportable opinion delivered on July 9, 2004, declared the security fence illegal under
a false reading of international law. It disregarded the cardinal fact that the
whole of Palestine was set aside by international law in 1920
and 1922 as the Jewish National Home.
The
relevant documents of international law noted above were either completely
ignored or, in the case of the Mandate for Palestine, while mentioned, its purpose and
principal provisions were not discussed at all. At the same time, the ICJ
recognized the fictitious national and political rights of a fictitious nation
that calls itself "the Palestinians", a term that earlier identified
the Jews of Palestine prior to 1948, and was scornfully rejected by the Arabs
of the country. The ICJ further stated that Judea and Samaria are "Occupied Palestinian Territory" and that Israel has the status of an "Occupying
Power".
This
opinion gives the Arabs a public-relations bonanza, but has absolutely no legal
merit or validity. It reflects only the twisted, baseless views of the Arab
League and the "Palestinian Authority" as well as the dozens of
Islamic nations represented at the United Nations. The ICJ opinion proves how
some respected jurists who had not already committed themselves to favoring the
Arab cause prior to giving their opinion can be hoodwinked into swallowing
nonsensical, illogical arguments, based on irrelevant UN resolutions and data
that lack the force of law in deciding the issue at hand.
Yet
this unconscionable advisory opinion has been praised by none other than the
most revered figure in Israel's judiciary, Aharon Barak, who found that
the ICJ opinion "also contains many things that are favorable to Israel". He added, "I can definitely
see the possibility in the not-too-distant future when the State will base many
of its arguments [apparently concerning the route of the fence] on this
opinion."[10] Never has Shamgar's 1967 folly reached such heights of
absurdity! If Israel's leading jurists treat Judea, Samaria and Gaza as
"occupied territories" and discount Jewish legal rights and title of
sovereignty over them, or believe such rights do not exist at all, little can
be expected from leaders and media figures in foreign countries who have expressed
themselves in a similar manner or have maliciously accused Israel of
"stealing" the land of another people.
The
tremendous legal and political harm which these jurists have caused to the
Jewish legal case cannot be rectified or reversed in a single stroke. However,
a beginning can certainly be made to overcome this damage by having the Knesset
pass a special law declaring that Judea, Samaria and Gaza are definitely not occupied territories, but rather the patrimony
of the Jewish People.
Endnotes
1.
See the volume entitled Military Government in the Territories Administered by Israel 1967-1980: The Legal Aspects, edited by
Meir Shamgar, Hebrew University Jerusalem -- Faculty of Law, Harry Sacher
Institute for Legislative Research and Comparative Law, Jerusalem (1982), Hemed Press, reprinted 1988, pp.
13-60.
2. Ibid., pp. 13, 28, 31.
3.
Shamgar did make one scant reference to "liberated areas" on p. 14 of
his article, but this reference was not explicitly linked to the liberated
areas of the Jewish National Home, but to liberated areas in a broader or
general sense.
4. Ibid., p. 28.
5. Ibid., p. 55, and also p. 453
which contains the Court's Order for Ramat HaGolan (Order 273) issued by the
Military Government.
6.
See Colonel Richard Meinertzhagen's book, Middle East Diary 1917-1956, Thomas Yoseloff, Publisher, New York (1960), pp. 17-19.
7.
See "Myths and Facts 1978, A Concise Record of the Arab-Israeli
Conflict", published by Near
East Report, Washington, DC (1978), pp. 41-42.
8.
The information regarding the drafting of the first two military proclamations
for Judea and Samaria was conveyed to the present writer by
Professor Ya'akov Meron, an accomplished legal expert and jurist who served in
the Ministry of Justice for 30 years as the adviser on Muslim Law in Arab
countries.
9.
See the case of Beit Sourik Village Council v. the Government of Israel, HCJ
2056/04 (rendered on June 30, 2004); see also the case of Gaza Coast Regional
Council v. Knesset of Israel, HCJ 1661/05 (rendered on June 9,
2005).
10. The Jerusalem Post, May 10, 2005.
Howard Grief was born
in Montreal, Canada and made aliyah in 1989. He served as a legal advisor to
Professor Yuval Ne'eman at the Ministry of Energy and Infrastructure in matters
of international law pertaining to the Land
of Israel and Jewish rights thereto. He is a Jerusalem-based attorney
and notary, as well as a specialist in Israeli constitutional law. In October
1993, he wrote the first of several articles denouncing the illegal agreements Israel made with the PLO that appeared in the pages of Nativ and
elsewhere. He is the founder and director of the Office for Israeli
Constitutional Law.
This article appeared
in Nativ, Volume 8, October 2005
(http://www.acpr.org.il/ENGLISH-NATIV/08-issue/grief-8.htm). Nativ is a journal
of politics and the arts. It is published by the Ariel Center for Policy Research (ACPR), which is based in Jerusalem. It can be reached by email at info@acpr.org.il or go to
its website, www.acpr.org.il
Thanks
are due Ted Belman of IsraPundit for bringing this article to our attention.
APPLYING CONSTITUTIONAL LAW TO THE 1967
LIBERATION OF JUDEA, SAMARIA AND GAZA (BIBLICAL ISRAEL)
by Howard Grief
The five letters
presented in the enclosed booklet tell a story of utmost national significance,
about which few have any true knowledge. It is a historical fact that ever
since June 7, 1967, when the IDF overran Judea,
Samaria and Gaza in the Six-Day War, we have wrongly applied international
law to these repossessed areas of the Land of Israel. This resulted from a deliberate National Unity
Government decision that clashed with existing Israeli constitutional law and
with the practice followed in 1948 when other areas of the Land of Israel
were repossessed by the Israeli armed forces. The law wrongly applied at the
close of the Six-Day War was international law as embodied in the Hague Rules
of 1907 and the Fourth Geneva Convention of 1949, both codices being
classified as laws of war, when Israeli constitutional law at the time required the application of the law of the
State of Israel to Judea, Samaria and Gaza.
This
mis-application of law, a step taken by the Eshkol Government on the basis of
erroneous legal advice proffered by the then Military Advocate-General and
future President of the Supreme Court, Mr. Justice Meir Shamgar, who was
responsible for setting up the military administration for the reconquered
areas of the Land of Israel, is the subject-matter of the five letters
published here. It resulted in the pernicious Occupation Myth and provided
our enemies with an enormous propaganda victory in the eyes of the world, for
the term "occupation" implied that Israel had taken over by war the
land of another people to which it had no right under international law, an
absolutely false implication. This widespread myth then received the stamp of
approval from the Supreme Court of Israel, especially from Mr. Justice Moshe
Landau in the Eilon Moreh case and from recently retired President Aharon
Barak in cases dealing with Israel's security fence and the implementation of
the Sharon Disengagement Plan.
The author hopes
that the publication of his letters to Mr. Justice Meir Shamgar, the
originator of the international law thesis that gave direct rise to the
Occupation Myth, despite Shamgar's intentions, will enlighten the public
about the violation of law committed 40 years ago, the effects of which are
felt to this very day. Recognition of this 1967 error is a vital first step
in an attempt to undo the colossal legal damage done to the rights of the
People and State of Israel.
Howard
Grief
Jerusalem
May 2007
|
PRESENTING THE TERMS OF THE ARGUMENT
Jerusalem
11 Heshvan 5766 -- November 13, 2005
The
Honourable Mr. Justice Meir Shamgar
Rehov Shahar 12
Jerusalem 96263
Dear
Mr. Justice Shamgar,
Please
find enclosed a copy of a letter dated November 2, 2005 I have sent to Mr.
Eliezer Dembitz, in which I amplify the point why you were, in my opinion, in
breach of the existing constitutional law when you conceived the plan in the
early 1960s to apply international law, instead of Israeli law, to
re-conquered areas of the Land of Israel and the Jewish National Home that
were placed under military government.
Any
reply you may wish to make would be most welcome and instructive.
Yours truly,
Howard Grief
|
Jerusalem
30 Tishri, 5766 -- November 2, 2005
Mr.
Eliezer Dembitz, Attorney
Jerusalem
Dear
Eliezer,
Concerning
our two conversations on October 31st and November 1st, 2005, I firmly adhere
to my view that on June 7, 1967, when Brigadier-General Herzog issued
Proclamations Numbers 1 and 2 (Proclamation on the Assumption of Power by the
IDF in the Region of the West Bank; Proclamation on Law and Administration),
there was a clear violation of the existing constitutional law, as of that
date. Section 11B of the Law and Administration Ordinance was not enacted until
three weeks later, on June 27, 1967.
The
existing relevant constitutional law that was in force on June 7, 1967,
consisted of the Area of Jurisdiction and Powers Ordinance of September 16, 1948,
made retroactive to May 15, 1948, and the two Proclamations issued thereunder
by the Ben-Gurion Government, namely, the Israel Defense Forces Government in
the Land of Israel (hereafter the Land of Israel Proclamation) of September 2,
1948, made retroactive to May 15, 1948, as well as the Israel Defense Forces
Government in Jerusalem of August 2, 1948 (which I call the Jerusalem
Proclamation), made retroactive to May 15, 1948.
When Israel liberated Judea and Samaria on June 7, 1967, and Gaza on June 6, 1967, the 1948 Ordinance and the two
Proclamations associated with it required the application of Israeli law, not
international law. The application of Israeli law was required even though the
regions were thenceforth governed by a military government, exactly as happened
in 1948. Thus, when Advocate-General Meir Shamgar in the early 1960s decided
long before the outbreak of the Six-Day War to apply international law
concerning what he called "enemy territory" (a strange non-Jewish and
non-Zionist reference to integral parts of the Land of Israel) if and when
Israel acquired such territory, he was in breach of the existing constitutional
law.
Two
questions arise concerning Shamgar's decision to apply international law
instead of Israeli law in the early 1960s, at a time when David Ben-Gurion was
still Prime Minister:
1. Who gave Shamgar the right to violate the
existing constitutional law on the re-acquisition of areas of the Land of Israel in Arab hands?
2. Which government person or persons could
possibly have had the authority to back Shamgar in making this decision to
violate the existing constitutional law?
In the
period from 1961 until June 1963, i.e., the early sixties, when Shamgar
conceived his illegal plan, there was no Eshkol Government, no need to worry
about demography, no pressure on Israel to apply Jordanian law to Judea and
Samaria, which under Jordanian law was called the West Bank, a name
subsequently changed by the Menahem Begin Government to Judea and Samaria. The
only obligation then incumbent upon Shamgar was to obey the existing
constitutional law.
However,
Shamgar acted otherwise, contrary to the vaunted principle of the Rule of Law.
He admitted in the book he edited, entitled "Military Government in the
Territories Administered by Israel 1967-1980, The Legal Aspects" and
published in 1982, that he wrote a comprehensive vade mecum, the Manual for the Military Advocate in
Military Government, in the early sixties, when he was Military
Advocate-General (1961-1968) in which he detailed the laws of war which he
decided should be followed in the next war that he surmised would break out
with the surrounding Arab states. His plan was then implemented several years
later during and after the Six-Day War. For confirmation of this fact, I refer
you to Shamgar's footnotes, numbers 25, 27 and 28 of his article in the
aforementioned book, which he entitled "Legal Concepts and Problems of the
Israeli Military Government -- The Initial Stage", pages 13-60. These
footnotes are found on pages 25 and 27 of his article and are enclosed
herewith.
As a
direct result of Shamgar's conception adopted by the Eshkol Government in June
1967, every person in the world today outside Israel and indeed a very
substantial number of Israel's own population call Judea, Samaria and, until
very recently, Gaza "occupied territories", when they are in truth
integral parts of the Land of Israel and the Jewish National Home under both
Israeli constitutional law and international law, as I have made crystal clear
in several past articles I have written on the subject and in my forthcoming
book, The Legal Foundation and
Borders of Israel under International Law. Shamgar's conception, which
would never have seen the light of day had he abided by the prevailing
constitutional law dating back to Ben-Gurion's day, as was expected of him, has
backfired in the most hideous way: Israel is today seen as a violator of
so-called international law and as an occupying power that has taken over
(stolen!) another nation's patrimony, the so-called "Palestinians", a
term that was formerly reserved for the Jews of the Yishuv (1920-1948) living
in Mandatory Palestine, and not for a fake nation that has no right to this
designation. The entire judicial travesty that Shamgar created has now been
given the imprimatur of truth by none other than Justice Aharon Barak,
President of the Supreme Court, in his recent decisions on Israel's security fence. Barak constantly repeats
the theme in his judgments that Judea,
Samaria and Gaza are governed by the rules of belligerent
occupation under international law, but refrains in a cagey, deliberate manner
from actually calling them "occupied territory", to avoid criticism
or bring undue attention to what he has farcically and incompetently done.
As to
Deputy-President Justice Moshe Landau's decision in the 1979 case of Dwaikat v
Government of Israel (the Elon Moreh case), Landau misstated the legal norm
that was then applicable, in June 1967. In fact, he mixed up two separate legal
norms, one dealing with the imposition of Military Government over re-acquired
areas of the Land of Israel and one dealing with the application of Israeli law and
sovereignty to those areas. The norm of Military Government was indeed applied,
both in 1948 and in 1967, but the other norm, that of Israeli law applying to
the IDF-held areas was disregarded in 1967, in violation of the existing
constitutional law, and replaced by the application of international law. It is
no credit to Landau that at a critical time in the settlement of the liberated territories
of the Land of Israel he continued and endorsed the outrageous violation of law
initiated over a decade and a half earlier by then-Advocate-General Shamgar,
that has since placed Israel in an untenable position making it a
target for worldwide censure.
You
have received two recent articles I wrote on the subject discussed here, one
dealing with the "Origin of the Occupation Myth" (published in Hebrew
in the September 2005 issue of Nativ)
and the other entitled "David Ben-Gurion's Forgotten 1948 Land of Israel
Proclamation for the Annexation of Judea and Samaria" (scheduled for
future publication). To refresh your memory and recapitulate what should have
been legally done on June 7, 1967, after the liberation of Judea and Samaria
from enemy occupation, instead of what was in fact illegally done by the Eshkol
Government, acting undoubtedly on the proffered advice of Meir Shamgar, Zvi
Terlo and others, I summarize the matter as follows:
1. In the first proclamation prepared by the
Military Advocate's Unit for Judea and Samaria formally issued by Haim Herzog,
the Commander of the Israel Defense Forces in this region, dated June 7, 1967,
it was announced to the inhabitants living there that the Israel Defense Forces
have "entered the region and assumed control", meaning that they have
set up a military government there. The establishment of military government
was in accordance with the 1948 Land of Israel Proclamation and the Area of Jurisdiction and Powers
Ordinance, except that it was supposed to have been issued by the Minister of
Defense (Moshe Dayan), not by the Military Commander.
2. In the second proclamation issued by
Herzog, entitled "Proclamation on Law and Administration", the region
over which military government was established was defined in the proclamation as the West Bank, a reference to what the Hashemite Kingdom
of Jordan called Judea and Samaria. In defining this area as the West Bank, Herzog was acting unknowingly in
accordance with the requirement of the Area of Jurisdiction and Powers Ordinance
that said that the IDF held area must be defined by proclamation before the Ordinance
could be implemented. In contrast to the 1967 Proclamation, the 1948 Land of Israel Proclamation did the defining by drawing red lines on an
illustrative map of the Land of Israel, signed and dated by the Minister of
Defense, that accompanied the original proclamation, showing the area held by
the IDF. Without making use of any map, Herzog's proclamation simply described
sparingly the area that was now under IDF control -- the "Region of the West Bank", which in any event was already a
well-defined and well-known area that needed no particular delineation on a map
to identify it. In both cases, defining this area was not discretionary, but
obligatory, otherwise no one would have known that the IDF was in complete
control of the area establishing a military government that replaced the
previous government under Jordanian rule. Without such a proclamation, chaos
and confusion, both at home and abroad, would have prevailed.
It is true that international law does not absolutely require the
issuance of a proclamation, as soon as the territory of a foreign state is
occupied by hostile forces, though it is customary for this to be done.
However, the situation is entirely different under Israeli constitutional law
for areas of the Land of Israel liberated by the Israel Defense Forces that cannot be
labeled "occupied territories" under international law. The Area of
Jurisdiction and Powers Ordinance was enacted for the sole purpose of
recovering for the Jewish State those lands that had been recognized as
integral parts of the Jewish National Home under international law in 1920 and
that had always been considered the patrimony of the Jewish People under Jewish
law. If the IDF achieved this purpose in regard to various regions of the Land of Israel and no proclamation had been issued under
the aforesaid Ordinance, then its very purpose would have been defeated and the
law left with neither meaning nor effect. Moreover, if the Minister of Defense
did not issue a proclamation defining the IDF-held areas, this would have meant
that the Jewish People, represented by the State of Israel, had no sovereign
right to the recovered areas and would have been required in due course to
restore these areas to the Arab states that had illegally occupied them in
1948, a requirement that negated the underlying assumption of the Ordinance
that they belonged to the Jewish People. To avoid these consequences, it was
therefore incumbent upon the Minister of Defense to issue a proclamation under
the Ordinance to define the area of the Land of Israel taken over by the IDF as soon as this
occurred. To underscore this point, this was the way the Ordinance was actually
interpreted and implemented throughout the War of Independence. It seems
logical to conclude that it was the obligatory nature of the Ordinance that
prompted the Eshkol Government in 1967, shortly after the end of the Six-Day
War, to devise an alternative law (Section 11B of the Law and Administration
Ordinance), to give the Government a choice in deciding whether or not to
incorporate into the State the areas of the Land of Israel liberated in that
war.
3. Once the foregoing proclamations
establishing military government in the West Bank region had been issued by
Herzog on June 7, 1967, both the Area of Jurisdiction and Powers Ordinance and
the Land of Israel Proclamation required the application of the law of Israel
to the IDF-held region, which meant its incorporation into the State of Israel.
Instead, the Proclamation on Law and Administration approved by the Eshkol
Government and issued under Herzog's Command as Proclamation No. 2 applied the
local law of Jordan then in force in the West Bank, in accordance with Article 43 of the Hague Regulations, but absolutely contrary to
Israeli law, as already noted. Thus, the wrong source of law was used (Article
43 of the Hague Regulations, rather than the provisions of the Area of
Jurisdiction and Powers Ordinance) and the wrong law applied to the region held
by the IDF (Jordanian law rather than the corpus of Israeli law). The
Government chose this short-sighted course to keep the option of
"peace" open and to avoid increasing the Arab population of the
State, which were considerations outside the realm of law and could have been
resolved by other means. The non-observance of the existing constitutional law
was the folly and root of all the trouble we face today in the battle to
preserve Jewish rights to the Land of Israel under the Rule of Law. Had the Eshkol
Government done what it was legally obligated to do, no one, apart from the
Arab states and their close supporters, would have falsely dared call Judea and
Samaria "occupied territories" subject, after the end of active
hostilities, to the laws of war embodied principally in the Hague Regulations
and the Fourth Geneva Convention. The folly of what was done in June 1967 has
been accepted by the Supreme Court and its underlying raison d'etre has never -- until recently, when
Justice Edmond Levi dissented in the case dealing with the constitutionality of
the Disengagement Implementation Law -- been challenged by anyone in Israel's legal Establishment, based on the merits
of the case.
It is
past time to denounce and renounce what Shamgar and Landau and now Barak have
done to the legal infrastructure that was created in 1948 by the Ben-Gurion
Government regarding the absorption of integral areas of the Land of Israel lying outside the de facto boundaries of the State that were
re-conquered by the IDF. We await a new Government that will overturn the
erroneous judicial decisions rendered by our esteemed jurists that clearly
contradicted Israel's rights to Judea, Samaria and Gaza and other regions of the Land of Israel.
Sincerely,
Howard
Copies
of this letter will be sent to:
1.Professor
Ya'akov Meron
2.Justice (Ret.) Meir Shamgar
3.Justice (Ret.) Moshe Landau
4.Justice Aharon Barak
5.Justice Edmond Levi
6.Military Judge (Ret.) Baruch Koroth
7.Professor Yuval Ne'eman
November 2, 2006. LETTER OCCASIONED BY THE PROPOSED
BUILDING OF A JEWISH CEMETERY ON THE MOUNT OF OLIVES
Howard
Grief
Attorney and Notary
13/2 David Goitein St.,
Pisgat Ze'ev Mizrah, Jerusalem 97782 Israel
Tel. (Fax) : 972-2-656-0085
Jerusalem
11 Heshvan, 5767 -- November 2, 2006
Mr. Justice
Meir Shamgar,
Shahar 12
96263 Jerusalem
Dear
Mr. Justice Shamgar,
I
enclose herewith for your attention and perusal the letter and attached
documents I have sent to the Jerusalem
Post columnist, Mrs. Sarah
Honig, concerning the proposed building of a Jewish cemetery on state land on
the Mount of Olives, situated in the region of Judea and Samaria, the
realization of which was prevented by then-State Attorney Dorit Beinisch, based
on an unfounded legal opinion submitted by Attorney Meni Mazuz, prior to his
being appointed Attorney-General.
This
matter relates directly to your original plan in the early 1960's, long before
the Six-Day War erupted, to treat any area beyond the armistice borders of the
State as occupied territory governed by the laws of warfare. The Eshkol
Government of National Unity accepted your plan in 1967, when Judea and Samaria
were restored to the Jewish People during the Six-Day War, and invoked the
Hague Rules in regard to this region. It was your advice to the Government in 1967,
when you were Military Advocate-General, which created the world-wide belief
that Israel was occupying the land of another country, when in truth this land
(i.e., Judea and Samaria) was the sovereign patrimony of the Jewish People
under both Israeli constitutional law and international law, that devolved upon
the State of Israel upon its establishment. What you did has haunted Israel ever since and started the great divide
between those supporting the concept of the Land of Israel and those opposing it.
When
you launched your plan in the early 1960's, were you not aware that Israel's
first prime minister, David Ben Gurion, aided by Pinchas Rosen, had set up a
constitutional structure for reclaiming all parts of the Land of Israel that
had earlier been transferred or otherwise lost to neighboring Arab states? For
that purpose Ben-Gurion issued two separate proclamations in 1948, one
pertaining to Jerusalem and the other for the rest of the Land of Israel that required the immediate incorporation
into the borders of the State of any area of the Land of Israel conquered and effectively held by the
Israel Defense Forces. These two proclamations were officially called:
1. shilton tsva-hagana le-yisrael
biyrushalayim, minshar mispar 1, nittan ha-yom, kaf-vav be-tammuz 5708 -- Israel Defense Forces Government in Jerusalem, Proclamation No. 1.
2. shilton tsva-hagana le-yisrael
be-eretz-yisrael, nittan ha-yom, kaf-het be-av 5708 -- Israel Defense Forces Government in the Land of Israel, Proclamation No.1 (The Land of Israel
Proclamation).
This is
how places such as Nahariya, Nazareth, Lod, Ramle, Beersheba, Ashdod, Ashkelon, etc. became part and parcel of the State of Israel in 1948, even
though they lay outside the boundaries of the Jewish State recommended under
the United Nations Partition Plan. No special proclamation was needed for these
places, for they all came under the scope and purview of the open-ended Land of Israel Proclamation. This Proclamation was still in force in
1967 and applied directly to the repossessed region of Judea and Samaria, as well as that of Gaza, the Golan and even Sinai. You chose to
ignore this proclamation and, instead of advising the Government to apply the
law of Israel to the redeemed territories in accordance with Ben-Gurion's Land
of Israel Proclamation, you did the very opposite of what was legally required
in the circumstances and advised the application of foreign law in accordance
with Articles 42 and 43 of the Hague Rules, but contrary to Israeli
constitutional law. This advice was wrong, inappropriate and illegal. You have
much to answer for in ignoring Ben-Gurion's Land of Israel Proclamation that applied to the new situation created
by the Six-Day War, just as it had applied previously to the situation created
by the War of Liberation. The damage you have caused to Israel's legal position
in regard to the redeemed regions of the Land of Israel is incalculable and
reverberates to this very day in the minds of Israeli and foreign leaders, as
well as the world's press which maliciously depict Israel as an Occupying Power
of so-called "Arab land".
The day
is late to undo the damage you chiefly are responsible for, but we must try to
save what is left in our possession of patrimonial Jewish lands recaptured in
1967. You would be able to help to save what can still be saved if you were to
issue a public statement restating your position on the legal status of Judea, Samaria and Gaza in conformity with Ben-Gurion's Land of Israel Proclamation. I, as a former legal adviser on matters
affecting Eretz-Israel to the late Professor Yuval Ne'eman whom you knew, and
as a friend of the great jurist Ya'akov Meron whom you know (he is presently
very ill), and as a friend of retired Military Court Justice, Eliezer Dembitz
whom you also know, ask you to consider doing this. However, I make this appeal
to you on my own initiative, without prompting or encouragement from any
person.
A
restatement by you, as I recommend, would do much to change public perceptions,
particularly in Israel, of the true legal status of Judea and Samaria.
Yours
truly,
Howard Grief, Attorney
November 22, 2006. WHY DID SHAMGAR GIVE SPECIAL
COURSES CONTRADICTING ISRAELI LAW?
Jerusalem
1 Kislev, 5767 -- November 22, 2006
Mr.
Meir Shamgar,
President (Retired) of the Supreme Court,
Rehov Shahar 12
96263 Jerusalem
Dear
Mr. Justice Shamgar,
I thank
you for acknowledging and replying in the briefest terms to my letter of November
2, 2006.
I do
not find it instructive when you state that I wrote you:
(1)without a total
knowledge of the facts;
(2)without bothering to check the information beforehand.
It
would have been more enlightening for me had you informed me what the true
facts were in regard to the legal status of Judea and Samaria and the rest of
the territories restored to the Jewish People in June 1967.
I read
your article entitled "Legal Concepts and Problems of the Israeli Military
Government -- The Initial Stage" in the book edited by you called Military Government in the
Territories Administered by Israel, 1967-1980, the Legal Aspects, Volume 1,
published in a reprint edition, 1988, by the Hebrew University of Jerusalem --
Faculty of Law and the Harry Sacher Institute for Legislative Research and
Comparative Law.
In your
article, you confirm the fact that everything was planned in advance as to what
must be done when the IDF entered Judea and Samaria and issued a proclamation for the establishment of the Military
Government in the West
Bank, the name of
which was subsequently changed to Judea and Samaria. The planning for this eventuality took final shape in the special
courses you gave for the Military Advocate's Corps that taught the laws of war
to those who attended your courses. All the material necessary for the
performance of duties by officers of the platoon (regular and reserve) was
contained in a comprehensive vade
mecum, known as the Manual
for the Military Advocate in Military Government, written and published in
the early sixties by yourself, when serving as the Military Advocate General.
This Manual, containing
military instructions and guidelines to be applied to any territory conquered
by the IDF, was re-edited and enlarged by you as a result of the courses you
gave to the officers of the Military Advocate's Corps. All of the foregoing
information was gleaned from your article. That explains why the Israeli
Military Government in Judea
and Samaria invoked the norms and principles of
international law to this single region, rather than Israeli law, as was done
by Prime Minister and Defense Minister, David Ben-Gurion, in 1948 when other
areas of the Land of Israel were conquered by the Defense Forces of Israel.
The
question to be answered is: why did you give special courses teaching the laws
of war when Ben-Gurion had promulgated a law and a proclamation in 1948 to
apply the law of the State whenever areas of the Land of Israel were re-possessed by the IDF? As I asked
you in my letter of November 2, 2006, were you not aware of this law and
proclamation, which were still in force when you were giving your courses? You
never answered this question and it still requires an answer.
Do you
think that in applying the norms and principles of international law, the
Israeli Military Government set up upon your advice did the right thing?
Ben-Gurion, too, set up a military government in 1948 for areas of the Land of
Israel conquered beyond the UN Partition lines of November 29, 1947, but he
never applied the norms and principles of international law that were applied
in 1967.
I have
studied the facts as they have been revealed by you in your article. I do not
know what other facts you are referring to when you say I lack total knowledge
of the situation in trying to understand what happened in 1967. If you would
kindly enlighten me about those facts, I would be very grateful. Of course, if
you truly believed in 1967 that the region of Judea and Samaria had to be governed under the rules of
belligerent occupation, no further explanation is needed!
If you
held the opinion in 1967 that the supposed expectation of Arab demography
overwhelming the Jewish population of Israel and the idea of possible peace
negotiations with the neighboring enemy Arab states prevented absolutely the
annexation of Judea, Samaria and Gaza to the State, then I can fully comprehend
what motivated you in advising the application of the laws of war to these two
regions, instead of Israeli law, as Ben-Gurion did not hesitate to do in 1948.
Of course, I assume that you advised the Eshkol National Unity Government to
adopt this course of action, because it corresponded perfectly with the plan
that you formulated in the early sixties. However, your plan violated existing
Israeli constitutional law (the Area of Jurisdiction and Powers Ordinance;
Ben-Gurion's Proclamation of September 2, 1948) and therefore should have been discarded.
If I am mistaken about this central point and your personal role in this
matter, I stand to be corrected and would very much appreciate your response.
Yours
truly,
Howard Grief
January 9, 2007. WHY HAGUE RULES DID NOT APPLY TO
THE TERRITORY REPOSSESSED IN 1967
Jerusalem
19 Tevet, 5767 -- January 9, 2007
Mr.
Justice Meir Shamgar,
President (Retired) of the Supreme Court,
Rehov Shahar 12
96263 Jerusalem
Dear
Mr. Justice Shamgar,
I
acknowledge, with many thanks, your letter dated December 1, 2006 explaining in
more detail your legal perspective on what had to be done in June 1967
following Israel's victory in the Six-Day War when the IDF took possession of
various areas of the Land of Israel that were not part of the State of Israel.
For
purposes of this letter, I have re-read your article entitled "Legal
Concepts and Problems of the Israeli Military Government -- The Initial
Stage", which only had the effect of confirming what I originally thought:
your great responsibility in introducing to Judea and Samaria and the rest of
the held or re-possessed territories the norms of international law pertaining
to the laws of war embodied in the Hague Rules and the Fourth Geneva
Convention, when this was completely unnecessary and contrary to existing
Israeli constitutional law.
Inasmuch
as you have divided your answer to me into several paragraphs to express
various points of substance, I will follow the same format in presenting my
reply:
1) In
paragraph aleph, you state
that "political decisions in a democratic state are not taken by a
military body but by the Government". In the context of your letter, this
appears to be a misleading statement because the application of international
law to Judea and Samaria on June 7, 1967 was not only a "political
decision", i.e., a matter of policy, but first and foremost a legal
decision, since there existed at the time two constitutional laws (apart from
the very important Law of Return) that directly governed the situation and that
had to be complied with: the statutory law called the Area of Jurisdiction and
Powers Ordinance (hereafter: Ben-Gurion's
law) and the non-statutory proclamation issued under its umbrella by means
of retroactivity, known as the Israel Defense Forces Government in the Land of
Israel Proclamation (hereafter:the Land of Israel Proclamation or, alternatively, Ben-Gurion's Proclamation) of
September 2, 1948. You state in your article (p. 46 of the First Reprint
edition, 1988), that "pending a political solution", the norms that
were applied to the areas not incorporated into Israel were drawn from the rules of international
law. This was the wrong thing to do, because it was the existing constitutional
law that required the application of Israeli law to those areas, and not a political
decision, as you claim in your letter. Pre-existing law always supercedes
policy, and is required to be implemented under the "Rule of Law"
principle. The norms of international law were not applicable to the situation
because those norms were based on the laws of belligerent occupation that were
irrelevant in regard to liberated Jewish territories that were integral parts
of the Land of Israel and the Jewish National Home.
Applying
the Hague Rules to Judea and Samaria in June 1967 meant applying the foreign
law of Jordan. The National Unity Government of Levi
Eshkol acted illegally in following this course, in light of Ben-Gurion's law
and proclamation, but it probably would not have done so, had the Government
been given the proper legal advice by the highest legal officials in the
Ministry of Justice and the Ministry of Defense. Your personal role in all of
this appears critical and extensive. As Military Advocate-General from 1961 to
1968, that comes under the aegis of the Ministry of Defense, you gave special
courses to the legal officers of the Military Advocate's Corps which consisted,
after the Six-Day War, of various units attached to all regional headquarters
of the military government that were set up in Judea and Samaria, Northern
Sinai and Gaza, Central and Southern Sinai and, finally, the Golan Heights. As
stated in your article, the Military Advocate's Unit for Judea and Samaria was organized in three platoons under your
direct command. The express function of the Military Advocate's Unit for Judea and Samaria was to ensure that the military government
of this region conformed to the norms of international law. According to your
own words (p. 44), you
"repeatedly
admonished the Israeli legal authorities serving in the territories not to be
content with the minimum standards laid down by the rules of warfare on land,
but to be alert in ensuring that in any situation not foreseen or not provided
for in the customary rules [of international law, i.e., the Hague Regulations]
the solutions applied should accord with the consistent safeguarding of the
rule of law."
Instead
of admonishing the platoon officers to apply international law as it pertains
to the laws of warfare in Judea
and Samaria, after the re-capture of the region, you
should have admonished them to apply Israeli law in the redeemed Jewish lands
once the hostilities ceased and the region was in the effective possession of
the IDF.
Further
evidence of your personal role in advising the application of the norms of
international law to the redeemed territories was the fact that under your
direction, the legal officers of the platoons were provided with "movable
emergency kits" that contained precedents and forms, guidelines and
instructions for implementing these norms of international law. The kit
contained the manual or vade mecum, which they carried about detailing what
legally had to be done in administering the military government of a particular
region. This manual or ready-reference aid was written and re-edited by you
long before the outbreak of the Six-Day War that required the officers of the
Military Advocate's Corps to advise the Military Commander of the Region to
implement the Hague Regulations and the humanitarian norms or provisions of the
Fourth Geneva Convention. I quote directly from your article on this point (p.
31):
"The Manual
included the full text of the vital initial enactments [of military
government], in Hebrew and Arabic (e.g., Proclamations concerning the
Commencement of Occupation, concerning Law and Order and concerning the Entry
into Force of the Security Code; furthermore, different Orders relating to
security provisions, essential services, jurisdiction in relation to ordinary
criminal offences, etc.) [brackets in the original].
The
above-mentioned "Proclamations concerning the Commencement of
Occupation" -- your actual words -- were, according to your article,
prepared by the Military Advocate's Unit on the entry of the IDF into the
region originally denoted as the "West Bank" (p. 24). This Unit was under the
direct command of the Military Advocate-General, i.e., yourself (p. 25). This
confirms your personal role in overseeing and introducing Proclamation No. 1 on
the Assumption of Power by the Israel Defense Forces in Judea and Samaria, issued on June 7, 1967 in the name of the Commander of Forces of
the Israel Defense Army, General Haim Herzog, as well as Proclamation No. 2 on
Law and Administration. You were therefore instrumental in advising and
convincing the Government of Israel in June 1967 to apply the norms of
international law to all of the territories the IDF entered and took possession
of. Thanks largely to your plan and program, these territories became known to
almost everyone in the world as "occupied territories" instead of
what they actually represented, the restored territories and patrimony of the
Jewish People as originally envisaged by international law and embodied in
various documents subscribed to by the Principal Allied Powers in 1920 and
1922. Your plan and program were implemented by the Government not as a matter
of law, but as a matter of policy, and has haunted the State of Israel ever
since, causing it incalculable damage. This result was brought about by what
appears to be your fixation on applying the norms of international law to
redeemed Jewish territories, that contradicted Ben-Gurion's law and
proclamation. The Government took a political decision, it is true, but it was
not taken in a vacuum. As the evidence shows, i.e., the special courses you
gave, the movable emergency kit with all the material it contained relating to
international law, and your own articles on the subject, the government
decision was based largely on faulty legal advice that was not only terribly
wrong but violated the existing Israeli constitutional law, as noted above.
2) As
regards your allegation in paragraph beth that I overlooked section 11B of the
Law and Administration Ordinance (hereafter: section 11B), as well as section
8A(a) of the Municipalities Ordinance, it brought a smile to my lips for I discussed
these two laws in detail in a 1996 Petition to Annul the Interim Agreement,
submitted on behalf of eight Petitioners to the Supreme Court of Israel (HCJ
3414/96). This Petition was subsequently published in English in booklet form
by the Ariel Center for Policy Research and I am forwarding
you a copy with this letter for your perusal. At the hearing, Judge Mishael
Cheshin informed my colleague, Att. David Heimowitz, that the Petition was too
long to be adjudicated and should be re-submitted in a more concise version, a
request that I accepted. A shorter version was then filed with the Court, but
to no avail, as it was dismissed by a panel of three judges on the ground that
it expressed a "political position". This was the excuse the Court,
including yourself, formulated to avoid judging violations of specific laws but
which also involved the "peace policies" undertaken by the Government
of Israel. The 1995 Interim Agreement with the PLO was replete with
illegalities, which I detailed in the Petition and in a subsequent shorter
version, but the Court refused to consider them and decide the merits of the
case, though it now rushes in to adjudicate military and security matters it
should rightfully abstain from judging. Everything is justiciable, it seems,
except the untouchable "peace process".
In my
letters to you, I did not discuss section 11B and the amended provision of the
Municipalities Ordinance that you refer to, for the simple reason that they did not exist on June 7, 1967 when international law was illegally
applied to Judea and Samaria. It was only, as you point out, on June
27, 1967, three
weeks after the entry of the IDF into the region, that they were enacted by the
Knesset. These laws thus have no relevance in replying to the question why Ben-Gurion's
law and proclamation, which were in force on June 7, 1967, were never invoked. Had that law and
proclamation been duly adhered to by the Government, there would have been no
need to enact section 11B. The enactment of the new law was completely unnecessary
and superfluous. I also wonder who the people were who advised the Government
to enact section 11B, rather than to enforce the existing laws that were
Ben-Gurion's legacy.
3) I am
very puzzled by what seems to be the unfounded distinction you make in
paragraph gimmel between the purpose of the Land of
Israel Proclamation (which I have also called "Ben-Gurion's
Proclamation" in this letter) -- incidentally, the date of its publication
in the Official Gazette is September 3, 1948, and not September 13 as your
typist wrote -- and the purpose of section 11B, as well as the distinction you
make in regard to Ben-Gurion's law (i.e., the Area of Jurisdiction and Powers
Ordinance) between the territory included in the State of Israel and the
territories held by the IDF. In all your articles, I do not find any mention of
the Land of Israel Proclamation, a fact which leads me to believe that you
were unaware of this proclamation at the time you gave your special courses to
the Military Advocate's Corps, beginning in the early 1960s. Unless you
explicitly tell me otherwise, I believe that you only much later gained
knowledge of Ben-Gurion's proclamation. Furthermore, had you known of this
proclamation in the 1960s, you would not, I believe, have advised the application
of the norms of international law in the event that areas of the Land of Israel
were re-possessed by the IDF in any future war, then as yet unforeseen.
I do
not understand how you can say that the territory referred to in Ben-Gurion's
proclamation differs from the territory referred to in section 11B. The Land of Israel proclamation is to be read in conjunction
with Ben-Gurion's law. When the IDF took possession of areas in the Land of Israel in 1948 outside the UN Partition lines,
the held areas were joined to the State by applying the law of the State to
them. Hence the name given to Ben-Gurion's law: "Area of Jurisdiction and
Powers Ordinance" which extended the area of jurisdiction and powers of
the State to the newly possessed areas. There is no reason whatever to
differentiate the "held areas" added to the State under both the Land
of Israel Proclamation and Ben-Gurion' s law from the areas of the Land of
Israel re-conquered in the Six-Day War, both being part of the Land of Israel
and the Jewish National Home and both lying beyond the UN 1947 Partition lines.
Your distinction between two different kinds of territories, one relating to
Ben-Gurion's law and proclamation and the other to section 11B, never existed
at all.
While
there is no difference between the 1948 held-territories of Ben-Gurion's law
and the re-conquered Land of Israel territories of 1967 to which section 11B was meant to
apply, each of these laws can be characterized as laws of annexation in regard
to the Land of Israel. Yet there is a definite difference between the procedures
or methods used in applying the laws themselves. In the case of Ben-Gurion's
law, the decision to join the "held areas" to the State is made by
the Minister of Defense on behalf of the Government, while in the case of
section 11B, the decision is made not by one minister alone, but by the
Government as a collective body. Moreover, the principal difference is that
once the IDF effectively holds an area of the Land of Israel under Ben-Gurion's
law, it must indicate that fact in one of two ways: either (a) by marking the
held area in red on a map, accompanied by the signature of the Minister of
Defense and the date thereof; (b) by simply applying the law of the State to
the "held area", without the necessity of marking that area on a map.
In the case of section 11B, in contrast to Ben-Gurion's law, the Government has
a choice whether or not to issue an order to extend the law, jurisdiction and
administration of the State to any area of the Land of Israel repossessed by the IDF.
In
regard to the meaning of shetah
muhzak (or any variation
thereof) as used in both the Land of Israel Proclamation and Ben-Gurion's law
and the term shetah kavush,
I refer you to the legislative debate that took place on September 16, 1948
between the Minister of Justice Pinhas Rosen (then called Felix Rosenblueth)
and Zerah Wahrhaftig, of the Ha-Po'el Ha-Mizrahi party (later the National
Religious Party) -- see pp. 49-54 of the enclosed Petition to Annul the Interim
Agreement (see also "Proceedings of the Provisional State Council, Sitting
18, Sept. 16, 1948, pp. 7-8). Shetah
muhzak, before being corrupted by mis-translation, referred to an area of
the Land of Israel held or recovered by the IDF in 1948-1949,
that was located beyond the UN Partition lines or not included in the State
when it was proclaimed on May 14, 1948. Shetah
kavush, on the other hand, refers to "occupied territory" or
foreign territory under the sovereignty of another state and not part of the Land of Israel. In his great wisdom, the then-Minister of
Justice, Pinhas Rosen, created a subtle distinction between the two terms that
was unknown or almost unknown in international law, but that important
distinction was subsequently spoiled by the mis-translation of shetah muhzak into English, not as "held
territory" or "repossessed Land of Israel territory", but as
"occupied territory", thus making it synonymous with shetah kavush and eliminating the distinction
altogether. Had the Eshkol Government kept this very fine and vital distinction
(between shetah muhzak and shetah
kavush) in mind in June 1967 and had most people in Israel not called both
of them "occupied territory" and had
the government received proper legal advice, it would not have decided to
apply the norms of international law to the liberated Jewish territories of the
Land of Israel, but rather the law of the State of Israel, as Ben-Gurion under
Pinhas Rosen's advice so wisely did in 1948.
Regarding
your point that the map attached to the Land of Israel Proclamation indicated only Lod and Ramlah and did not
show other areas in the Land of Israel that were in possession of the IDF, this,
in my opinion, does not prove that Lod and Ramlah were the only areas to which
Ben-Gurion's proclamation applied. The Proclamation and map were only issued
and attached to each other on September 2, 1948. All areas captured by Jewish forces,
excluding Jerusalem, before this date, that were part of the Land of Israel but
outside the U.N. Partition lines, such as Jaffa (captured May 13, 1948), Acco
(captured May 17, 1948 after a Hagana onslaught that began 4 days earlier, that
gave Israel tentative control of Acco and caused most of its Arab inhabitants
to flee) and Nahariya in western Galilee (captured in May 1948 after the fall of
Acco), would not have been included on a map delineated in red, signed and
dated by the Defense Minister, when those areas had already become integral
parts of the State of Israel by the immediate application of Israeli law. It
would have been redundant to do so. Most of western and southern Galilee,
destined for the proposed Arab state under the UN Partition Plan, was taken by
Jewish forces between May and July 1948, including such places as Hanita and
nearby villages, as well as Yehi'am, Zippori (Sepphoris) and Nazareth. These
areas, located in the proposed Arab state, as also in the cases of Jaffa, Acco
and Nahariya, were all included in the State of Israel, not by marking their
location on a map as provided for in Ben-Gurion's proclamation, but, as already
noted, by applying the law of the State to them, as provided for in
Ben-Gurion's law. In this matter, due attention must be paid to the fact that
once Ben-Gurion's Proclamation was issued on September 2, 1948, it was
open-ended in nature and therefore applied to all areas -- apart from Jerusalem
and its environs -- of the Land of Israel then not part of the State of Israel,
without specifically naming these areas in compliance with Ben-Gurion's law
which required a proclamation to be issued to define the area of the Land of
Israel being held by the IDF.
Ben-Gurion's
proclamation also provided for supplementary maps for areas of the Land of
Israel held by the IDF after September 2, 1948 (see Article 1 of the
Proclamation as regards its Interpretation, and Article 5 dealing with the
validity of the Proclamation), a situation which would have applied to
Beersheba (captured Oct. 21, 1948), Ashkelon (Majdal -- captured in October
1948 from the Egyptian army), Ashdod (Isdud -- captured in October 1948 after the
Egyptian forces were cut off and the local Arabs left) and Eilat (Umm Rashrash,
taken by Israel on March 13, 1949, and originally included within the UN
Partition lines). Ben-Gurion's law and proclamation were definitely in force on
June 7, 1967, which meant that Judea and Samaria, Gaza, the Golan Heights and
the Sinai Peninsula (assuming it is part of the Land of Israel, as Ben-Gurion
believed in 1956), should have been automatically incorporated into the State.
That was the law, and that was not done. The Government of Israel has violated
the sacred "Rule of Law" ever since.
Incidentally,
I have twice written to the Ministry of Defense in Tel-Aviv to obtain the map
or maps referred to in Ben-Gurion's Proclamation of September 2, 1948. They sent me a copy of the map attached
to the Jerusalem Proclamation of August 2, 1948 but could not locate the map or maps
attached to the Land of Israel Proclamation of September 2, 1948. If you have the citation for obtaining
the latter map, I would greatly appreciate getting it from you, to enable me
obtain this map.
4)
There is no disagreement as far as paragraph daleth is concerned, relating to the
Jerusalem Proclamation of August 2, 1948, that was also promulgated by Prime
Minister and Defense Minister David Ben-Gurion.
5) In
paragraph heh you mention your position about the
inapplicability of the Fourth Geneva Convention. Though you hold this position
in theory, you as a judge -- and the Government as a matter of policy --
actually implemented the humanitarian provisions of the Fourth Geneva
Convention in practice, especially its penal provisions. There seems therefore
to be a great contradiction between what you profess to be the situation in law
and what you actually did in conforming to the Convention during your terms of
office as Military Advocate General, Attorney-General and Supreme Court
Justice. In fact, it would have served no purpose for you to give courses on
the Fourth Geneva Convention in anticipation of a possible war and also have
the Convention included in the movable emergency kit of each platoon officer in
the Military Advocate's Corps -- if you, as the superior in charge, did not
think that the Convention applied. Why prepare these legal officers regarding
the ins and outs of the Convention if it was inapplicable to the regions of the
Land of Israel? Your action in this regard seems to place
a heavy cloud over what you say in your letter.
You
were meticulous in assuring the rights of Arabs in the held or repossessed
territories and in urging the Government to grant them a right of appeal to the
Supreme Court, even though such rights have never been granted to enemy aliens
in the courts of other countries. You were so concerned with the observance of
the Geneva Convention de facto and applying the norms of international law, but
at the same time you did not express any special concern about preserving the Land of Israel for the benefit of the Jewish People.
Where was your empathy for the Jews who wished to re-establish vibrant Jewish
life in the areas of the Jewish National Home, the cradle of the Jewish nation?
Instead of showing such empathy, you applied international law which, for all
intents and purposes, viewed the land on which the Jews settled to be
"occupied Arab land" because the law of the previous ruler was still
in force -- in conformity with Article 43 of the Hague Rules and Article 64 of
the Fourth Geneva Convention -- the international law that you seem to have
proudly advised the Government to adopt when the IDF entered Judea and Samaria and
issued Military Proclamation No. 2.
To my
thinking, it should have been inconceivable or repugnant for you as a former
member of the underground movement in pre-State Israel, the Irgun Zvai Leumi,
who supposedly was not hindered by a ghetto mentality, to be so ready to honour
the Arabs of Judea and Samaria, who wanted nothing more than to destroy the
Jewish State, by gratuitously applying to them the norms of international law
so that they were thus able afterwards to protest vociferously the settling of Jews
in this region as being "illegal" and to denounce Israel's so-called
"occupation" of "their" land. By applying the Convention to
the local Arabs, they were also empowered to claim the status of
"protected persons" under the Convention, and this in turn allowed
the International Committee of the Red Cross and the hostile United Nations to
monitor their treatment and intervene in Israel's domestic affairs. Your judicial legacy,
as well as that of your colleagues, Justices Landau and Barak, is the protection
you accorded the Arabs of this region rather than upholding the rights of the
Jewish People in the whole of the Land of Israel. By urging the application of
international law to Judea
and Samaria, and then endorsing it as a judge, you
prevented the unification of the Land of Israel under de
facto Jewish sovereignty
insofar as Cisjordan is concerned.
These
are simple truths that you and your fellow justices on the Supreme Court should
be truly remorseful for. You undoubtedly and understandably do not like to hear
or read what I have to say on this subject, but this is the terrible end result
of what you and your colleagues on the bench caused the people of Israel and their country -- that embraces not
merely the State of Israel, but the wider Land of Israel.
6) In
paragraph vav of your letter, you seem to take
liberties with Ben-Gurion's view of retaining Judea and Samaria when you state that he expressed his
"clear opinion" in a television interview in the wake of the Six-Day
War. That "clear opinion" was that we should give up all the held
territories in return for peace, except for Jerusalem. This was not only Ben-Gurion's position
at the time, but that of most members of the Eshkol Government, weary of war
and expressing a great yearning for peace with the surrounding Arab countries
which were still intent on wiping Israel off the map, as you well noted in your
article. The Ben-Gurion quotation you cite was nothing more than a pro forma mantra or sacred incantation
equivalent to a daydream, that was prevalent among members and supporters of
the Labour Alignment after the end of the Six-Day War and before the Arab
Summit Conference held in Khartoum on September 1, 1967, which dispelled the
idea that the Arab states truly wanted peace with Israel.
Ben-Gurion
uttered this opinion when he was no longer active in public life and had
already begun to fall ill, according to what the late Professor Yuval Ne'eman,
who knew him well, told me. On other occasions, he expressed a diametrically
opposite opinion, once in 1937 and once again in 1956. In 1937, at the 20th
Zionist Congress (August 3-16, 1937, Zurich), he gave a speech at Basel in commemoration of the first Zionist
Congress which had taken place there in 1897, where he said in part:
No Jew is entitled
to give up the right of establishing (settling) the Jewish nation in the Land of Israel. No Jewish body has such power. Not even
all the Jews alive have the power to cede any piece of land or part of the
homeland. This is a right vouchsafed or reserved for the Jewish Nation
throughout all generations... Our right to the whole of this country is valid,
in force and endures forever.
In
1948, when Ben-Gurion became Prime Minister of the State of Israel, he provided
for the eventual expansion of the boundaries of the State to encompass all of
the Land of Israel by having the Provisional State Council
enact the Area of Jurisdiction and Powers Ordinance and by issuing the Land of Israel Proclamation. Ben-Gurion's strong stance on
Eretz-Israel in 1937 was thus followed by equally strong legislative action
when the Jewish State came into being.
On November
7, 1956,
Ben-Gurion delivered an address to the Knesset which is sometimes called his
"Third Kingdom of Israel" speech, although he did not use those
actual words. In that speech, coming after the capture of the Sinai Peninsula in a seven-day campaign code-named
Operation Kadesh, Ben-Gurion stated clearly and repeatedly that Israel had not attacked the land of Egypt. He did not consider Sinai to be a part of
Egypt and he intended to annex Sinai and Gaza to Israel, as well as the
adjoining islands of Yotvata (Tiran) and Sanafir in the Red Sea where,
according to the 6th century Byzantine historian, Procopius, a Hebrew state had
existed for many centuries, until it was destroyed by the Eastern Roman Emperor
Justinian. If Ben-Gurion thought that Sinai and Gaza should be part of the
State of Israel -- and this, according to Professor Ne'eman, is what he thought
before U.S. and Russian threats forced him to retreat from his stated view on
November 7, 1956, a fortiori he would have never given up Judea and
Samaria had he been Prime Minister and in vigorous health in 1967. More likely,
he would have applied Israeli law and not international law to the newly
recovered Jewish territories, just as he did in 1948.
As I
write this letter, the former long-serving Mayor of Jerusalem, Theodor (Teddy)
Kollek, has passed away. In reading his obituary, I noticed a striking parallel
between the position he held for many years in regard to Jerusalem but which he subsequently abandoned in
retirement and the position Ben-Gurion held for many years in regard to the Land of Israel, but subsequently abandoned in retirement.
While in office, Kollek vowed that Jerusalem would always remain united under Israel's sovereignty, but seven years after
losing the mayoralty race to then Likud M.K., Ehud Olmert, Kollek astonishingly
supported Prime Minister Ehud Barak's plan to re-divide Jerusalem during the Camp David Summit in 2000. This
switch of opinion by Kollek corresponds in nature to what Ben-Gurion admittedly
did when he advocated giving up all of the liberated territories of the Land of Israel in 1967 to achieve peace with Israel's Arab enemies, completely contrary to
what he had always advocated.
Despite
Ben-Gurion's change of heart in 1967, I prefer to think of him as a pragmatic
exponent and loyalist of the Land of Israel who was loath to surrender any part
of the Land of Israel unless compelled to do so under duress, as occurred in
1956 immediately after the capture of Sinai and Gaza. John Foster Dulles, the
then-U.S. Secretary of State, threatened to cut off all financial aid to Israel, from all sources, in addition to having Israel expelled from the United Nations. Russia threatened to attack Israel with nuclear weapons. Under these ominous
circumstances, involving the opposition of two super-powers, Ben-Gurion thought
it was more prudent to retract his stated views and thus agreed to return Sinai
and Gaza to Egypt. However, Ben-Gurion did not do what Prime
Ministers Menachem Begin and Ariel Sharon did later. Begin, acting on the
belief that Sinai was not part of the Land of Israel, voluntarily parted with this territory
that historically is connected more with the Land of Israel than with the Land of Egypt. In the case of Sharon, he unilaterally
abandoned an integral part of the Land of Israel to the Arab side, and evilly
uprooted about 9,000 Jews from their homes and farmsteads -- an act that I
believe fits the definition of treason under Article 97(a) and 97(b) of the
Penal Code.
I wish
to conclude my letter by referring to the 1979 landmark case of Dvikat (or
Dwaikat) v. Government of Israel et
al., famously known as the Elon Moreh case, that you favourably cite in
your article. This judgment, rendered by Deputy-President Moshe Landau, is a
judicial travesty directly traceable to your doorstep, that serves today as a
pillar for labeling Judea and Samaria as "occupied territories" under
international law. While this judgment does mention the Area of Jurisdiction
and Powers Ordinance, 1948, it betrays complete ignorance of the Land of Israel Proclamation that is governed by this Ordinance, issued
for the purpose of extending the boundaries of the State to those parts of the Land of Israel theretofore not included in the State.
Justice Landau's lack of knowledge of this proclamation led him to reach
untenable conclusions about the legal status of Judea and Samaria which persist to this day. Justice Landau
based his conclusions on the fact that Israeli law has never been applied to Judea and Samaria, not realizing that such a step was
legally required under the precedent of the Land of Israel Proclamation and Ben-Gurion' s law. He relied on the
two Military Proclamations actually issued on June 7, 1967 by Brigadier-General Haim Herzog which, he
thought, exclusively determined the legal status of Judea and Samaria. Those proclamations were based upon and
inspired by the precedents and forms you drafted and published in the Military
Manual or vade mecum given to all the legal officers in the Military Advocate's
Corps. In his judgment, Justice Landau admits that in deciding the Elon Moreh
case, he relied on the sources of customary international law (the Hague
Regulations) and two aforementioned Military Proclamations to determine the
legality of the military order requisitioning private Arab land on which the
new settlement was to be built. That would have been the proper procedure if it
could be correctly assumed that Judea and Samaria were indeed "occupied
territories", within the ambit of Articles 42 and 43 of the Hague
Regulations, but that was never the case since these territories are and have
always been integral parts of the Jewish National Home, in regard to which
Jordan was an illegal occupier and enjoyed no recognized sovereignty under
international law. I found it extraordinary to read Justice Landau's comments
(pp. 421-422 in Appendix A of your book) that the right of the Jewish People to
establish settlements in Judea and Samaria rests, not on any law he strongly
intimates, either internal law or international law, but rather on
"Zionist doctrine" or ideology. Did Justice Landau never hear of the
Law of Return enacted on July 5, 1950, which overrides the Hague Regulations
that permit requisition of land only for military needs. The Law of Return and
Article 6 of the Mandate for Palestine sanction Jewish settlement not merely on
land located in the State of Israel, whether publicly or privately owned or
simply ownerless, but also in the rest of the Land of Israel, outside the
State's boundaries, in IDF or Jewish possession, as indicated by use of the
Hebrew word artza in section 1 of the Law of Return and
also by what Ben-Gurion said in personally introducing this law in the Knesset
on July 3 and July 5, 1950. When Ben-Gurion explained that every Jew has the
right to come and settle in Israel, he certainly did not mean to limit this
right to the existing boundaries of the State of Israel, otherwise the Law of
Return, read in conjunction with the Area of Jurisdiction and Powers Ordinance
and the Land of Israel Proclamation, would have made no sense nor served any
purpose. When Ben-Gurion further said that this right was recognized in the law
of nations and existed even before the State did, and was, in fact, that which
built the State, he undoubtedly had in mind Article 6 of the Mandate for Palestine and the unbroken historical link of the
Jewish People with the Land of Israel throughout the ages. How then was it possible for Justice
Landau and the other judges who concurred with his opinion in the Elon Moreh
Case to overlook the Jewish right of return to the Land of Israel as embodied in the Law of Return and say
that this right of Jewish settlement rested solely on "Zionist
doctrine" or ideology? What utter nonsense that shamefully ignores or
renders inoperative the Jewish right to settle the Land of Israel! This half-truth of Justice Landau amounts
to judicial misfeasance.
The
recently retired President of the Supreme Court, Justice Aharon Barak, has
proceeded along the same path as Justice Landau and gone even further, basing
several of his recent judgments on the false premise that Judea and Samaria are
governed by the rules of belligerent occupation, including the Fourth Geneva
Convention and even the Geneva Protocols of 1977, which eradicates the rights
of the Jewish People and its assignee, the State of Israel, to Judea, Samaria
and -- formerly -- Gaza. This I stress and repeat is the dire consequence of
your original plan and program to apply the norms of international law to the
areas of the Jewish homeland lying outside the technically temporary borders of
the State. I have written to Justices Landau and Barak in the same vein that I
wrote to you, even sending Justice Landau a copy of Ben-Gurion's Proclamation,
but neither he nor Justice Barak have bothered to respond or even acknowledge
my letters.
With
all due respect to you as a learned and eminent judge and jurist, I ask you
once again in all earnestness to reconsider and restate your position on the legal
status of Judea and Samaria, even at this extremely late date. If you
wish to make amends, at least in part, for the incalculable damage you have
caused in advising and urging the application of international and foreign law
to Judea and Samaria instead of Israeli law, what you can now do is to renounce
the position you adopted previously as to which law ought to have been applied
to Judea and Samaria in 1967. Had the proper decision been taken back then by
the Eshkol Government, it is reasonable to assume that Israel would not have been subjected in later
years to all of the international pressure to "return" so-called
"Arab land" to its "owners". For the sake of future
generations, I ask you to recant your earlier position and correct the
aberration of 1967 that led to the application of the Hague Rules and Geneva Convention to Judea and Samaria.
In
closing, I may not know, as you state, all the facts of inner government
workings and decisions that took place in 1967 as I was not privy to them, as
you were. Your reproach that I also lack knowledge of the relevant law to
support my position is refuted, as can be judged by this letter and my
published Petition. Anyone, like myself, who has observed and studied the
results of what was done by the decision-makers of that time can only gasp in
disbelief at the errors and violations of law that were made at the highest
levels. Instead of following Ben-Gurion's wise and patriotic path as expressed
in the laws he was responsible for enacting in 1948 and 1950, that embraced the
Land of Israel as the eternal treasure and patrimony of the Jewish People, the
Eshkol Government and you included appear to have embraced a non-Zionist,
bizarre and illegal policy to treat the Land of Israel as part of foreign
territory, the rights to which were viewed, in the eyes of most people in the
world, as being vested not in the Jewish People but in Arab pretenders. This
shame must be expunged, and you, who inspired the application of international
law to liberated Jewish territories, are the one person who can make that
happen!
Yours
truly,
Howard Grief
February 27, 2007. APPLYING ISRAELI LAW TO AN AREA OF
ERETZ-ISRAEL MAKES SUCH AN AREA AN INTEGRAL PART OF THE STATE OF ISRAEL
Howard
Grief
Attorney and Notary
13/2 David Goitein St.,
Pisgat Ze'ev Mizrah, Jerusalem 97782 Israel
Tel. (Fax) : 972-2-656-0085
Jerusalem
9 Adar, 5767 -- February 27, 2007
Mr.
Justice Meir Shamgar,
President (Retired) of the Supreme Court,
Rehov Shahar 12
96263 Jerusalem
Dear
Mr. Justice Shamgar,
I thank
you for your letter of January 21, 2007, and for the time you have evidently
taken to present further explanations and elaborations of your position in
regard to the exact meaning of the Area of Jurisdiction and Powers Ordinance of
September 22, 1948 (hereafter: the AJPO) and the proclamation validated by the
AJPO, namely, Proclamation No. 1 of the Israel Defense Forces Government in the
Land of Israel, of September 2, 1948 (hereafter: the Land of Israel
Proclamation). I sharply disagree with your interpretation of these two
constitutional enactments by the Provisional State Council and hereby provide
you again with my own exposition as to their true meaning and import.
My
first disagreement with you centers on your argument that the "area of
application of law" is not the same as "an area within the State of
Israel". This distinction of yours harks back to an old legal controversy
that has been dealt with in the case-law of the Supreme Court and the legal
literature. Please see the excellent article pertaining to this controversy in
regard to the Golan Heights Law of December 14, 1981 and the Law and
Administration Order (No. 1), 5727-1967, in regard to eastern Jerusalem,
applying Israeli law to both these territories -- written by Professor Asher Maoz
of Tel-Aviv University, Faculty of Law (Asher Maoz, "Application of
Israeli Law to the Golan Heights is Annexation", Brooklyn Journal of International
Law, 1994, Number 2, pp. 355 to 396). The opposite view is taken by
Professor Leon Sheleff in an adjoining article ("Application of Israeli
Law to the Golan
Heights is not
Annexation", op. cit., pp. 333 to 353).
The
distinction that you cite between the "area of application of law",
which is the heading of section 1 of the AJPO and the "area of the State of
Israel" was explained by the Minister of Justice, Pinchas Rosen (then
Felix Rosenbleuth), in the legislative debate on the AJPO that took place on
September 16, 1948 (the 12th of Elul, 5708), at the 18th Session of the
Provisional State Council. Here is what Rosen said about this law (in English
translation):
"By virtue of
this law, we are setting up a kind of administrative unity by creating a
concept which is in the nature of a legal fiction, which is 'the whole of the
area' -- ha-shetah ha-kolel,
-- also to be translated as "the over-all area" or "the
comprehensive area" [defined as] an area including both the area of the
State of Israel and the re-possessed area or the held area [please note: I
translate the Hebrew term ha-shetah
ha-muhzak as either the
"re-possessed area" or "held area"; the "re-" as
used in "re-possessed" means that that area of the Land of Israel was
part of the Jewish National Home that was restored to the Jewish People and the
State of Israel; for the same reason I use the word "re-conquered"
and never "conquered" to refer to the territories restored in 1967].
And this law states that a person appointed to any position [or office],
meaning principally a central or high position -- le-tafkid merkazi -- who is located in the area of the
State, will be competent to act also in the re-possessed (held) area. Were it
not for this law, doubts might arise, whether, for example, the
Attorney-General is able to institute lawsuits and criminal complaints in Nazareth or Jerusalem. Were it not for this law, the question
could arise, whether there is a direct appeal from the District Court in Jerusalem to the Supreme Court of the State, which
commenced a few days ago.
For the
purpose of clarifying the situation and for removing all doubts, we have found
it proper, and the Legislation Committee has approved this position, to propose
to the [Provisional State] Council this Ordinance..."
Further
on in the legislative debate, Pinchas Rosen replied to a proposed amendment
made by Zerah Warhaftig of the Ha-Po'el Ha-Mizrahi party, who asked that the
words in sections 1 and 2 of the AJPO, i.e., "the area including both the
area of the State of Israel and also any part of Palestine [Eretz-Israel],
etc." be deleted and replaced by the words "any law applying to the
whole of the State of Israel shall be deemed to apply to any part of Palestine
[Eretz-Israel] which the Minister of Defense has defined by Proclamation as
being held, etc.". Warhaftig's proposed amendment was rejected by Rosen
and the Provisional State Council, on the ground that the Land of Israel
Proclamation of September 2, 1948, issued two weeks before the discussion on
the AJPO took place, said exactly what Warhaftig was proposing and therefore
there was no need to repeat the same thing in the law. Rosen added the
following comment concerning the need to enact the AJPO:
...For purposes of
administration and law, there is a need for an innovation regarding what was
said in the Proclamations [these Proclamations to which Rosen referred were the
Jerusalem Proclamation of August 2, 1948 and the Land of Israel Proclamation of September 2, 1948, both of which were validated by the
AJPO]. There is a need to create the concept of an area, which includes the
held area -- ha-shetah
ha-muhzak -- and the area of
the State -- hetah ha-medina.
From
the foregoing two quotations of Pinchas Rosen, we learn the real reason why an
apparent distinction was made between the "area of application of
law" and the "area of the State". It was for the purpose of
creating a uniformity of law as well as an administrative unity between these
two areas. The totality of the two areas -- described in the AJPO by the term
"the whole of the area" -- was, according to Rosen, a "legal
fiction", an "innovation" or a new legal "concept".
This concept of the "whole of the area" covered not only the area of
the State of Israel allocated in the U.N. General Assembly Partition Plan of
November 29, 1947, but also part of the area that was intended for inclusion in
the proposed Arab State but was re-possessed by the IDF in the War of
Independence, to which was also added the city of western Jerusalem and its
approaches. This new concept was, in my opinion, a "sleight of hand",
or clever deception to mislead the U.N. by feigning compliance with the
Partition Resolution that the Jewish Agency had accepted before the State was
proclaimed. By phrasing the AJPO in this way, it gave Israel deniability that it was not violating this
Resolution, but was merely applying Israeli law to create administrative unity
between the area of the State of Israel, the borders of which were those
proposed in the Partition Resolution, and the areas re-possessed by the IDF.
But in applying Israeli law to these areas what was the practical and legal
result? The re-possessed areas to which the AJPO applied were henceforth
included in the borders of Israel even though this was not explicitly stated
in this law. That is how western Jerusalem and Nazareth came to be included in the State and, as
will be documented more fully below, this is the case with all other parts of
the Land of Israel that came into the possession of the IDF
as well. Justice Minister Rosen was at pains to deny that the new legislation
contained political ramifications which could be interpreted as violating the
Partition Resolution.
If we
are to accept your interpretation of the AJPO and the two proclamations of
August 2, 1948 and September2, 1948 that the application of Israeli law to any
area of the Land of Israel outside the U.N. Partition line was not equivalent
to making that area a part of the State of Israel, then western Jerusalem and
its approaches would not have been part of the State as soon as it came under
Israel's full control. Nor would Jaffa have become part of the State. Nor Nazareth. Nor Lod nor Ramla. Nor Beersheba. Nor Ashkelon and Ashdod. You would then be faced with the
unsolvable question of what the legal status of these areas was after Israeli
law and administration was applied to them. Certainly, such areas were then
regarded as within the purview of the State and no one will contest that fact.
As I said in my last letter to you, these areas of the Land of Israel and the Jewish National Home became part
of the State by either of two methods:
1. by marking a map of the Land of Israel in red
with the names of the re-possessed areas, as was done in the specific cases of
Jerusalem, Lod and Ramla, in conformity with the method set out in the
Jerusalem Proclamation and the Land of Israel Proclamation;
2. by application of the law of the State to the
repossessed area, without delineating this area on a map of the Land of Israel,
as also provided for in the aforementioned Proclamations, as well as in the
AJPO. Concerning this method, I venture to say that the words "defined by
proclamation" -- asher
sar ha-bitahon higdir otan be-minshar ke-muhzak 'al-yedei tzva-hagana
le-yisrael -- as appears in
sections 1 and 2 of the AJPO are a direct reference to any past (the two
proclamations already issued) or future proclamations applying the law of the
State to the held areas wherever situated in the Land of Israel beyond the U.N.
Partition line.
The
phrase "area of application of law" was a euphemism or semantic
invention to conceal the fact that the repossessed areas were being annexed to
the State of Israel. The name of the law -- the AJPO -- did not reflect its
true purpose. It was really intended to be a law of annexation, as proved by
the result that followed its implementation, but was adroitly drafted by Rosen
and his team in the Ministry of Justice as a law to extend Israel's "Area of Jurisdiction and
Powers". If Rosen and his associates had not been deceptive, and refrained
from using convoluted language, he would have called this law by a far more
suitable name: a law of annexation, or a law to extend the borders of the State
to encompass all areas of the Land of Israel re-possessed by the I.D.F.
Applying
the law of the State to an area not previously included within it is certainly
an act to assert sovereignty over that area, or, as Justice Haim Cohn called
it, "an act of state" (quoted in the article by Professor Maoz, p.
361, footnote 31; see also p. 369, footnote 71). The consequence of this act of
sovereignty is to join that area to the State of Israel. According to Justice
Cohn (as quoted by Professor Maoz):
Both the
proclamation of the Minister of Defense according to the Order issued in 1948
and the order of the government according to the law passed in 1967, are both
acts of state par excellence,
and as such require prior consideration as well as a political decision, for
both of the actions were intended to convert the areas to which they related
into part of the area of the State of Israel.
The
citation for Justice Cohn's statement is given by Professor Maoz as: The Status of Jerusalem in the Legal
System of the State of Israel, 1967-1987, at 246, 249 (Joshua Prawer &
Ora Ahimeir, eds., 1988), reprinted in 1 HAIM H. COHN SELECTED ESSAYS 361
(1991).
An act of state is
defined as an assertion of sovereign power by the Government on the international
level, and this is exactly what occurred when Israel applied its law to the held areas. That
naturally had the effect of incorporating these areas into the State as soon as
they became subject to Israeli law.
Justice
Cohn had apparently changed his mind on this subject, for in an earlier
statement he made in the case of Ravidi v. Military Court, Hebron Zone, [24] 2
P.D. 419 (1969), he stated:
the thesis that
the application of Israeli law to a particular area, is equivalent to the
annexation of the area to the State of Israel still requires proof. In the
Justice's opinion "there is ...nothing to prevent the application of the
law of Israel to the occupied territories even in the
absence of any intention to annex them to the area of the state."
What
Justice Cohn said in the Ravidi case in 1969 would agree with your own
distinction, but what he later said in his above-quoted article in 1988 agrees
with my opinion that annexation is the legal result of applying Israeli law to
an area of the Land of Israel that was previously outside the borders of the State.
In this
regard, Professor Maoz also cites the statement of Justice Yitzhak Kahan in the
above-noted Ravidi case as to the consequence of the government order under the
Law and Administration Order (No. 1), 5727-1967 applying Israeli law to eastern
Jerusalem that had been illegally ruled by Jordan from May 15, 1948 to June
7,1967.Justice Kahan maintained that eastern Jerusalem was annexed to the State
of Israel as a result of the application of Israeli law to eastern Jerusalem, a
statement which "echoed opinions voiced by other justices of the Supreme
Court" (pp. 361-362 of Prof. Maoz's article). The "other
justices" mentioned by Prof. Maoz included Justice Halevi, Justice
Berenzon and President Justice Agranat. Moreover, a majority of constitutional
or academic jurists in Israel are of the opinion that the application of
Israeli law to eastern Jerusalem resulted in its annexation. This view is represented by
Professors Yehuda Zvi Blum, Amnon Rubinstein, Claude Klein, Menachem Hofnung
and Asher Maoz. Dissenting from this view are Professors Yoram Dinstein, Leon
Sheleff and the late Nathan Feinberg.
After
the judgment rendered by Justice Barak in the case of Awad v. Prime Minister
and Minister of the Interior, [42] 2 P.D. 424 (1988), it is now settled
case-law that the application of Israeli law, jurisdiction and administration
to any area of the Land of Israel, outside its present borders, effectively
annexes that area to the State, making it a part thereof, whether the area in
question is eastern Jerusalem, the Golan Heights or any other area of the Land
of Israel.
That
also appears to be the strong underlying assumption of the new law passed in
1999 entitled the Law and Administration Law (Cancellation of the Application
of the Law, Jurisdiction and Administration), 5759-1999: hok sidrei ha-shilton u-mishpat -
bittul hehalat ha-mishpat, ha-shipput ve-ha-minhal, 5759. Under this law, a
decision taken by the Government as set down in an international treaty or agreement,
the purpose of which is to cancel or withdraw the application of the law,
jurisdiction or administration of the State of Israel to an "area",
as it is termed simply in the law, presumably an area located anywhere in the
State, needs both the approval of the majority of the Knesset members, as well
as the approval of the majority of votes cast by the participants in a public
referendum or plebiscite. The entire basis of this law is to remove or
"de-annex" a pre-existing "area" from the State to which
the law, jurisdiction and administration of Israel already applies. The "area" is,
by definition, an "area of the State", otherwise this law would not
make any sense at all. The very fact that the law provides for such a double
majority in order for it to be passed means that the law is dealing with a
subject of great importance, namely that of reducing the borders of the State
by withdrawing an area from it, but not particularly limited to the Golan
Heights. This law settles conclusively the question regarding the effect and
result of applying or not applying Israeli law to an area within the State: on
the one hand, the "application of law" to an area automatically makes
that area a part of the State as seen in the context of the State of Israel's
experience and history, and, on the other hand, by doing the very opposite,
i.e., "withdrawing the application of law", to a particular area
excludes that area from the State. That is as clear as I can enunciate this
point which you have raised twice in your letters to me, concerning which your
position is diametrically opposed to what I have just stated.
One
final observation concerning the definition of "an area of the State of
Israel" should be brought to your attention. This phrase was actually
defined in the 2001 law called the "Denial of the Right of Return
Entrenchment Law" -- hok
shiryun shelilat zechut ha-shiva, 5761 --
as follows:
Area of the State
of Israel: "an area located within the borders of the sovereign rule of Israel" -- -
shetah medinat yisrael - shetah ha-nimtza bit-hum shelitatah ha-ribbonit shel
medinat yisrael
In my
opinion, this would equate the "application of law" to an area of the
State of Israel with the sovereign rule of Israel over that area. When this definition is
read in combination with the 1999 law cited above, the area of sovereignty of
the State is identical to the area where the law, jurisdiction and
administration of the State of Israel is in force.
I have
written elsewhere that Israeli sovereignty also extends to Judea, Samaria and Gaza, where in fact the corpus of Israeli law
is not in force because the Government of Israel, acting through the Minister
of Defense, failed to invoke the AJPO and Land of Israel Proclamation to these areas when they were repossessed
in June 1967. Judea, Samaria and Gaza are integral parts of the Jewish National
Home assigned to the Jewish People at the San Remo Peace Conference on April
25, 1920, but the
regrettable fact is that the State of Israel has never formally acknowledged or
asserted its own inherited sovereignty over these areas. I treat this subject
in my forthcoming book on The
Legal Foundation and Borders of Israel under International Law, and
therefore refrain from further discussing this question here.
The
fact that the AJPO was amended in 1956 to include section 2 A, which uses the
expression "shall be deemed to be part of the area of the State of
Israel" in regard to any vessel (ship) or aircraft, wherever situated,
does not prove what you strongly impute to it, that the legislator deliberately
avoided the use of the same expression in AJPO as is found in section 2A,
because "the area of application of law" was not tantamount to
"the area of the State of Israel". However, in the case of a ship or
aircraft, an express identification was needed to prove that the ownership of
the vessel or aircraft was that of the State of Israel and not of another,
foreign state, for the purpose of determining the jurisdiction of the courts of
Israel in the event that a crime is committed on board the vessel or aircraft
or if a lawsuit for damages was brought by an injured passenger or his heirs,
etc. This case obviously differs from sections 1 and 2 of the AJPO where the
law is talking about dry land and not about movable property (wood and iron)
located outside the boundaries of the State. The legislator acted wisely in
identifying these carriers or public conveyances as being a part of the State
of Israel, to remove any doubts about their legal status. Consequently, an
attack on an Israeli vessel or aircraft that takes place outside Israel is an attack on the State itself, as is
also the case if an Israeli embassy in a foreign country suffers an attack on
its premises or property.
You
tell me in your letter that only the Government of Israel has the authority to
decide if an area or region of the Land of Israel shall be joined to the State, and that
this cannot be done by the Minister of Defense alone. It is true that this is
what was said by the Minister of Justice, Ya'akov Shimshon Shapiro, when he
introduced the bill to amend section 11 of the Law and Administration Ordinance
of 1948. However, this was an innovation in the law, since prior to June 27,
1967, the date section 11B was enacted by the Knesset, all areas outside the
U.N. Partition line that were joined to the State, such as western Jerusalem
and Nazareth, were annexed by a proclamation issued in the name of the Minister
of Defense, who acted in the name of the Government pursuant to the authority
vested in the Minister by the AJPO. This is clear from the definition of the
term "proclamation" in the Interpretation Ordinance (New Version) of
1967. This ordinance defines the term as "a proclamation -- minshar -- or declaration -- akhraza -- by or with the authority of the
Government". Under the Interpretation Ordinance, a proclamation is also
included in the definition of a "law" -- din -- as well as that of an
"enactment" -- hikkuk -- and "regulation" -- takkana. Each of these acts of
subordinate or secondary legislation is presumed to be an act of the
Government, even though this is a rebuttable presumption, and if the act is not
made or issued under proper authority it can be annulled by the courts. There
can be little doubt that when Defense Minister Ben-Gurion issued the two
proclamations in 1948, he was neither acting unilaterally nor illegally, but by
or with the authority of his Government and in prior consultation with it.
It is
not my intention or wish to embarrass you about who originated the term the
"held areas" -- shetahim
muhzakim -- but it was first
used in 1948 in the two afore-mentloned Proclamations and could not therefore
have originated with you. You can verify for yourself that this term was
specifically defined in section 1 of Proclamation No. 1 of the IDF Government
in the Land of Israel and also in section 1 of Proclamation No.1 of the IDF
Government in Jerusalem. In the legislative debate preceding the enactment of the
AJPO, both Pinchas Rosen and Zerah Warhaftig spoke about the "held
areas" in contradistinction to "occupied areas" to which the law
and administration of Israel would be applied. The AJPO used a slightly
different phrase in the text of the law, "any part of Palestine... held by the Defense Army of
Israel", but it was equivalent to the term "held areas". Your
use of the same term in 1967 was therefore only a continuation of the same
phraseology begun in 1948.
English
translations of the Hebrew legal terms shetah
muhzak and shetah kavush are, it is agreed, irrelevant from the
point-of-view of Israeli law, but on the contrary they are of utmost importance
from the point-of-view of international law and also popular understanding of
what Israel did in 1967. Had the term shetah
muhzak been correctly
translated as a "held area" and not as an "occupied area",
there would probably not have arisen such a fierce world outcry against Israel's "occupation" of so-called Arab
territory under international law. The words "occupation",
"occupied territories", "occupier", etc. have become the
single greatest accusation hurled against Israel since 1967, not only by Arab states and
their allies but also by the United Nations, the European Union and the United States, as well as by the unthinking Left inside
the country. It was therefore an act of self-abasement and a self-inflicted
wound to translate shetahim
muhzakim into "occupied
areas" or "occupied territories", instead of "held
areas" of the Land of Israel that should have been annexed immediately to the State of
Israel under the AJPO and Land of Israel Proclamation. If that had been done in June, 1967, no
one would have called these territories "occupied", as they were
recognized parts of the Jewish National Home that had been illegally detached
in various partitions in the proceeding decades and were under illegal Arab (Jordanian
and Egyptian) occupation.
I also
take issue with your statement that the law in force in Israel on September 22,
1948, the date when the AJPO came into operation, was completely identical to
the law that applied in the other areas of the Land of Israel which were part
of the Mandate, the implication being that it did not matter whether Israeli
law or international law was applied since they were both the same. This is an
intriguing argument, but it, too, falls apart upon closer examination. First,
the corpus of law in the new State of Israel was not identical to the
pre-existing law, because important changes were introduced right at the
inception of the State of Israel, as set out in section 13 of the Law and
Administration Ordinance and also in the Proclamation issued by the Provisional
Council of State on May 14, 1948 that accompanied the Declaration of the
Establishment of the State. These changes were necessitated by the continued
existence of several provisions of laws dating from the White Paper of May 17,
1939, that would have remained in force had not the new legislative authority,
the Provisional State Council, declared them null and void. These provisions of
law were: sections 13 to 15 of the Immigration Ordinance, 1941; Regulations 102
to 107C of the Defence (Emergency) Regulations, 1945; and the Land Regulations,
1940. In addition, the Law and Administration (Further Provisions) Ordinance of
July 1, 1948 stated as follows:
Construction of
laws
Section 2: For the removal of doubts it is hereby declared:
(a)
where any law enacted by or on behalf of the Provisional Council of State is
repugnant to any law which was in force in Palestine on the 5th of Iyar, 5708
(14th May, 1948), the earlier law shall be deemed to be repealed or amended
even if the new law contains no express repeal or amendment of the earlier law.
By
passing this kind of legislation the Provisional State Council made it clear
that the body of law that was in force prior to the establishment of the State
was not identical to the law that existed afterwards.
Moreover,
if international law had been applied to the "held areas" in 1948,
instead of the law of the State, this would have created the same type of legal
damage and controversy as occurred in 1967 when this is what was actually done,
apparently on your advice and based on your preparatory work. The laws and
customs of war as embodied in the Hague Rules of 1907 would then have applied
to all territories beyond the UN Partition line for the Jewish State held by
the IDF, based on the premise that they were "occupied territories"
or were acquired through war, especially if the Arab state proposed in the
Partition Plan had come into existence in the areas not held by the IDF, or
also if Trans-Jordan, as Jordan was then called, had purported to act on behalf
of this aborted Arab state. In seizing the land allotted for the proposed Arab
state under the UN Partition Plan, the Arab state of Trans-Jordan effectively
replaced the aborted Arab state with the consent of the Arab notables living in
Judea and Samaria, thus giving it a supposed right to argue that "Arab
land" held by Israel that had been earmarked for the Arab state was being
occupied by the Jewish State under the Hague Rules of international law. We are
talking here only of theoretical possibilities, but since you raised this
subject, a future mess could have been created if the Government of Israel had
acted in 1948 as it did in 1967 by applying international law to areas of the
Land of Israel not included in the State's boundaries under the UN Resolution
of November 29, 1947.
Of
course, Israel wisely did not do so, thanks to Ben-Gurion
and his two Proclamations of August 2, 1948 and September 2, 1948, but it cannot be denied that this kind of
Arab complaint supported by the U.N. could have theoretically popped up and
weakened Israel's rights to all of the Land of Israel. By applying the law of the State to
western Jerusalem and other held areas of the Land of Israel, the Government
warded off other possible claimants to these lands, namely, the UN
vis-Ã -vis Jerusalem, Lebanon vis-Ã -vis Upper Galilee and Egypt
vis-Ã -vis the Negev. It therefore mattered a great deal that
international law was not applied in 1948 to the held areas by the Minister of
Defense on behalf of the Government, but rather the law of the State.
In
summary, this application of Israeli law to the held areas avoided the
application of British Mandatory enactments that were discriminatory against
Jews and contrary to the provisions of the Mandate, and also avoided the possible
invocation of the Hague Rules to the held areas, or as the Arabs may have
called them, the "occupied areas" of the proposed Arab state, seized
by Transjordan in the name of that state.
As to
section 2 of the AJPO, this provision extends Israel's administration to the "whole of the
area". It constitutes further evidence that the held areas became part of
the State, otherwise what right would Israeli officials or office-holders
sitting in Tel-Aviv have either prior to September 22, 1948 when the AJPO
became law or afterwards, to exercise their duties and powers in the held areas
(including Jerusalem, Yaffo, Nazareth, Lod, Ramla, etc.) if these areas were
not part of the State? If that was really so, as you maintain, then section 2
would constitute extra-territorial legislation, meaning that Israel would be
exercising its sovereignty outside its own territory, contrary to international
law. However, this is nonsense, since the held areas did truly become part of
the State. Section 2 also applied to court proceedings and appeals taken from
the Magistrate's Court in the held areas to the District Court or to the
Supreme Court in the State of Israel, as stated by Minister of Justice Pinchas
Rosen, in the legislative debate on this section.
In our
correspondence, I have staked my whole argument as to why the law of the State
had to be applied in regard to all areas of the Land of Israel re-possessed in the Six-Day War, on the
centrality and significance of the precedent-setting Land of Israel Proclamation. In your letter dated January
21, 2007 you adopt
a very restrictive view of the meaning of this pivotal Proclamation when you
affirm that it related only to Ramla and Lod and that my assumptions regarding
the scope of its applicability have no factual foundation. You base your
interpretation on the map attached to this Proclamation which depicted only
Ramla and Lod. However, if we take a good look at the legislative debate on the
AJPO and also examine the language of the text of the Land of Israel Proclamation, it will be conclusively demonstrated that
your interpretation of the limited scope of the Proclamation is unfounded and
my view of the open-ended nature of the Proclamation is justified.
In the
legislative debate on the bill containing the AJPO before it became law, the
following are the exact words of Justice Minister Pinchas Rosen explaining its
meaning and scope:
pekuda zo,
she-'avra et va'adat ha-hakika ve-ushra 'al-yadah peh ehad, ba'a kedei
le-faresh uke-hashlim et ha-minsharim, she-lefihem hutal hok ha-medina 'al
ha-shetahim ha-muhzakim/ attem be-vaddai zokhrim ahe-pursemu shnei minsharim
ka-elleh, minshar ehad she-hetil et hok ha-medina 'al shetah yerushalayim,
u-minshar sheni she-hetil et hok medinat yisrael 'al yeter ha-shetahim
ha-muhzakim.
In the
above-quoted paragraph, Rosen states explicitly, first that the Jerusalem
Proclamation imposed the law of the State on the area of Jerusalem and second that the Land of Israel Proclamation imposed the law of the State on the rest
of the held areas. The held areas that Rosen specifically names in the
legislative debate were Jerusalem and Nazareth, the former governed by the Proclamation
of August 2, 1948, and the latter -- by the Proclamation of September
2, 1948. He does
not specifically mention Ramla and Lod, but they are naturally included when he
refers to "the rest of the held areas". Zerah Warhaftig, who
participated actively in the debate, mentions the area of Jaffa, which was re-possessed on May
13, 1948, two days
prior to the establishment of the State, after its Arab inhabitants abandoned
the city.
Warhaftig
also spoke directly about the question whether or not the held areas outside
the U.N. lines were part of the State. Here is what he said on the subject:
shama'nu kama hatzharot bishivot mo'etzet-ha-medina
u-mi-hutza lah mi-pi sar ha-hutz ve-gam mi-pi rosh ha-memshala 'atzmo,
she-anahnu lo kibbalnu et ha-gevulot shel kaf-tet be-November ke-muhlatim,
ve-she-be'ekev ha-devarim she-halu me-az ve-'ad ha-yom nidrosh shinui
ba-gevulot im ha-davar yuva bifnei ha-um. be-khol ofen, ha-shetahim
ha-nimtza'im mi-hutz la-gevulot halalu einam mi-hutz li-gevulot medinat
yisrael. yeshnam sham halakim she-yihyu kelulim bim'dinat yisrael.
There
was no doubt in Warhaftig's mind that Jerusalem, Jaffa, Nazareth and the rest
of the held areas were part of the State of Israel and that the provisional
borders of the State as delineated in the UN Partition Plan no longer coincided
with those borders, but had been expanded to include the held areas.
It will
be recalled, as previously discussed in this letter, that Warhaftig wanted to
amend the bill for the AJPO to include the words "any law applying to the
whole of the State shall be deemed to apply to all parts of the Land of Israel...". Rosen rejected the proposed
amendment on the ground that what Warhaftig wanted to include in the AJPO was
exactly what the Jerusalem Proclamation and Land of Israel Proclamation had contemplated and therefore there was
no need to repeat the same wording in the AJPO. The rejection of the proposed
amendment is further substantiation that the Land of Israel Proclamation applied to all areas of the Land of Israel re-possessed by the IDF outside the
borders of the Jewish State fixed by the U.N. in the Partition Resolution.
In
addition to the foregoing evidence of the wide scope of the Land of Israel Proclamation, an analysis of the text of the
Proclamation also confirms its extended applicability to all areas of the Land of Israel excluding Jerusalem. The opening words in the preamble of the
proclamation state that "various areas in the Land of Israel are in the possession of the Israel
Defense Forces". The phrase "various areas" is broad enough to
cover all the held areas, not just Ramla and Lod. This phrase would not have
been used if the intention had been to limit the meaning to only these two
areas.
Moreover,
Article 1 of the Land of Israel Proclamation refers to the held areas that may
be delineated on any other map replacing the map attached to the proclamation
of September 2, 1948, and the concluding part of Article 5 refers to the held
areas the possession of which passed to the IDF afterwards, i.e., after
September 2,1948. The wording of the proclamation in Articles 1 and 5 makes it
evident that it applies to all areas held by the IDF that were either recovered
in battle or abandoned or surrendered by their Arab inhabitants, whether such
areas were re-captured prior to September 2, 1948 or after that date, and not
just to the held areas of Ramla and Lod.
It
seems to me that the delineation of areas re-conquered by the IDF as shown on a
map of the Land of Israel and then incorporated into the State was a makeshift
or temporary method, that was replaced by a better method for accomplishing the
same purpose, which was simply to apply the law of the State to the held areas,
as provided for in Article 2 of the Land of Israel Proclamation and Article 1
of the AJPO. This is exactly what happened when Beersheba, Ashdod and Ashkelon were repossessed by the IDF more than a
month after the Proclamation was originally issued. There is no disputing the
fact that this proclamation, the scope of which I have shown is open-ended,
applied to these newly re-conquered areas and would also have applied to other
areas of the Land of Israel such as Ramallah or Hebron or, for that matter, to
all of Judea and Samaria had they too been re-conquered in the War of
Independence. The same method of annexing areas of the Land of Israel to the State of Israel should have been
followed in 1967 when in fact Judea
and Samaria and other areas of the Land of Israel came into the possession of the IDF as a
result of the Six-Day War. But this was not done! The application of
international law, instead of Israeli law, was a monumental violation of the
existing constitutional law pioneered by Ben-Gurion and Rosen, a violation that
had tragic consequences and severely weakened Israel's rights to the Land of Israel. What appears to be your legal advice to
the Eshkol Government in bringing about this violation is a terrible stain on
your good name that seems to call for an act of atonement on your part.
Moving
on to your next point, you refer to "the end of section 3 of the
Ordinance" as being derived from customary public international law. This
provision of law validated retroactively all acts done "which but for the
provisions of this Ordinance would be without effect". This section
validated the two proclamations issued by the Minister of Defense, which
extended the law of the State to all the held areas. However, I am mystified by
your statement that section 3 represents customary public international law. In
any event, I agree with you that customary international law is part of the law
of the State which is taken from English common law. This is independent of the
fact that the Hague Rules, having the status of customary international law,
were inapplicable to any area of the Land of Israel re-conquered by the IDF,
both in 1948 and in 1967, since such areas were not occupied lands governed by
international law.
As to
your final point, you reiterate that section 11B of the Law and Administration
Ordinance, 1948 deals with the inclusion of territory in the State of Israel,
in supposed contrast to the AJPO which, in your opinion, does not. I believe
that in its essence Section 11B is hardly different from the AJPO, except that
the former is implemented by the Government as a whole and is optional in
nature, while the latter is implemented by the Minister of Defense on behalf of
the Government and is mandatory. Section 11B never explicitly states that an
area of the Land of Israel, to which the law, jurisdiction and administration will
apply by order of the Government becomes part of the State. I agree that this
order does make such an area part of the State, but that is also what the AJPO
does when a proclamation has been duly issued. Thus I do not understand why you
attribute this result only to section 11B but deny it for the AJPO. That
appears to me to be illogical.
On this
point, you justify your position by referring to the statement made by the
Minister of Justice, Ya'akov Shimshon Shapiro, in the Knesset debate when
section 11B was presented as an amendment to the Law and Administration
Ordinance. I have read Shapiro's speech. He said in effect that to join an area
of the Land of Israel to the State, in particular to an existing municipality
under section 8A(a) of the Municipalities Ordinance, an act of sovereignty was
required, and that could be accomplished by applying the law of the State to
any part of the Land of Israel actually under the de facto control of the State. What Shapiro was
saying in 1967 -- about applying Israeli law, jurisdiction and administration
to liberated areas beyond the borders of the State was really no different from
what Rosen said in 1948 about applying Israeli law and administration to the
held areas. Shapiro was even more emphatic than Rosen in this matter because he
said that not only had the IDF taken control of considerable, but not
contiguous areas of the Land of Israel in the Six-Day War, but had "liberated"
them "from the yoke of foreigners" ...
...hu she-tzva
hagana le-yisrael shihrer me-'ol zarim halakim nikkarim me-eretz yisrael, lav
davka retzufim' ve-ha-nimtza'im zeh le-ma'ala mi-shevu'ayim bishelitat tzahal
To
conclude this letter, I feel I understand fully your reluctance to admit any
error in your legal position affecting the Land of Israel. You have laboured
several decades as a distinguished Military Advocate General, Attorney General,
Judge and President of the Supreme Court in propounding the view that bears
your trademark, the view that the areas of Judea, Samaria, Gaza, the Golan
Heights and Sinai re-possessed in 1967 were destined to be governed by
international law and not by the law of the State. Though you think otherwise,
I perceive that your legal perspective was not in accord with the
constitutional structure created in 1948 in regard to expanding the borders of
the State to encompass all of the Land of Israel as originally envisaged in
various acts of international law in 1920 and 1922 and by David Ben-Gurion in
the legislation he was responsible for enacting as Prime Minister and Defense
Minister.
You
have also greatly influenced other members of the judiciary, particularly
Justices Moshe Landau and Aharon Barak in their judgments that served to
reinforce your original view that the liberated Jewish territories of Judea and
Samaria are governed by international law. This opinion of yours was, as
already noted, apparently passed along to the Eshkol National Unity Government,
and the State of israel has been burdened with its dire consequences ever
since. The Government's acceptance of this advice created the occupation myth
that is exploited daily by all Arab and Moslem states and by the Arabs of
Israel, as well as a plethora of Jewish leftists who have been educated in
accordance with your unfortunate view on the subject, to denounce Israel's
control of Judea and Samaria or what is left of it today. If the occupation
myth is ever to be ended, it will take a very courageous step by you personally
that is also long overdue: to admit that the application of international law,
specifically the application of the Hague Rules to Judea and Samaria in 1967,
instead of Israeli law, was a colossal mistake that altered and badly damaged
our constitutional structure for the unification of the Land of Israel under
Jewish rule.
I
continue to hope that you will realize the truth of what I have written and
will decide to act accordingly.
Yours
truly,
Howard Grief
Editor's Comment: For technical reasons words originally
written in Hebrew have been transliterated. The original Hebrew may be obtained
by writing Attorney Grief at 13/2 David Goitein St., Pisgat Ze'ev Mizrah,
Jerusalem 97782 Israel.
From Yoel
Lerner,
Editor of the "Howard Grief Eretz-Israel Letters"
The Howard Grief
Letters to Meir Shamgar, being one side of the correspondence conducted by
the author, a Jerusalem attorney specializing in Israeli constitutional law
and international law regarding Eretz-Israel, and Meir Shamgar, President
(Emeritus) of the Israeli Supreme Court, focus on the part played by the
latter in the crucial years between 1961 and 1968 when Shamgar served as
Military Advocate General and Israel came into de facto possession of much of the land
outside the borders of the State but already allocated to the Jewish People
at the conclusion of the First World War in the global settlement that
brought into existence many states in South East Europe as well as in the
predominantly Arab Middle East. These Letters, written in the English
language in which Howard Grief expresses himself most eloquently, provide the
basis for a desperately-needed thorough revision of the Israeli legal
treatment of Yehuda v'Shomron -- Judea and Samaria.
The Howard Grief
Letters to Meir Shamgar were written in two stages, the first being an
abortive stage (November 2005) where Attorney Grief sent President (Emeritus)
Shamgar a copy of a letter he had written to a mutual acquaintance, Mr.
Eliezer Dembitz, a former Military Court Judge appointed to his post by
Shamgar himself, "in which [Grief] amplif[ies] the point why [Shamgar]
was... in breach of the existing constitutional law when [he, Shamgar]
conceived the plan in the early 1960s to apply international law, instead of
Israeli law, to re-conquered areas of the Land of Israel and the Jewish
National Home," actually repossessed in 1967. No comment on the contents
of the letter, with which the Correspondence begins, was forthcoming from
President Shamgar at that time.
The second and far
more fruitful stage of this unique Correspondence began a year later when
Howard Grief wrote directly to President [Emeritus] Shamgar. Shamgar's reply
initiated a fascinating exchange of letters and of thoughts that took place
over a period of several months. It was President [Emeritus] Shamgar's
categorical objection to the publication of the letters he himself had
contributed to the Correspondence that led to the decision to publish Howard
Grief's letters in the present format. The discerning reader will be able to
reconstruct many of the arguments made by President [Emeritus] Shamgar, to
which Howard Grief has responded.
Yoel
Lerner, Editor
April, 2007
|
Howard Grief was born
in Montreal, Canada, educated in law at McGill University and made aliyah in
1989. He served as international law advisor to Professor Yuval Ne'eman, the
then Minister of Energy and Infrastructure on matters pertaining to the Land of
Israel and Jewish rights thereto. He is a Jerusalem-based attorney and notary,
as well as a specialist in Israeli constitutional law. In October 1993, he
wrote the first of several articles denouncing the illegal agreements Israel
made with the PLO; these appeared in the pages of Nativ and elsewhere. He is the founder and
director of the Office for Israeli Constitutional Law.
He formulated the
original thesis that sovereignty over the entire Land of Israel and Palestine
was devolved upon the Jewish People at the San Remo Peace Conference in April
1920 as part of the global settlement that dismembered the
Ottoman Turkish Empire and created the Middle Eastern states of today; as a
consequence, the British White Papers published during the Mandate period, as
well as the UN General Assembly Partition Plan of 1947, were illegal. He is the
author of two forthcoming books on The
Legal Foundation and Borders of Israel under International Law, which deal with
his thesis in an orderly and comprehensive fashion
The "Howard
Grief Eretz-Israel Letters to Meir Shamgar, 2005-2007 -- on Eretz-Israel and
Israeli Constitutional Law" edited by Yoel Lerner was published by the
Office For Israeli Constitutional Law (Registered Amuta), Iyar 5767 -- May
2007. It was submitted to Think-Israel by Yoel Lerner, editor of The Grief Letters on September 2, 2007.
[Editor's
note: You can read Howard Grief, "The Origin of the Occupation Myth,"
by clicking here. And
his article on "Legal Rights and Title of Sovereignty of the Jewish People
to the Land of Israel and Palestine under International Law" can be read here.]
IS ISRAEL OCCUPYING THE WEST BANK?*
by Howard Grief
PART 1. A LEGAL DISCOURSE ON
OCCUPATION
It was
a nerve-racking experience to attend an international conference of
distinguished jurists on "Forty Years after 1967: Reappraising the Role
and Limits of the Legal Discourse on Occupation in the Israeli-Palestinian
Context", held on June 5-7, 2007 in Jerusalem and Tel-Aviv. This event was
sponsored by three organizations promoting international humanitarian law,
human rights and Israeli-Arab co-existence: The Minerva Center for Human
Rights, based at the Hebrew University of Jerusalem, the International
Committee of the Red Cross and the Konrad Adenauer Foundation. All the speakers
and panelists referred repeatedly to Israel's "occupation" of
"Palestinian territory", and alleged that the "West Bank"
and Gaza are "occupied territories" under international law and that Israel's
legal status in those territories is that of an "Occupying Power". No
dissenting voices were heard, though one jurist, Prof. Yaffa Zilbershatz of
Bar-Ilan University did say that the "occupation" was legally established within the
framework of international law. I came to the conference as an observer to
witness in person the folly and self-flagellation of Israel's legal elite who
give vent to the most anti-Zionist and pro-Arab contentions in scholarly
fashion. It was disgraceful to hear speaker after speaker holding the same
unshakable assumption, that Israel is in serious breach of the laws of belligerent occupation,
as laid down in the Hague Regulations of 1907 and the Fourth Geneva Convention
of 1949, particularly as regards the establishment of "illegal"
settlements in the "occupied territories" and its unmet obligations
as an "Occupying Power" towards the Arabs.
The
only conclusion that can be drawn from this Conference is that the Law
Faculties of Israeli Universities are filled with professors and legal scholars
who advocate the Arab case concerning the "occupation", and who have
indoctrinated their impressionable students with the same injurious views. By
railing against the "occupation", the legal scholars who populate the
law faculties libel and berate their own country and encourage foreign scholars
to join in the castigation of Israel for perpetuating the
"occupation". Not least of all, they give aid and comfort to Israel's
enemies.
It is
becoming more and more difficult to refute the falsehood of
"occupation", because this unfounded accusation has been given
credence by no less an august institution than the Supreme Court of Israel.
Beginning principally with the 1979 Eilon Moreh case and extending to recent
cases involving the erection of the security fence and the Disengagement Implementation
Law, the Court has affirmed that Israel is indeed an Occupying Power in Judea,
Samaria and Gaza and governs these territories by virtue of the rules of
belligerent occupation, exactly as Arab leaders have maintained. To overturn
this libelous falsehood, it would require a special law to be passed by the
Knesset, a law affirming Jewish legal rights to all parts of the Land of
Israel, especially the so-called areas under "occupation". Such a law
must state specifically that Israel does not occupy -- in the legal sense --
any area of the Land of Israel.
THE
IDEA THAT Judea, Samaria and Gaza are under Israel's "occupation" was
born on June 6-7, 1967, when the Israel Defense Forces overran and repossessed
these territories in the Six-Day War and the National Unity Government headed
by Levi Eshkol instantly applied Article 43 of the Hague Regulations to keep
the existing laws in force. The invoking of this article of international law
by the Government was based on the legal advice of then Military Advocate
General and future Supreme Court President Meir Shamgar, as well as several
others who concurred in that decision. However, this step was in direct
contradiction to the existing Israeli constitutional law embodied in the law
known as the Area of
Jurisdiction and Powers Ordinance enacted
by the Provisional State Council on September 16, 1948, and two proclamations
that were issued by Prime Minister and Defense Minister David Ben-Gurion just
prior to the enactment of this law. These two proclamations -- the Jerusalem
Proclamation of August 2, 1948 and the Land of Israel Proclamation of September
2, 1948 -- required the application of the law of the State to areas of the
Land of Israel re-conquered by the IDF outside of the recommended UN partition
borders of November 29, 1947. Both the law and the two Proclamations were made
retroactive to May 15, 1948, thus creating one legal aggregate upon which to
base future annexations of re-conquered territory that was part of the Land of
Israel.
In
contrast to the practice followed by Ben-Gurion's Government in 1948, the
Eshkol government in 1967 applied not only the Hague Regulations relating to
"occupied territories", but also the provisions of the Fourth Geneva
Convention Relative to the Protection of Civilian Persons in Time of War. This
gave birth to the assumption in the eyes of the world and in Israel itself that
the liberated territories of the Land of Israel and the Jewish National Home
were indeed "occupied territories". Israel chose to apply the Fourth
Geneva Convention voluntarily and not to annex the liberated territories
(except for eastern Jerusalem and the Golan Heights) out of demographic
concerns and to keep alive the hope of signing peace treaties with the
neighboring Arab states. But this provided no justification for the violation
of the existing constitutional law or for failing to apply the law of the State
to the liberated territories as Ben-Gurion did in 1948.
The
term "occupation" is defined in article 42 of the Hague Regulations, where it states that "territory is
considered occupied when it is actually placed under the authority of the
hostile army and the occupation extends only to the territory where such
authority has been established and can be exercised". The premise of Article
42 is that the territory in question belongs to the Occupied Hostile State
which lost this territory in a war with the Occupying State. Since Jordan was
never the legitimate sovereign of Judea and Samaria -- its occupation of this
territory during the 1948-1949 Israeli War of Liberation has always been
unacceptable under international law -- there never was any
"occupation" of Jordanian territory. For the same reason, under
neither the Hague Rules nor the Fourth Geneva Convention was there any "occupation"
of the Gaza Strip, since Egypt was never the sovereign of that territory and,
in fact, never claimed to be. Furthermore, the term "occupied Palestinian
territory" is a non
sequitur, since with the termination of the Mandate for Palestine there is
no state called "Palestine" from which any land was taken in war, and
the laws of belligerent occupation apply only to independent states and not to
non-state entities such as the "Palestinian Authority" and the
so-called "Palestinian People". In truth, the areas of Mandated
Palestine that are said to be under Israel's occupation are actually integral
parts of the Jewish National Home and belong to the Jewish People under both
Israeli constitutional law and international law as decided in the post-World
War One global settlement and the carving-up of the Ottoman Turkish Empire.
The
Jewish National Home is not merely a meaningless phrase or slogan. It was and
still is a concept of international law that was accepted by the 52 member
states of the League of Nations which confirmed the Mandate for Palestine on
July 24, 1922. In addition, the United States approved the boundaries of the
Jewish National Home, including Judea, Samaria and Gaza, when it signed a
treaty with Great Britain respecting the Mandate on December 3, 1924; this
treaty was then proclaimed by President Calvin Coolidge on December 5, 1925 as
part of the law of the United States. The boundaries of Mandated Palestine were
those previously set down in the Franco-British Boundary Convention of December
23, 1920 and embraced all the so-called "occupied territories" of
today.
The
first and most important speaker at the Conference was Prof. Yoram Dinstein of
Tel-Aviv University. In his opinion, as stated personally to the present
writer, the Arabs of Palestine inherited the rights of the ousted sovereign
Jordan, which transferred those rights to the "Palestinians" as a
result of King Hussein's Declaration of July 31, 1988 dissolving Jordan's legal
and administrative links with the West Bank. Dinstein's opinion is untenable
since, as already noted, Jordan was never the recognized or legitimate holder
of sovereignty over what it called its "West Bank". It acquired this
territory in May 1948 through an unprovoked act of aggression against the
nascent Jewish State; it had no right to this territory and then illegally
annexed it two years later. Only two countries recognized this illegal
annexation, Pakistan and Great Britain, though the latter did not recognize the
Jordanian appropriation of the eastern part of Jerusalem. Not even the Arab
League of states recognized the Jordanian annexation of the conquered areas of
Mandated Palestine.
There
remains only one way to end the myth of Israeli "occupation" of lands
that belong by law to the Jewish People. A future Government of Israel must
abolish the military regime adopted in June 1967 for Judea, Samaria and Gaza,
and replace the existing military laws and regulations with the law of the
State of Israel.
PART 2. THE OCCUPATION OF
YESHA: A LEGAL ASSESSMENT
Many
Israeli and foreign jurists assume that Israel has violated the Hague
Regulations of 1907 and the Fourth Geneva Convention of 1949, when it allowed
Jewish communities to be built in Yehuda (Judea), Shomron (Samaria) and Gaza --
collectively, YESHA. Even Israel's Supreme Court has affirmed that Israel is an
Occupying Power in these areas, having the right of governing them only by
virtue of those Conventions. But is that true?
Since
1967, when the Israel Defense Forces conquered YESHA (as well as the Golan
Heights and Sinai), successive Israeli governments applied Article 43 of the
Hague Regulations, thereby retaining the existing laws of its former rulers.
Invoking this article of international law was based on the legal advice of
Meir Shamgar, Military Advocate-General in 1967 and later Supreme Court
President, and others. This
decision, however, directly contradicted existing Israeli constitutional law,
the Area of Jurisdiction and Powers Ordinance enacted by the Provisional State
Council on September 16, 1948, and two earlier proclamations issued by Prime
Minister and Defense Minister, David Ben-Gurion.
The
Jerusalem Proclamation of August 2, 1948 and the Land of Israel Proclamation of
September 2, 1948 required the application of Israeli law to all areas of the
Land of Israel re-possessed by the IDF beyond the UN partition borders of
November 29, 1947. Both the law and the Proclamations were made retroactive to
May 15, 1948, thus creating one legal aggregate upon which to base future
annexations of re-conquered territory that was part of the Land of Israel and
the internationally recognized Jewish National Home.
In
contrast to the practice followed by Ben-Gurion's Government in 1948, the
Eshkol National Unity Government in 1967 applied not only the Hague Regulations
relating to "occupied territories", but also the provisions of the
Fourth Geneva Convention. This gave birth to the assumption that the liberated
territories of the Land of Israel and the Jewish National Home were indeed
"occupied territories".
Israel
chose to apply the Fourth Geneva Convention voluntarily and did not annex the
liberated territories (except for eastern Jerusalem and the Golan Heights) out
of demographic concerns and to keep alive the hope that neighboring Arab states
would make peace. But this provided no justification for the violation of
existing constitutional law, or for failing to apply the law of the State to
the liberated territories, as Ben-Gurion did in 1948.
THE
TERM "OCCUPATION", DEFINED IN ARTICLE 42 of the Hague Regulations, refers
to territory that is "actually placed under the authority of the hostile
army and the occupation extends only to the territory where such authority has
been established and can be exercised."
The
premise of Article 42 is that territory which belonged to an Occupied State and
was lost in war with the Occupying State cannot be claimed or annexed by the
latter. Since Jordan was never the legitimate sovereign of Judea and Samaria --
its occupation of this territory during the 1948-1949 Israeli War of Liberation
has always been unacceptable under international law -- there never was any
"occupation" of Jordanian territory. For the same reason, neither
under the Hague Rules nor the Fourth Geneva Convention was there any
"occupation" of the Gaza Strip, since Egypt was never the sovereign
of that territory and, in fact, never claimed to be.
Furthermore,
the term "occupied Palestinian territory" is a non sequitur, since
with the termination of the British Mandate for Palestine there is no state called
"Palestine" from which any land was taken in war, and the laws of
belligerent occupation apply only to independent states -- not to non-state entities such as
the "Palestinian Authority" or the so-called "Palestinian
People".
Areas
of Palestine which were under the British Mandate that are said to be under
"Israeli occupation" are actually integral parts of the Jewish
National Home and belong to the Jewish People under both Israeli constitutional
law and several international agreements concluded immediately after World War
One, which constitute the real international law that is today conveniently
forgotten by those alleging Israeli occupation of YESHA.
The
belief that Palestinian Arabs inherited national and political rights from
Jordan, which King Hussein then transferred to the "Palestinians" on
July 31, 1988 when he dissolved Jordan's legal and administrative links with
the West Bank has no legal basis. Since it acquired this territory through an
unprovoked act of aggression, Jordan had no right to this territory. Not even
the Arab League recognized the Jordanian annexation of the conquered areas of
Mandated Palestine.
To
repeat the conclusion from Part 1: to
end the myth of Israeli "occupation", the Israeli government must
abolish the military regime adopted in June 1967 for Judea, Samaria and Gaza,
and replace the existing military laws and regulations with the law of the
State of Israel.
[*] The proper names for the West Bank are
Samaria and Judea -- Samaria is the land north of Jerusalem; Judea is the land
south of Jerusalem. These names were used in Biblical times and throughout the
centuries, until (Trans)Jordan invaded the territory in 1948, renaming the area
the "West Bank".
Howard Grief was born
in Montreal, Canada and made aliyah in 1989. He served as a legal advisor to
Professor Yuval Ne'eman at the Ministry of Energy and Infrastructure in matters
of international law pertaining to the Land of Israel and Jewish rights
thereto. He is a Jerusalem-based attorney and notary, as well as a specialist
in Israeli constitutional law. In October 1993, he wrote the first of several
articles denouncing the illegal agreements Israel made with the PLO that
appeared in the pages of Nativ and elsewhere. He is the founder and director of
the Office for Israeli Constitutional Law.
Part one was
submitted June 10, 2007; part 2 June 20, 2007.
[Editor's
note: You can read Howard Grief, "The Origin of the Occupation Myth,"
by clicking here. And
his article on "Legal Rights and Title of Sovereignty of the Jewish People
to the Land of Israel and Palestine under International Law" can be read here.]
League of
Nations Mandate For Palestine: the ORIGINAL Two-State Solution
League of Nations Mandate for Palestine
with Note re Trans-Jordan, Dec 1922
* Original + Text +
Summary + Roleplay Dialogue [PDF, 28p] *
(NOTE: this document is updated from time to
time, therefore, it is recommended you link to this page rather than the
document)
* Original + Text +
Summary + Roleplay Dialogue [PDF, 28p] *
————————————-
SUMMARY – The Original Two-State Solution
The Jewish people are owners, not occupiers of
Israel, including Judea and Samaria, by virtue of a ‘land title deed’ from the
1922 League of Nations Mandate For Palestine which
created the ‘Original Two-State
Solution.’ (‘West Bank’ was the name given to Judea and Samaria by Jordan
during her illegal occupation of the area beginning in 1948 that ended with
Israel’s victory in the 1967 Six Day War).
1.
‘Palestine’ was promised to the Jewish people via unanimous
approval by the 52 countries of the League of Nations of the Mandate For Palestine. Its terms were agreed upon
on July 24, 1922, came into effect Sept 29, 1923, and ended at midnight on May
14, 1948, the day before Israel declared independence. The Mandate
codified decisions made under international law by the Principal Allied Powers
at the San Remo Conference which were set out in the San Remo Resolution of
April 25, 1920. British Foreign Secretary Lord Curzon referred to this
resolution as ‘the Magna Carta of the Zionists.’
.
On December 3, 1924 the ‘Rights In Palestine Convention’
(44 Stat. 2184; Treaty Series 728) was signed between the United Kingdom and
the United States of America. It was ratified by both countries in 1925,
thereby recognizing the Mandate For (Jewish) Palestine under U.S. law. (A
similar convention was signed regarding the mandate for the Cameroons.)
.
The Mandate’s preamble states: “Whereas
recognition has thereby been given to the historical connection of the Jewish
people with Palestine and to the grounds for reconstituting their national home
in that country;’
.
Article 2 says, ‘The Mandatory shall be
responsible for placing the country under such political, administrative and
economic conditions as will secure the establishment of the Jewish national
home…”
.
Article 6 states that “The Administration of
Palestine…shall encourage…close settlement by Jews on the land…”
The Mandate also protects the ‘civil and religious rights’ of non-Jews.
.
In addition to (Jewish) Palestine/Israel, today’s Arab states of Jordan, Syria,
Lebanon and Iraq all eventually came into existence via the Mandates System. No
one questions the boundaries of these and the non-Arab countries arising from
Mandates: Togo, Benin, Cameroon, Namibia, Rwanda, Burundi, Tanzania, Papua New
Guinea and Samoa.Out of 14 countries created via the Mandates system, only the
Jewish state is demonized.
.
2.
THE ORIGINAL TWO-STATE
SOLUTION: Palestine included land west and east of the Jordan River.
Palestine’s land east of the Jordan River promised to Jews was given in appeasement
to Arabs, was later expanded eastwards, and forms what is now Jordan, as
initiated by the September 16, 1922 ‘Note
By The Secretary-General Relating To Its Application To The Territory Known As
Trans-Jordan’ in accordance with Article 25 of the Mandate.
.
3.
Paragraph 1 of Clause 80 of Chapter 12 of the United Nations
Charter protects existing rights acquired under international instruments such
as the Mandate For Palestine:“Except as may be agreed upon in individual
trusteeship agreements, made under Articles 77, 79, and 81, placing each
territory under the trusteeship system, and until such agreements have been
concluded, nothing in this Chapter shall
be construed in or 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.” (Palestine was never placed in a trusteeship
agreement.)
.
4.
Article 11 of the Hamas Charter explains why the organization calls
for the killing of Jews, the destruction of Israel, and the rejection of all
peaceful solutions by declaring that Palestine cannot be neglected or given
away—even a part of it—by any Arab state(s), king(s) or president(s)
because: “The legal status of Palestine
according to Islamic law… is like any other land that the Muslims have
conquered by force, because the Muslims consecrated it at the time of the
conquest as religious endowment for all generations of Muslims until the Day of
Resurrection.”
Land of Palestine as claimed by World Zionist
Organization, 1919. All of Palestine east of the Jordan River promised for the
reconstituting of the Jewish “national home” was instead given to Arabs to form
today’s Jordan–the ORIGINAL Two State Solution. See Note re Trans-Jordan at the
end of the Mandate document for more info.
CITATIONS | REFERENCES
1. Salomon Benzimra: The Jewish People’s Rights To
The Land Of Israel,2011, 159 pages. Published by Canadians for
Israel’s Legal Rights (www.CILR.org). Salomon worked closely with the late
Howard Grief (see below) to produce this shorter, but no less authoritative,
summary of Israel’s land rights.
2. Video: Salomon Benzimra presentation at 2014 Israel
Truth Week Conference, Toronto, Ontario, Canada, March 23/14:Israel’s Land Title Deed From The Original Two-State Solution
3. Howard Grief: The Legal Foundation And Borders Of Israel Under International Law,
2013, 732 pages. The authoritative research work by the late Canadian legal
scholar of Israel’s land rights.http://tinyurl.com/l34tsc9
5. U.S. Department of State: Rights In Palestine Convention (44 Stat.
2184; Treaty Series 728), Treaties
And Other International Agreements Of The United States, 1776-1949 (pp.417-426). U.S. Govt. Print. Off.,
1968. From Google Books: http://tinyurl.com/khbvkpe
ANNEXATION WINS HANDS
DOWN OVER A TWO-STATE SOLUTION
by Matthew H. Hausman
History, Demographics,
and Law Favor Israel's Annexation of Judea and Samaria, Not a Two-State
Solution
It has become an article of political faith in
the West that the creation of an independent Palestinian state will resolve the
Arab-Israeli conflict. But the two-state paradigm is based on fictional
assumptions — that an ancient Palestinian people occupied the land for
thousands of years until its displacement by Israel, that the conflict is
driven by this displacement, and that Israel usurped ancestral Arab soil. These
false premises are used to obscure the true nature of the conflict, which is
not really a dispute between Israelis and Palestinians over real estate, but
rather is a war of annihilation being waged by the entire Arab-Muslim world.
The establishment of an independent Palestine will not facilitate peace because
the goal of this war is Israel's demise. A more rational resolution, and one
that makes historical, legal and demographic sense, would be for Israel to
annex some or all of Judea, Samaria and other areas that were part of the
ancient Jewish commonwealth, which was the only sovereign nation ever to exist
between the Jordan and the Mediterranean.
The western media relegates any discussion of
annexation to the lunatic fringe, but there is nothing radical about the
concept. Indeed, the San Remo Conference of 1920 and the League of Nations
Mandate for Palestine of 1922 originally contemplated Jewish settlement
throughout the traditional homeland, well before the term "Palestinian"
entered common usage after 1967 as a dissimulative weapon in the propaganda war
against the Jewish state. After Transjordan was created on the bulk of Mandate
lands under British control, the goal for the remainder was unrestricted Jewish
habitation west of the Jordan River. This objective was recognized long before
the dialogue was hijacked by the myth of Palestine, a nation that never
existed, and by the canard that Judea and Samaria were historically Arab lands.
No amount of subterfuge can change the fact that Palestinian nationalism is an
artificial construct or that Judea and Samaria were never lawfully part of any
sovereign Arab nation.
Ironically, commentators who condemn any
discussion of annexation as right-wing extremism conveniently ignore the singular
role of Arab-Muslim rejectionism in perpetuating the state of war with Israel.
The liberal media portrays the Palestinian Authority as moderate despite a
charter that plainly calls for Israel's destruction and regardless of its
reconciliation with Hamas, whose own charter screams for jihad and genocide.
The Obama administration and European Union remain deaf, dumb and blind to
Palestinian prevarications and incitement, even as they chastise Israel for not
offering ever more unilateral concessions. Arab provocations are ignored or
rewarded, while Israel is labeled obstructionist despite the unrequited
compromises she has made in the naive search for peace with those who seek her
destruction.
Examples of this inequitable treatment abound.
Israel facilitated Palestinian autonomy in much of Judea and Samaria, permitted
the PA to arm itself, and fueled a local economy that provides the highest
standard of living in the Arab world, and yet she is accused of discrimination
and economic suppression. She has afforded her Arab citizens the same political
rights, economic opportunities and freedom of movement as Israeli Jews (indeed,
many live in West Jerusalem and serve in the Knesset), but stands accused of
apartheid. She compromised her own security by unilaterally disengaging from
Gaza, and yet remains the target of rancorous attacks from a delusional
left-wing that persists in portraying Gaza as occupied. She takes great pains
to prevent or minimize civilian casualties when engaging in defensive military
actions, only to be wrongfully accused of targeting noncombatants.
In contrast, the Palestinians are barely
reprimanded as they reject Israel's right to exist as a Jewish state and
continue to engage in systematic incitement and terrorism against Jewish men,
women and children. Moreover, Palestinian national claims are validated
uncritically in the West — even though there was no Palestinian nation at the
time of Israel's independence and although there was no demand for Palestinian
statehood when Egypt controlled Gaza and Jordan occupied Judea and Samaria from
1948 to 1967. If the Palestinians were truly a displaced, indigenous people,
they presumably would have demanded statehood when the Arab powers who today
claim only to support their cause actually controlled the territories to which
they now claim historical title.
If these inequities show anything at all, it is
that those who push the two-state agenda have no regard for Israeli sovereignty
or Jewish historical rights. Rather, they are preoccupied with creating yet
another Arab-Muslim state and in promoting the false narrative underlying
Palestinian national claims. Absent any historical justification for a state of
Palestine, such blind advocacy can only be explained by hatred for Israel and
the growing tolerance of western progressive culture for political antisemitism
and the devaluation of Jewish claims. Indeed, delegitimization of Israel has
become de rigueur in liberal intellectual society, which
provides safe harbor for the boycott, divestment and sanctions
("BDS") and anti-Israel "lawfare" movements. Given the
disregard for Jewish sovereignty that lies at the heart of American and
European efforts to impose a two-state solution, it is clear that Israel is at
a crossroads: Either she can continue participating in a farcical "peace
process" that is heavily weighted against her national interests, or she
can proactively seize the day and craft a solution that makes sense
historically, geographically and legally.
If the inclination of the Obama administration
and EU to denigrate Israel, favor the Palestinians, and appease Arab-Muslim
sensibilities is any indication, Israel must act on the latter impulse. That
is, she needs to reclaim Judea and Samaria as ancestral Jewish lands and shake
off all vestiges of the societal ambivalence that was engendered by the Israeli
left when it cajoled the nation into the ill-fated Oslo process, which led only
to increased terrorism and diplomatic isolation, two costly wars in Lebanon and
Gaza, and the disenfranchisement of Israel's political center.
The Annexation of Judea and Samaria Makes Historical Sense
Israel has valid historical claims to Judea and
Samaria because they were part of the Second Jewish Commonwealth. Jews lived
there from ancient times through successive conquests, the Ottoman occupation,
and the British Mandatory period until 1948, when they were attacked and
expelled by combined Arab-Muslim forces that invaded from east of the Jordan.
These lands were conquered by Transjordan (thereafter called Jordan) and dubbed
the "West Bank," in much the same way that ancient Judea was renamed
"Palestine" by the Romans in order to obscure the Jews' connection to
their ancestral land by invoking the name of the ancient Philistines — a people
who had long since been swallowed by the sands of time. Jordan's conquest of
these territories violated international law and was recognized only by Great
Britain and Pakistan, and its subsequent occupation could never be legitimized
under established legal principles.
Despite Jordanian attempts to erase all memory
of the Jews' presence from Judea and Samaria, the ancient provenance of these
lands is evidenced by the treasure-trove of Jewish holy sites they contain,
including, Joseph's Tomb in Nablus, the Cave of the Patriarchs in Hevron, and
Ramat Rachel near Bethlehem. The pedigree of the land is also reflected by the
numerous Arabic place names that are merely etymological renderings of the
original Hebrew, which names evidence Jewish habitation dating from Biblical
times. These towns include: Batir, which corresponds to Beitar, the seat of Bar
Kochba's rebellion against Rome from 132 to 135 CE; Beit-Hur, an Arabic
corruption of the name Beit Horon, where the Maccabees defeated the Assyrian
Greeks; Beitin, corresponding to the town of Beit El, where the Prophet Shmuel
held court and the Ark of the Covenant was kept before the Temple was built;
and Tequa, the site of ancient Tekoa, where the Prophet Amos was born and
received his prophesy.
Clearly, the Judenrein status
of Judea and Samaria after 1948 did not reflect historical reality, but rather
the slanted surreality created when the combined Arab-Muslim armies attempted
to annihilate Israel and exterminate her people following the ill-fated U.N.
partition vote. Considering that only the Jews had a continuous presence dating
back to antiquity, it was clearly the Arab population that usurped traditional
Jewish lands, not the other way around. The Arab-Muslim world, aided and
abetted by the political left, rationalizes this usurpation of Jewish lands
with propaganda grounded in taqiyya — religiously-mandated
dissimulation — to promote the lie that there was no Jewish presence in these
lands before 1967 and that all subsequent Jewish "settlements" are
colonial enterprises.
Israel has Superior Legal Claims to Judea and Samaria
In addition to the Jews' historical connection
to Judea and Samaria, Israel's claim to these lands is consistent with
established legal precedent as recognized by the San Remo Convention of 1920.
Regarding the lands liberated from Ottoman rule during the First World War, the
San Remo Resolution resolved as follows:
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 8, 1917, by the British Government, and
adopted by the other Allied Powers, in favour of the establishment in Palestine
of 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.
(San Remo Convention Resolution, Paragraph (b).)
Underlying the San Remo Resolution's
affirmation of the Balfour Declaration was the recognition that the Jews are
defined by descent as well as religion, are indigenous to the Land of Israel,
and are possessed of the inalienable right to political and national ascendancy
in their homeland. The San Remo program was ratified by the League of Nations
Mandate for Palestine in 1922, the preamble of which included the following
passages:
Whereas the Principal
Allied Powers have also agreed that the Mandatory should be responsible for
putting into effect the declaration originally made on November 2nd, 1917, by
the Government of His Britannic Majesty, and adopted by the said Powers, in
favour of the establishment in Palestine of a national home for the Jewish
people, it being clearly understood that nothing should be done which might
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
Whereas recognition has
thereby been given to the historical connection of the Jewish people with
Palestine and to the grounds for reconstituting their national home in that
country...
Consistent with this
language, Article 2 of the Mandate clearly set forth the British obligation to
effectuate these goals in accordance with the San Remo Resolution thus:
The Mandatory shall be
responsible for placing the country under such political, administrative and
economic conditions as will secure the establishment of the Jewish national
home, as laid down in the preamble, and the development of self-governing
institutions, and also for safeguarding the civil and religious rights of all
the inhabitants of Palestine, irrespective of race and religion.
(League of Nations Mandate for Palestine, Article 2.)
Regarding the intended geographical scope of
Jewish habitation and settlement, the Mandate specifically provided that:
The
Administration of Palestine, while ensuring that the rights and position of
other sections of the population are not prejudiced, shall facilitate Jewish
immigration under suitable conditions and shall encourage, in cooperation with
the Jewish agency referred to in Article 4, close settlement by Jews on the
land, including State lands and waste lands not required for public
purposes.
(League of Nations Mandate for Palestine, Article 6.)
The Mandate did not call for a Jewish state
with indefensible borders (as did President Obama when he attempted in his
recent State Department Speech to pressure Israel to accept the 1949 armistice
lines as permanent boundaries). Rather, by recognizing the Jewish right of
"close settlement," the Mandate contemplated a Jewish state that
would incorporate some or all of Judea and Samaria — and for that matter Gaza.
Indeed, the Mandate specifically recognized the Jews' connection to their
entire homeland, which historically included these territories.
Certainly, there was international consensus
that the Jews were entitled by right to a national home in Israel. Jewish
rights under the Palestine Mandate were not recognized in a vacuum, and Arab
self-determination was addressed by the establishment of the French Mandate in
Lebanon and Syria and the British Mandate in Mesopotamia (Iraq) and
Transjordan. There was no separate mandate for the "Palestinians"
because they had no independent national existence, as evidenced by the lack of
any historical record of an ancient Palestinian presence in the land and by the
absence of any cultural or societal institutions that are the hallmarks of
nationhood.
Palestinian nationality is a knowing
contrivance, as even Yasser Arafat acknowledged in his authorized biography,
wherein he stated: "The Palestinian people have no national identity. I,
Yasser Arafat, man of destiny, will give them that identity through conflict
with Israel." Or, in the words of the late Zahir Muhse'in, who said:
The
Palestinian people does not exist. The creation of a Palestinian state is only
a means for continuing our struggle against the state of Israel. For our Arab
unity. In reality today there is no difference between Jordanians,
Palestinians, Syrians and Lebanese. Only for political and tactical reasons do
we speak today about the existence of Palestinian people, since Arab national
interest demand that we posit the existence of a distinct 'Palestinian people'
to oppose Zionism.
In contrast, both San Remo and the Mandate for
Palestine evidenced universal recognition of the Jews' historical rights in
their homeland.
This recognition of Jewish national rights was
ratified by the United States on June 30, 1922, when both Houses of Congress
issued a joint resolution unanimously endorsing the Mandate and the goal of
reestablishing the Jewish national home. The Congressional resolution stated in
relevant part:
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, it being clearly
understood that nothing shall be done which should prejudice the civil and
religious rights of Christian and all other non-Jewish communities in
Palestine, and that the holy places and religious buildings and sites in
Palestine shall be adequately protected.
(Joint Congressional Resolution No. 360, the Lodge-Fish Resolution.)
Despite the Jews' willingness to accept an area
comprising less than their traditional homeland, the Arab world refused to
accept any expression of Jewish sovereignty and scorned all proposals providing
for a modern Jewish state. The U.N. Partition Plan of 1947 was rejected by
every Arab-Muslim nation simply because it provided for Jewish autonomy. There
was no consideration of Palestinian claims because Palestinian nationality had
not yet been invented. In fact, the Arabs altogether rejected the term
"Palestine" to describe lands under mandatory control because, as
stated by Auni Bey Abdul-Hadi to the Peel Commission in 1937: "There is no
such country [as Palestine]. 'Palestine' is a term the Zionists invented. There
is no Palestine in the Bible. Our country was for centuries part of
Syria." This was the prevailing Arab view at the time.
In light of the resounding Arab-Muslim
rejection of the 1947 partition plan, it cannot be relied on as legal precedent
to validate Palestinian claims to Judea and Samaria, or for that matter to
Jerusalem or Gaza. Moreover, Israel's right of ownership cannot be impugned simply
because she came into modern possession of these lands during wartime. Under
internationally recognized legal principles, the seizure of land from
belligerent nations during wartime gives rise to legitimate and lawful
ownership.
In weighing the lawfulness of land acquisitions
during wartime, it is important to distinguish belligerent nations from their
victims. The laws of war have long recognized that a country that seizes
territory while defending itself from unprovoked aggression has legitimate
claims of ownership to lands captured from the aggressor nation. There is no
dispute that the Arab nations started the wars of 1948, 1967 and 1973 with the
expressed goal of destroying Israel and committing genocide. There is likewise
no dispute that in attacking Israel these nations violated Article 2, Section 4
of the U.N. Charter, which provides: "All Members shall refrain in their
international relations from the threat or use of force against the territorial
integrity or political independence of any state, or in any other manner
inconsistent with the Purposes of the United Nations." Consequently,
Israel was acting within her legal rights when she captured Judea, Samaria,
Jerusalem, Golan, Sinai, and Gaza during the Six-Day War.
Just as relevant is the fact that Judea and
Samaria were never part of a sovereign nation at any time after the Roman
conquest, but rather constituted unincorporated territories that ultimately
were occupied by Jordan in derogation of international law. Furthermore,
substantial portions of both had been designated under the Mandate for
inclusion in the Jewish state. Thus, when Israel took control of these lands in
1967, she was not only liberating them from the illegal occupation of a
belligerent nation that had attacked her without provocation, but was in fact
enforcing Jewish national rights recognized under the Mandate. Israel's
stewardship of Judea and Samaria is therefore legally defensible. Despite
disingenuous attempts by the U.N. to render Israel's actions unlawful by the
passage of ridiculously unbalanced resolutions ex post facto, Israel has
legitimate grounds under recognized legal principles to support the annexation
of Judea and Samaria and the expansion of so-called settlements.
Security Council Resolution 242 does not Require Israel to
Surrender Judea and Samaria
Although U.N. Security Council Resolution 242
is often invoked to demand that Israel withdraw and accept borders based on the
1949 armistice lines, it actually says nothing of the kind. Resolution 242
specifically recognizes that Israel was attacked by Jordan, Egypt and Syria in
1967, and calls on the parties to that conflict to negotiate a "just and
lasting peace" based on "secure and recognized borders."
Implicit in this language is the recognition that Israel's capture of Judea and
Samaria, and also Golan, Gaza and Sinai, was legal under international law. If
it were not, the resolution simply would have demanded that Israel return all
lands captured from her attackers. That is, there would be nothing to negotiate
and no imperative for deviating from the 1949 armistice demarcations known as
the "Green Line." It is significant that Resolution 242 does not
characterize the Green Line as permanent.
Perhaps even more significantly, nowhere does
Resolution 242 require Israel to withdraw from "all" of
"the" territories captured from Jordan, Egypt and Syria. As was
explained by the late Eugene Rostow, a former U.S. Undersecretary of State who
participated in the drafting of Resolution 242, the exclusion of the adjective
"all" and the definite article "the" was intentional and
indicative of the essential meaning.
Resolution 242, which as undersecretary of
state for political affairs between 1966 and 1969 I helped produce, calls on
the parties to make peace and allows Israel to administer the territories it
occupied in 1967 until 'a just and lasting peace in the Middle East' is
achieved. When such a peace is made, Israel is required to withdraw its armed
forces 'from territories' it occupied during the Six-Day War — not from 'the'
territories nor from 'all' the territories, but from some of the territories,
which included the Sinai Desert, the West Bank, the Golan Heights, East
Jerusalem, and the Gaza Strip.
. . .
Five-and-a-half
months of vehement public diplomacy in 1967 made it perfectly clear what the
missing definite article in Resolution 242 means. Ingeniously drafted
resolutions calling for withdrawals from 'all' the territories were defeated in
the Security Council and the General Assembly. Speaker after speaker made it explicit
that Israel was not to be forced back to the 'fragile' and 'vulnerable'
Armistice Demarcation Lines ['Green Line'], but should retire once peace was
made to what Resolution 242 called 'secure and recognized' boundaries ...
("The Future of Palestine," Rostow, Eugene V., Institute for National
Strategic Studies, November 1993.)
Furthermore, the black letter of Resolution 242
applies only to incorporated "states," not to amorphous groups of
people known as "Palestinians," who did not constitute a state
involved in the conflict and who, thus, were not mentioned in the resolution.
Although Resolution 242 does mention the issue of refugees, the term as used
therein refers to individual Jews and Arabs who lost their homes during the war
in 1948, not to a displaced Palestinian nationality that never existed. The
Palestinians as a group had no national interest in the land; and to the extent
that Jordan conveyed to the Palestinians its interest in Judea and Samaria as
part of the Oslo process, it must be remembered that Jordan never possessed
lawful title in the first place.
.
Demographic Reality Favors Annexation
Nearly 60% of Judea and Samaria rests within
"Area C," which has a Jewish population exceeding 300,000 and is
currently under Israeli control. (The Oslo Accords established three
administrative divisions, known as Areas A, B and C.) In contrast, the Arab
population there is calculated only in the tens of thousands. There are also
more than 200,000 Jews living in greater Jerusalem neighborhoods beyond the
Green Line. Consequently, despite Arab-Muslim and left-wing propaganda warning
of an Arab demographic time bomb, Jews actually comprise the majority in the
territories under Israeli control and are not likely to be dispossessed. There
is no doubt that these territories were historically Jewish, and that the
Arab-Muslim population accrued largely through immigration during the late
Nineteenth Century and the British Mandatory period.
There is a two-thirds Jewish majority when
Israel and the territories she controls are combined; and based on increasing
Jewish and declining Arab population trends, the Jewish majority is likely only
to increase in the future. Moreover, the Jewish population in Israel proper is
growing as well. As noted by demographer Bennett Zimmerman in a Jerusalem Post
interview back in 2007: "for the first time since 1967, Israel has a
stable 2-1 Jewish majority . . . [and] a two-thirds Jewish majority in
Jerusalem." The demographic threat appears therefore to be nothing more than
politically motivated propaganda, particularly as it relies on conjecture,
surmise and doubtful census statistics that overstate the Palestinian
population by as much as half.
In addition, analysis of the Arab population
shows that it is not composed of a uniform cultural group with common roots in
the land. The population in Gaza, for example, is largely Bedouin in origin
with no long-standing, sedentary history in the land. In contrast, the
population in Judea and Samaria was always more village- or town-centered and
is descended from immigrants from other parts of Arab world and the former
Ottoman Empire. Thus, the Palestinians do not comprise a singular cultural
stock, but rather reflect the heterogeneous make-up of the wider Arab-Muslim
world, which is home to disparate and often clashing, religious, ethnic, and
cultural groups and minorities.
Indeed, the Arab world is a diverse hodgepodge
containing various ethnic groups, such as Arabs, Copts, Kurds, Berbers, Turks,
Maronites, Armenians, and Circassians, as well as assorted religious groups,
including Sunnis, Shiites, Alawites, Christians and Zoroastrians. Though these
groups are often at odds, they have been forced together into modern states
that were arbitrarily created by the European mandatory powers. The boundaries
of Jordan, Syria, Iraq and Lebanon, for example, were drawn to include ethnic
and religious groups that have been enemies for generations and who continue to
persecute and slaughter one another. The European powers never understood the
ethnic and religious complexities of Mideast society during the mandatory era,
and today attempt to enforce a dysfunctional dynamic on Israel without regard
for the ethnic, cultural and religious differences among those who now call
themselves Palestinians.
Considering the irreconcilable intricacies of
Mideast culture, and the suspect motivations of the progressive west in
attempting to force the creation of a Palestinian state, Israel would be better
served by annexing those territories that are integral to her security and
continuity as a Jewish state. That is the only reality that will insure her
survival.
Formal or Passive Annexation
Although the subject of annexation was made
taboo by the political left in Israel and abroad, it has recently become an
acceptable topic for discussion. This should not be surprising because Israel
has already annexed some of the territory — i.e., Jerusalem and the Golan —
that she liberated while defending herself in a war started by Egypt, Jordan
and Syria. Jerusalem was formally annexed shortly after the 1967 War, while the
Golan was informally incorporated through the extension of Israeli civil law
there in 1981.
The concept of incorporating land by either
method, or a combination of the two, has been the subject of growing interest —
and not only from the settler movement. Those favoring formal annexation
believe it would manifest the reality that Israel already controls those
territories that are necessary for her survival. Others advocate the formal
integration of Judea and Samaria and the extension of Israeli law to the Jordan
Valley. Still others advocate de facto annexation by the extension of Israeli
civil law throughout Judea and Samaria and the institution of economic
incentive programs to integrate the Israeli and territorial economies.
Issues to be determined would include whether
to provide Arab inhabitants of the territories with the opportunity for
citizenship, grant them permanent resident status, or compensate them for
moving elsewhere. However, given that the original intent of San Remo and the
Mandate was to restore to the Jews their ancestral homeland, and that an Arab
state in Jordan was created on three-quarters of the territory under the
Mandate, Israel arguably has no legal or ethical obligation to extend any citizenship
benefits, particularly to those who reject her right to exist as a Jewish
state.
Regardless of the methods to be employed,
Israel certainly has valid historical and legal claims to Judea and Samaria.
How she chooses to express those claims are matters to be determined by her and
her alone. The international community has shown that it has no intention of
supporting Israel's historical rights or legal interests, but seeks instead to
force the creation of a Palestinian state at the expense of those very rights
and interests. Therefore, Israel can rely only on herself to craft a solution
that makes legal, historical and moral sense, and which assures her security
and continuity as a democratic, Jewish state.
Matthew Hausman is an attorney living in
Connecticut. We are reprinting one of his articles that appeared August 8, 2011
in IsraPundit and was a feature article in the Think-Israel September-October
2011 Issue.
Two states for two
people, Jordan must contribute
In the most extensive remarks to date on his proposed Middle
East agreement, U.S. President Bill Clinton made a plea Sunday for peace,
telling U.S. Jewish leaders their land also is the Palestinians' homeland and
"there is no choice but for you to divide this land into two states for
two people." -- Speech to the Israel Policy Forum, Jan 7, 2001
Yet Jordan is also Palestine. Here are two Jordanian State
Stamps one from 1964, bearing the likeness of King Hussein and pictures
Mandated Palestine as an undivided territory [All of Israel of today plus
Jordan of today]..., the other a 1949 stamp pictures King Abdullah of the
kingdom of Jordan and bears the label of Palestine in English and Arabic.
The land on which Israel was located contained only a fraction of
the Palestine Mandate originally dedicated to the Jews as their homeland,
incorporating the Balfour Declaration.1 The League of Nations and the British had
designated the land called "Palestine" for the "Jewish National
Home" -- east and west of the Jordan River from the Mediterranean to
Arabia and Iraq, and north and south from Egypt to Lebanon and Syria.2Historian Arnold Toynbee observed in 1918 that the
"desolate" land "which lies east of the Jordan stream,"3 was
capable of supporting a large population if
irrigated and cultivated scientifically. ... The Zionists have as much right to
this no-man's land as the Arabs, or more.
Thus, the territory known variously as "Palestine,"
as "South Syria," as "Eastern and Western Palestine," or as
part of "Turkey" had been designated by international mandate as a
"Jewish National Home," concerning which the United States declared,
That there be established a separate state of
Palestine.... placed under Great Britain as a mandatory of the League of
Nations ... that the Jews be invited to return to Palestine and settle
there.... and being further assured that it will be the policy of the League of
Nations to recognize Palestine as a Jewish state as soon as it is a
Jewish state in fact. . . . England, as mandatory, can be relied on to
give the Jews the privileged position they should have without sacrificing the
[religious and property] rights of non-Jews.4
The Arabs of that day achieved independent Arab statehood in
various lands around Palestine but not within Palestine itself Sovereignty was
granted after World War I to the Arabs in Syria and Iraq; in addition, Saudi
Arabia consisted of approximately 865,000 square miles of territory that was
designated as "purely Arab"5
Considering all the "territories" that had been given to
the Arabs, Lord Balfour "hoped" that the "small notch" of
Palestine east and west of the Jordan River, which was "being given"
to the Jewish people, would not be "grudged" to them by Arab leaders
.6
But, in a strategic move, the British Government apparently felt
"the need to assuage the Emir's [Abdullah's] feelings."7 As one of the royal sons of the Hejaz (Saudi
Arabia), Abdullah was a recipient of British gratitude; the Arabians of the
Hejaz had been, among all the Arab world, of singular assistance to England
against the Turks8
The insertion of Abdullah and his emirate into mandated Palestine,
in the area east of the Jordan River that was part of the land allocated to the
"Jewish National Home," might be partially traced to a suggestion
received by Colonial Secretary Winston Churchill from T. E. Lawrence. In a
letter of January 1921, Lawrence informed Churchill that Emir Feisal
(Abdullah's brother, and Lawrence "of Arabia's" choice to lead the
Arab revolt)9 had "agreed to abandon all
claim of his father to [Western] Palestine," if Feisal got in return Iraq
and Eastern Palestine as Arab territories. [See Feisal-Weizmann
agreement]
Further explanation was found in a "secret dispatch from Chief
British Representative at Amman" later in 1921. He cautioned that the
local "Transjordanian Cabinet" had been replaced by a "Board of
Secretaries,"
responsible for all internal affairs, referring
to his highness Abdullah for a decision in the event of any disagreement....
All the "Board" members, according to the Eastern
Palestine envoy, were
Syrian exiles, who with perhaps one exception,
are more interested in designs on the French in Syria than in developing
Trans-Jordania.... In his Highness' opinion, the allies had not dealt fairly
with the Arab nation and Great Britain had not treated him as he deserved. He
was one of the most chiefly instrumental in bringing about the Arab revolution
and when Feisal, during the war, was inclined to accept the overtures of the
Turks he had opposed that policy.... When he came to Trans-Jordania "with
the consent of the British", he had agreed to act in accordance with Mr.
Churchill's wishes and with British policy, as he did not wish to be the cause
of any friction between the British and their allies, the French.
... The allies had not dealt fairly with the Arabs because, whereas
they had agreed to form one Arab nation, forming different Arab states, and
even in Syria, as small as it is, they had divided that country into six or
seven states. He had come to Trans-Jordania hoping for great things and now he
realized that he had no hope either north or east. If he went back from
here to the Hejaz, he would look ridiculous.10
Winston Churchill proposed his plan for Transjordan to Prime
Minister Lloyd George in March 1921:
We do not expect or particularly desire, indeed,
Abdullah himself to undertake the Governorship. He will, as the Cabinet rightly
apprehend, almost certainly think it too small.... The actual solution which we
have always had in mind and for which I shall work is that which you described
as follows: while preserving Arab character of area and administration to treat
it as an Arab province or adjunct of Palestine.11
It was a British Jew, Palestine High Commissioner Sir Herbert
Samuel, who supported and even extended Winston Churchill's formulations.
Samuel sent a telegram to Churchill in July 1921; while discouraging Churchill
from submitting to Abdullah's predicted eventual "demand" for
"attachment of Trans-Jordania to, the Hejaz," as being "contrary
to Article V of the Mandate and open to much objection in relation to future
development," High Commissioner Samuel suggested the following:
I concur in proposal that Abdullah should visit
London and had written to you suggesting it.... At the end of six months, the
following settlement might be arranged: (1) the Arab governor mutually agreed
upon by his majesty's government and Abdullah or King Hussein. (2) British
officer(s) to have real control. (3) Reserve force commanded by British
officer(s), Air Force and armored cars as at present. (4) A small British
garrison to be stationed in District temporarily. (5) A declaration in
accordance with new article to be inserted in mandate that Jewish National Home
provisions do not apply east of Jordan. This would not prevent such Jewish
immigration as political and economic conditions allowed but without special
encouragement by Government. 12
Feisal got his wishes and became King of Iraq;13 his brother Abdullah was installed
in the British mandatory area as ruler of the "temporary" emirate on
the land of eastern Palestine, which became known as the "Kingdom of
Transjordan."
Palestine High Commissioner Harold MacMichael later offered some
evidence -- of the original "temporary" nature of British intentions
in a "private, personal and most secret" cipher; MacMichael reported
in 1941 that Abdullah now harbored greater ambitions, because of
the part he [Abdullah] played in the last war,
his position in the Arab world as a senior member of a royal house, [and] the
purely temporary arrangements whereby in 1921 having narrowly missed
being made King (a) of Iraq and (b) of Syria in turn, he was left to look after
Trans-Jordan .... 14
Britain nevertheless quietly gouged out roughly three-fourths
of the Palestine territory mandated for the Jewish homeland15into an Arab emirate, Transjordan,16 while the Mandate ostensibly
remained in force but in violation of its terms.17Historians and official government
documents concerned with the area continued to call it "Eastern
Palestine," despite the new appellation. That seventy-five percent of the
Palestine mandate was described by England's envoy to Eastern Palestine:18 "a reserve of land for use in
the resettlement of Arabs [from Western Palestine], once the National Home for
the Jews in Palestine"* resulted in the "Jewish independent
state."
The League of Nations Mandate for Palestine remained unchanged even
though Britain had unilaterally altered its map and its purpose.19 The Mandate included Transjordan
until 1946, when that land was declared an independent state.20Transjordan had finally become the de
jure Arab state in Palestine just two years before Israel gained its Jewish
statehood in the remaining one-quarter of Palestine; Transjordan comprised
nearly 38,000 square miles; Israel, less than 8,000 square miles.
[* As the next chapters will illustrate, instead, Arabs poured from
Eastern Palestine as well as from Arab areas within Western Palestine -- into
the Jewish -- settled areas in Western Palestine. The course of action which
followed from that unrecognized population movement brought ramifications which
are as critical to the question of political "justice" as they are
unknown or disregarded today.]
Thus, about seventy-five percent of Palestine's "native
soil," east of the Jordan River, called Jordan, is literally an
independent Palestinian-Arab state located on the majority of the land of
Palestine; it contains a majority of Palestinian Arabs in its army as well as
its population. In April 1948,21 just before the formal hostilities
were launched against Israel's statehood, Abdullah of Transjordan22 declared: "Palestine and
Transjordan are one, for Palestine is the coastline and Transjordan the
hinterland of the same country." Abdullah's policy was defended against
"Arab challengers" by Prime Minister Hazza al-Majali:
We are the army of Palestine.... the overwhelming
majority of the Palestine Arabs ... are living in Jordan.23
Although Abdullah's acknowledgment of Palestinian identity
was not in keeping with the policy of his grandson, the present King Hussein,
Jordan is nonetheless undeniably Palestine, protecting a predominantly Arab
Palestinian population with an army containing a majority of Arab Palestinians,
and often governed by them as well. Jordan remains an independent Arab
Palestinian state where a Palestinian Arab "law of return" applies:
its nationality code states categorically that all Palestinians are entitled to
citizenship by right unless they are Jews.24 In most demographic studies, and
wherever peoples are designated, including contemporary Arab studies, the term
applied to citizens of Jordan is "Palestinian/Jordanian." In 1966 PLO
spokesman Ahmed Shukeiry declared that25
The Kingdom of Palestine must become the
Palestinian Republic....
Yasser Arafat has stated that Jordan is Palestine. Other Arab
leaders, even King Hussein and Prince Hassan of Jordan, from time to time have
affirmed that "Palestine is Jordan and Jordan is Palestine."
Moreover, in 1970-1971, later called the "Black September" period,
when King Hussein waged war against Yasser Arafat's Arab PLO forces, who had
been operating freely in Jordan until then, it was considered not an invasion
of foreign terrorists but a civil war. It was "a final crackdown"
against those of "his people"26 whom he accused of trying to
establish a separate Palestinian state, under Arab Palestinian rule instead of
his own, "criminals and conspirators who use the commando movement to
disguise their treasonable plots," to "destroy the unity of the
Jordanian and Palestinian people."27
Indeed, the "native soil" of Arab and Jewish
"Palestine's" each gained independence within the same two-year
period, Transjordan in 1946 and Israel in 1948. Yet today, in references to the
"Palestine" conflict, even the most serious expositions of the
problem refer to Palestine as though it consisted only of Israel -- as in the
statement, "In 1948 Palestine became Israel."28 The term "Israel" is
commonly used as if it were the sum total of "Palestine."
However, within what Lord Balfour had referred to
as that "small notch" sometimes called Palestine, the "Jewish
National Home" had been split into two separate unequal Palestine's: Eastern
Palestine-or the Arab emirate of Transjordan-and Western Palestine, which
comprised less than one-fourth of the League of Nations Mandate. The portion of
the "notch" of land on which the Jews settled and in which most Jews
actually lived -- from the 1870s and 1880s through the 1940s -- was in fact
only a segment of the area of Western Palestine.
The East Bank and the
West Bank, same situation
If Israel must give up a portion, or all of WEST BANK land,
which was part of the British Mandated "Palestine" or Jewish National
Home, it is only logical that Jordan must give up a proportiately large amount
of EAST BANK land which was also part of the British Mandated
"Palestine" or Jewish National Home.
Each country, Israel and Jordan should contribute land according to
the number of Palestinians residing in their country. (Most Palestinians
in Jordan live on the EAST BANK)
Area
|
Population
|
Percentage of total
Palestinian
population
|
Jordan
|
2,272,000
|
30.7%
|
West Bank
|
1,572,000
|
21.3%
|
Gaza
|
963,000
|
13.0%
|
Israel
|
1,095,000
|
14.8%
|
Lebanon
|
356,000
|
4.8%
|
Syria
|
325,000
|
4.3%
|
Egypt
|
54,000
|
0.7%
|
Iraq
|
33,000
|
0.4%
|
Libya
|
38,000
|
0.4%
|
Rest of Arab Countries
|
319,000
|
4.3%
|
United State of America
|
159,000
|
2.2%
|
Other Countries
|
209,000
|
2.8%
|
Total
|
7,395,000
|
100%
|
|
Table: Estimated Palestinian Population
Worldwide, mid-1996 |
Palestinians are by law guaranteed the RIGHT OF RETURN to Jordan,
where they are entitled to citizenship, "unless they are Jews."
Jordan is very much afraid that it will be declared THE PALESTINIAN
STATE, Jordan has NEVER allowed publication of the percentage of Palestinians
in its population. Jordan is also afraid that someone might suggest to take a
portion of its territory for a Palestinian state. MORE THAN TWICE the
number of Palestinians live on the EAST BANK of the Jordan River in Jordanian
territory, than live on the WEST BANK.
1. The Old Testament indicates that historic
Palestine included land on both sides of the Jordan River, east bank as well as
west bank, including the territory now known as Jordan. The portion of historic
Palestine east of the Jordan River equaled or exceeded in area the portion west
of Palestine. In biblical times the tribe of Manasseh occupied more territory
to the east of the Jordan River than to the west, the entire tribe of Reuben
dwelled east of the Jordan, and the land called Gad was east of the Jordan.
Mount Gilead and Ramoudh Gilead all were east of the Jordan, as were other
biblical places and people. (See map, page 12, Literary and Historical Atlas of
Asia, prepared by J. G. Bartholomew for the Everyman Library.) Even in the time
of the New Testament (as shown by the map in Appendix 1). the land included
territory on the east side of the Jordan River as well as the west. The New
Testament city of Philadelphia was well east of the Jordan River, as was the
city of Golan, which was part of Palestine, according to the Old Testament as
well as the New. For an additional example, see Rand McNally Atlas of World
History, ed. R.R. Palmer, Chicago, 1957, p. 25.
2. For map of Palestine, east, see 0. R. Conder,
The Survey of Eastern Palestine, Committee of the Palestine Exploration Fund,
London, 1889; also see J. Stoyanovsky, The Mandate for Palestine (London, New
York, Toronto, 1928), pp. 66, 204---210. Arthur Balfour's memorandum of August
11, 1919, stated: "Palestine should extend into the lands lying east of
the Jordan." Balfour, who led the British delegation to the Paris Peace
conference (in 1919) "determined the frontiers" Of Palestine in a
memorandum to Prime Minister Lloyd George, June 26, 1919: "In determining
the Palestinian frontiers, the main thing to keep in mind is to make a Zionist
policy possible by giving the fullest scope to economic development in
Palestine. Thus, the Northern frontier should give to Palestine a full command
of the water power which geographically belongs to Palestine and not to Syria;
while the Eastern frontier should be so drawn as to give the widest scope to
agricultural development on the left bank of the Jordan, consistent with
leaving the Hedjaz Railway completely in Arab possession."
3. December 2, 1918-Toynbee minute: Foreign
Office Papers; 371/3398-Amold Toynbee agreed with the Mandate: "It might
be equitable [to include in Palestine] that part ... which lies east of the
Jordan stream ... at present desolate, but capable of supporting a large
population if irrigated and cultivated scientifically ... The Zionists have as
much right to this no-man's land as the Arabs, or more," cited in Martin
Gilbert, Exile and Return, p. 115. See also David Lloyd George, The Truth About
the Peace Treaties (vol. 1), pp. 1144-1145.
4. United States recommendation at the Paris
Peace Conference, January 21, 1919. See also U.S. Congressional Resolution,
June 30, 1922, in Survey of Palestine, p. 21.
5. In Arabia itself, largely equivalent to
present Saudi Arabia, Jews had been present and had developed towns such as
Medina and Khaibar, where they thrived from Roman days and before, until the
conquest by Muhammad and subsequent directions from Omar. Then the Jews were
slaughtered or their land expropriated and Jews were forced to flee for their
lives if they did not convert to Islam. Many of those Jews in the seventh
century fled as refugees back to "Palestine," where Jewish
inhabitants could even then be found in most towns referred to today as purely
Arab areas.
Into the
twentieth century, between 3,000 and 5,000 Jews lived in "purely Arab
towns," such as Jenin, Tyre, Sidon, and Nablus during the Turkish
domination; roughly 1,500 held on under the British Mandate; and in 1944-1947,
zero. Those towns had been rendered judenrein by Arab pogroms; see Chapter 9.
6. Lord Balfour speech, July 12, 1920, cited in
Palestine Royal Commission Reporl, para. 27, p. 27, 1937; see maps in this
chapter and Appendix 1. See n. 15 here.
7.High Commissioner Harold MacMichael to the
Secretary of State for the Colonies, regarding Transjordan, cipher telegram,
private, personal and most secret, 1941, PRO C0733/27137.
8. David Lloyd George, The Truth About the Peace
Treaties, pp. 1119, 1140. Also see Esco, Palestine, vol. 1, pp. 641
9. Gilbert, Exile, p. 132; see T.E. Lawrence,
Revolt in the Desert, about Abdullah, particularly pp. 1-7. Feisal's role is
woven throughout Lawrence's account. Also see King Abdullah of Jordan, My
Memoirs Completed (Washington, D.C., 1954).
10. August 1, 1921, Secret dispatch #2301/pol.,
C0733/41683, Enclosure "A," Report No. 6.
11. PRO FO 371/6342, March 23, 1921.
12. July 4, 1921, telegram to Secretary of State
for the Colonies, C0733/35186; response to "Very Confidential" memo
"from the Civil Secretary after his recent tour in Trans-Jordania,"
Churchill to Samuel, July 2, 1921, C0733/36252.
13.Churchill Papers 17/14, January 17,1921; cited
in Gilbert, Exileand Return, p. 132; the British chose Feisal to be King in
March 192 1, at the Cairo Conference. See Esco, Palestine, pp. 121-126.
14.MacMichael hoped in 1941 to offer Abdullah a
"consolation prize" of "Trans Jordan" when the country
gained independence of the Mandate, and after Abdullah "has realized that
his hopes ... for Syria ... are vain. We simply cannot have recrimination of
these pledges to the Arabs until we are absolutely clear how and when they are
to be converted into practice. The smaller the time gap between any promise and
its implementation, the better. . . . " MacMichael to the Secretary of State
for the Colonies, PRO C0733/27137.
15.According to the 1937 Palestine Royal
Commission Report, "Trans-Jordan was cut away from that field [in which
the Jewish National Home was understood to be established at the time of the
Balfour Declaration.... the whole of historic Palestine]." The reason
given was the later claim of the Arabs that a letter, called the McMahon
pledge, from Sir Henry McMahon on October 24, 1915, had included Palestine in
the territory that Britain promised to the Arabs. A formal Arab protest, called
"The Holy-land. The Muslim-Christian Case Against Zionist Aggression,"
was not declared until November 1921, six years after the date of the McMahon
letter and four years after the Balfour Declaration. The fact that McMahon had
excluded Palestine from his promise-as had the Emir Feisal excluded it from his
request at the Paris Peace Conference in 1919, ignoring the McMahon letter-was
conspicuously absent. The British government's failure to publish the complete
correspondence gave credence to what otherwise would have been a quickly
squelched, rather obvious ploy, until 1939, when a committee of British and
Arab delegates scrutinized the correspondence; the British then determined
that, in the words of one delegate, the Lord High Chancellor, Lord Maugham,
"The correspondence as a whole, and particularly ... Sir Henry McMahon's
letter of the 24th October, 1915, not only did exclude Palestine but should
have been understood to do so. . . ." Similar testimony came from many
eminent British government officials. Most notably, from Sir Henry McMahon
himself. in The Times of London, July 23,1937, McMahon wrote, "I feel it
my duty to state, and I do so definitely and emphatically, that it was not
intended by me in giving this pledge to King Hussein to include Palestine in
the area in which Arab independence was promised. I also had every reason to
believe at the time that the fact that Palestine was not included in my pledge
was well understood by King Hussein." The British case supporting McMahon
was strengthened even further by the fact that Feisal waited until January 29,
1921-nearly six years later-to bring up the subject, and then he was quoted by
Winston Churchill as being "prepared to accept" the exclusion of
Palestine. The logical deduction to be made from the plethora of evidence seems
clear: Palestine was indeed excluded-and in any case, the Balfour Declaration
was incorporated by the Council of the League of Nations and was thus binding
upon its trustee, England as Mandatory power, while no British letter of pledge
could have been binding even if one had been given. Nevertheless, Arabs and
their supporters have continued to attempt to cast doubt, as though the written
documents didn't exist. Significantly, however, the 1937 Palestine Royal Commission
Report, which was issued the same year that McMahon published his Times
rejoinder, made the recommendation that "Transjordan should be opened to
Jewish immigration." It never was. Palestine Royal Commission Report, pp.
22-38; for texts of several British witnesses and full McMahon text: Esco,
Palestine, vol. 1, p. 1811 Great Britain, Correspondence, Cmd. #5957; Churchill
White Paper, June 3, 1922, Statement of British policy in Palestine, Cmd. #
1700, p. 20; Lloyd George, The Truth About the Peace Treaties, vol. 11, pp.
1042, 1140-1155; D.H. Miller, Diary, vol. XIV, pp. 227-234 and 414, vol. 11,
pp. 188-189, vol. XVII, p. 456; H.F. Frischwasser-Ra'anan, The Frontiers of a
Nation (London: Batchworth Press, 1955), pp. 104-107. Frischwasser-Ra'anan
writes of the statement by British Foreign Office expert on the Near East, Lord
Robert Cecil: " 'Our wish is that the Arab country shall be for the Arabs,
Armenia for the Armenians and Judea for the Jews,"' pp. 104-105; Antonius,
Arab Awakening, pp. 390-392; The Letters of TE. Lawrence, David Garnett, ed.
(Doubleday, Doran, 1939), pp. 281-282; for international legal interpretation,
see J. Stoyanovsky, The Mandate for Palestine (London, New York, Toronto:
Longmans, Green & Co., 1928), pp. 66, 205-223; Parliamentary Debates,
Commons, vol. 113, col.115-116, May 23,1939, for the views of the Archbishop of
Canterbury; for examples of discussion of the McMahon-Hussein matter that omit
available evidence described or referred to above, and suggest support of the
Arab protestations, see William B. Quandt, Fuad Jabber, Ann Mosely Lesch, The
Politics of Palestinian Nationalism (Berkeley, Los Angeles, London: University
of California Press, 1973), pp. 8-11; John S. Badeau, East and West of Suez (New
York: The Foreign Policy Association, 1943), p. 45.
16.In the Anglo-American Committee's
"Historical Summary of Principal Political Events in Palestine Since the
British Occupation in 1917," a chronological summary beginning in 1917, no
mention at all is made of the gift of Transjordan to the Arabs by the
British-neither in the 1922 summary nor in 1928, when an "organic
Law" was enforced, nor in 1929 when the ratification of the
"Agreement" took place. See Summary in Survey of Palestine, vol. 1,
pp. 15-25. Yet that act, which severed roughly seventy-five percent of the
Mandate of Palestine, is ignored as a "principal political event"-the
de facto creation of an Arab state on seventy-five percent of what had been
deemed the "Jewish National Home," and which had been specifically
set aside by the British and Arabs alike as an area "not purely
Arab," as compared to Iraq and Syria. In the chapter preceding the
"Summary," the Arabs' acquisition of an Arab-Palestinian state-a
Palestinian state surely no less than Israel became-is presented as afait
accompli. "Prior to the 12th August, 1927, the High Commissioners for
Palestine included within their jurisdiction the entire Mandatory area without
separate mention of Transjordan. Since that date, however, the High
Commissioners have received separate commissions for Palestine and Trans-Jordan
respectively. " See Survey of Palestine, p. 14. (Emphasis added.) In the
Summary, however, exhaustive attention is drawn to the Balfour Declaration and
its ramifications upon the Arab community in Palestine; on the rioting-
"The hostility shown towards the Jews [which was] ... shared by Arabs of
all classes; Moslem and Christian Arabs, whose relations had hitherto been
uneasy, were for once united. Intense excitement was aroused by the wild
anti-Jewish rumors which were spread during the course of the riots." See
Haycraft Inquiry, October 192 1, in Survey of Palestine, pp. 18, 19.
17.The only proposal Britain as Mandatory power
submitted to the League of Nations "during the lifetime of the League. .
." was a 1922 memorandum citing Article 25 of the Mandate; Article 25
allowed the Mandatory power "with the consent of the Council of the League
of Nations, to postpone or withhold application of such provisions of the
mandate as he may consider suitable to those conditions, provided that no
action ... is inconsistent with ... Article 15, 16 and 18." The article
referred to "the territories lying between the Jordan and the Eastern
boundary of Palestine ...... the eastern boundary being the Hejaz (Saudi Arabia).
In Dr. Paul S. Riebenfeld, "Israel, Jordan and Palestine,"
(unpublished manuscript), pp. 10-18ff, exhaustive study of documentation
concerning TransJordan and the Mandate. In fact it appears that, to humor Emir
Abdullah, the British gave the appearance of a severance, with the real
consequences of a severance from Palestine upon the Jewish National Home, and
the de facto creation of the Palestinian Arab state, while the British never
attempted to legalize their actions, only to record them; "the only legal
action ever taken by the British Government" was taken under Article 25:
the Resolution of September 16, 1922. League of Nations Official Journal,
November 1922, pp. 1390-1391; Riebenfeld, ibid., p. 18. For an absorbing
account of "what exactly happened on September 16, 1922" see Dr.
Riebenfeld's "Integrity of Palestine," Midstream, August/September,
1975, p. 12ff; also see Ernest Frankenstein, Justice for My People.
18. Alec Kirkbride, A Crackle of Thorns (1956),
pp. 19-20. Kirkbride goes on to say, however, that "There was no
intention" in 1920 "of forming the territory east of the river Jordan
into an independent Arab state." Also see Palestine Royal Commission
Report, suggesting that Transjordan-Eastem Palestine-"if fully developed
could hold a much larger population than it does at present," p. 308.
19.When Britain -entered into an agreement to
transfer the exercise of administration on February 20, 1928, the League of
Nations Permanent Mandates Commission challenged the agreement as a
"conflict with the Mandate for Palestine." Quincy Wright, Mandates
Under the League of Nations (Chicago: University of Chicago Press, 1930), p.
458. The statement of the Commission (in part) was: "Since the Commission
is charged with the duty of seeing that the mandate is fully and literally
carried out, it considers it necessary to point out in particular, Article 2 of
the Agreement, which reads as follows: "'The powers of legislation and
administration entrusted to His Britannic Majesty as mandatory for Palestine
shall be exercised in that part of the area under Mandate known as Transjordan
by His Highness the Amir . . .' does not seem compatible with the stipulation
of the Mandate of which Article I provides that: 'The mandatory shall have full
powers of legislation and of administration, save as they may be limited by the
terms of this mandate."' League of Nations, Official Journal, Oct. 1928,
p. 1574; also see pp. 1451-1453; also in Riebenfeld, Israel, Jordan and
Palestine, pp. 24-25; ... At that point Britain's Council member "explained
that Great Britain still regarded itself as responsible for the ... mandate in
TransJordan and the Council was satisfied." Quincy Wright, Mandates Under
the League ofNations (Chicago: University of Chicago Press, 1930), p. 458; as
another example, in 1937 the Permanent Mandates Commission, at the 32nd
Session, insisted that no obstacle should "prevent that Jewish National
Home being established." Minutes of the 32nd Session, p. 90.
20. May 1946. See Chapter 17.
21. April 12, 1948, Arab League Resolution: No
partition would be acceptable, and a Palestine must be liberated from the
Zionists; on April 16, 1948, Abdullah abolished the Jordan Senate and appointed
20 new Senators: 7 Senators were Palestinian Arabs; on April 24, 1948, Jordan's
House of Delegates and House of Notables, in joint session of Parliament,
adopted a resolution: ". . . basing itself on the right of
self-determination and on the existing de facto position between Jordan and
Palestine and their national, natural and geographic unity and their common
interests and living space. . . ." The parliament supported the
"unity between the two sides of the Jordan Cited in
"Jordan
Annexes Arab Palestine," by Benjamin Schwadran, Middle Eastern Affairs;
vol. 1, no. 4, April 1950.
22. April 12, 1948, cited in Paul Riebenfeld,
"The Integrity of Palestine", in Midstream, August-September 1975, p.
22.
24. Jordanian Nationality Law, Official Gazette,
No. 1171, Article 3 (3) of Law No. 6, 1954, February 16, 1954, p. 105.
25. Ahmed Shukeiry to the Council of the Arab
League, November 1966, cited in Riebenfeld, "The Integrity,"
Midstream, p. 23.
26.Mohamed Heikal, Road to Ramadan (New York:
Ballantine Books, 1975), p. 96. See Heikal's account of a meeting between Arab
heads of state, including King Faisal, Ghadaffl, and President Nasser;
according to Heikal, King Hussein's war ended September 27, 1970, with the
signed agreement between Hussein and Yasser Arafat, and the "withdrawal of
all ... forces from every city in the country" (p. 99). According to
another source, the ceasefire took place September 25, but fighting continued
well into 1971. Political Terrorism, edited by Lester Sobel (New York: Facts on
File, Inc., 1975), cited in Hashemite Kingdom of Jordan and the West Bank edited
by Anne Sinai and Allen Pollack (New York: American Academic Association for
Peace in the Middle East, 1977), p. 60.
27. June 2, 1971: Hussein's orders to Jordanian
Premier Wasfi Tel, cited in Hashemite Kingdom, p. 61.
This page was produced by Joseph E. Katz
Middle
Eastern Political and Religious History Analyst
Brooklyn,
New York
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WHY IS THE SAN REMO
CONFERENCE SO IMPORTANT?
by: Canadians for
Israel's Legal Rights
The San Remo Conference of 1920 was built upon
a series of events which occurred before, during and immediately after World
War One, and which are summarized below:
- The
birth of modern Zionism under Theodor Herzl in 1897.
- The
Balfour Declaration of 1917, where Britain "views with favour the
establishment in Palestine of a national home for the Jewish people."
(expression of British foreign policy).
- The
defeat of the Turks in Palestine, in 1917
- The
Fourteen Points of U.S. President Wilson (1918), which called for an end
to secret treaties between nations; emphasized the interests of the
populations concerned; and advocated for the creation of a "general
association of nations."
- The
Paris Peace Conference and the birth of the League of Nations, in 1919.
- The
adoption of Article 22 of the Covenant of the League of Nations,
instituting the Mandates System in the post-war period.
The adoption of a legal mechanism for the
dispossession of Turkey of their formerly held lands in the Middle East.
This sequence of events led to the San Remo
Conference (April, 1920) where the map of the Middle East was redrawn, and a
major Resolution was adopted by the Supreme Council of the Principal Allied
Powers (Britain, France, Italy, Japan), with the United States acting as an
observer[*]:
- For
the first time in history, Palestine became a legal entity.
- All
prior agreements concerning the region were terminated, including the
Sykes-Picot Agreement between France and Britain.
- The
Balfour Declaration was incorporated in the Resolution and its implementation
was required; it became an act of international law.
- Palestine
was placed under a British Mandate, with Britain acting as a trustee, and
required to put into force the provisions of the Balfour Declaration.
- The
legal title to Palestine was transferred from the Allied Powers to the
Jewish people. The title on Palestine is non-revocable.
- The
Jewish people became the national beneficiary of the Mandate for
Palestine, on the grounds of their historical connection to the land. The
de jure sovereignty of Palestine was vested in the Jewish people.
- The
San Remo Resolution was adopted and later included in the Treaty of Sèvres
(Art. 94-97). These provisions remain in force, even though the Treaty of
Sèvres was not ratified by the later Turkish government of Kemal Ataturk.
- The
Arabs received equivalent national rights in Syria/Lebanon, Mesopotamia
(present-day Iraq). For different reasons, Jordan became also an
exclusively Arab country.
- The
San Remo Conference also marks the end of the longest period of foreign occupation/colonization
in history (1,850 years of dispossession of the Jewish people in their
ancestral Land of Israel).
[*] The United States was not a member, hence
had no voting power. It did endorse the Mandate for Palestine. As Eli E. Hertz
writes:
On June
30, 1922, a joint resolution of both Houses of Congress of the United States
unanimously endorsed the "Mandate for Palestine," confirming the
irrevocable right of Jews to settle in the area of Palestine — anywhere between
the Jordan River and the Mediterranean Sea. [... On September 21, 1922, the
then President Warren G. Harding signed the joint resolution of approval to
establish a Jewish National Home in Palestine.
(http://www.mythsandfacts.com/article_view.asp?articleID=100)
RECLAIM JEWISH LAND; REJECT THE TWO-STATE SOLUTION
The notion of a 2-state solution stays alive,
first, because it is coercively presented as the only possible solution:
"Give away Biblical Israel to those nice Palestinians OR the bogie man will
make you accept a 1-state solution where those nasty Palestinians will outnumber
you.." Secondly, the diplomats have put some effort into twisting Israel's
arm to accept belligerent neighbors and they believe they are making headway.
They haven't really considered alternatives. Bloggers and think-tankers have.
Solutions proposed and available on Think-Israel have considered some sort of
union with — or transformation of — Jordan; a return to the original Mandate
formulation where everyone has human rights protection but only the Jews have
voting rights; and a population transfer, where the first stage occurred in the
1940s and '50s when the Jews were driven out of the Arab countries where they
had been living even before the Arab invasions in the 7th Century C.E.
Think-Israel has formulated a 2-state solution where Israel takes possession of all of its land and the Palestinian state
is placed where it belongs — somewhere inside the enormously large Arab land
holdings (See here.)
In the present set of essays, Barbara Lerner is
convincing in her insight that the best way we have to fight specious Muslim
proposals for stealing Jewish land is to begin by appreciating our own Jewish
and Christian Biblical roots in Biblical Israel. Several article conclude that
the best way to end the refugee problem is to get rid of UNRWA. Martin Sherman
suggests helping the individual Arab families relocate.
Any viable solution must recognize that the
so-called Palestinians have no valid claim on any part of the Land of Israel — Howard
Grief's essay provides the legal substructure that protects Jewish rights in
the land — and that Israel would be negligent if it didn't defend its borders
and protect its citizens from Arab predators. The best way to do this, as
Martin Hausman's article suggests, is to annex the Territories formally.
Thanks to the U.N., there exists a large — and
growing — group of stateless Arabs, rejected by the Arab states, regarded as
throwaways in the Arab War against the West and a constant source of budding
terrorists and terrorist activity. The Palestinians are
(not politically) correctly described in several essays below. It would benefit
the West to rid the region of this constant irritant by (1) by urging that Arab
states where the refugee camps are located to give the refugees citizenship
status; or (2) by breaking up the collection of Arabs referred to as
Palestinians/Arab refugees into family units, each individually supplied with the means to negotiate
for immigrant status in countries that will accept them; or (3) declaring
Jordan with its Palestinian arab majority the state of Palestine. Professor
Mordechai Nisan of Hebrew University argued the case for this solution in Front Page Magazine. or (4) by giving the Arabs now living
in the Territories and in refugee camps a fixed space in some part of the
enormous Arab land holdings that is isolated from population centers and where
they can determine their own future. They can decide to learn to develop the
infrastructure for becoming a state or they can continue to kill each other.
It's their choice, providing it doesn't involve harming other people. "An
Alternative 2-State Solution" is such a proposal and is available HERE.These and variants should be considered
singly and in possible combination.
