The truth is a minority opinion

This morning I got an email from an American correspondent asking what are the arguments for the legitimacy of Israeli communities (not ‘settlements’) across the Green Line, including all of Jerusalem. When I responded, I realized that although I have written about this before, it needs to be repeated – and repeated, because in this case the truth is a minority opinion. So here is a slightly more complete version of my answer:

The Jewish people have a legal, historical and moral right to live anywhere in the land between the Jordan and the Mediterranean; and the only sovereign power in this region is Israel, the state of the Jewish people. Here is why:

From a legal point of view, the land was originally a part of the Ottoman Empire, which ceased to exist at the end of WWI. “Palestine” was set aside for the Jewish people by the Palestine Mandate, which was supposed to be administered for their benefit by Britain, which then tried to subvert it for its own interests. It’s clear that while the intent of the Mandate was that all residents would have civil rights, rights to a “national home” were reserved for the Jewish people, who were also explicitly granted the right of “close settlement on the land”. This was affirmed for all the land from the river to the sea by the representatives of the international community in 1923.

The partition resolution of November 1947 (UNGA 181) was non-binding – a recommendation for a permanent settlement after the end of the Mandate. But it was never implemented. In 1948, the Arabs rejected the UN’s partition resolution and invaded the territory of the former Mandate, blatantly violating  the UN Charter in an attempt to acquire the territory for themselves. The 1949 ceasefire agreement that ended hostilities was not a peace agreement, and both sides insisted that that the ceasefire lines were not political boundaries. Their only significance was to mark the locations of the armies when the shooting stopped.

The 19-year Jordanian annexation of the territory it controlled that followed was illegal, only recognized by Britain (and maybe Pakistan). This occupation did not change the status of the land in any way.

The state of Israel was declared in 1948 and recognized by numerous other states. But what were its borders? Certainly not the armistice lines and not the recommendations of the partition resolution. However, legal scholars Eugene Kontorovich and Avi Bell recently provided a clear answer:

Israel’s borders and territorial scope are a source of seemingly endless debate. Remarkably, despite the intensity of the debates, little attention has been paid to relevance of the doctrine of uti possidetis juris to resolving legal aspects of the border dispute. Uti possidetis juris is widely acknowledged as the doctrine of customary international law that is central to determining territorial sovereignty in the era of decolonization. The doctrine provides that emerging states presumptively inherit their pre-independence administrative boundaries.

Applied to the case of Israel, uti possidetis juris would dictate that Israel inherit the boundaries of the Mandate of Palestine as they existed in May, 1948. The doctrine would thus support Israeli claims to any or all of the currently hotly disputed areas of Jerusalem (including East Jerusalem), the West Bank, and even potentially the Gaza Strip (though not the Golan Heights)

Israel’s practical acquisition of sovereignty over all the land in 1967 is thus entirely legitimate. And since Israel did not occupy land belonging to any other sovereign power, it is incorrect to refer to Judea and Samaria as “occupied territory.” Naftali Bennett’s statement that “you can’t occupy your own land” is precisely correct.

Article 49 of the 4th Geneva convention, the usual justification for saying that settlements are illegal only applies to occupied territory, which Judea and Samaria are not. But even if they were occupied territory, the intent of article 49 was to prevent forcible transfer of a population the way the Nazis sent German Jews to occupied Poland, not people moving of their own free will.

From a historical point of view, the Palestinians claim that they lived here for generations and European Jews came and displaced them. But in fact all but a few ‘Palestinians’ are descended from Arabs who migrated to the area for economic reasons after the advent of Zionism, and even fewer arrived before the invasion by Muhammad Ali in the 1830s. The Jewish connection to the land doesn’t need further explication. Judea and Samaria, in fact, represent the biblical heartland of the Jewish people, where its history took place and where its holy places are located. If there is any part of the land of Israel that should belong to the Jewish people, it is Judea (including Jerusalem) and Samaria.

From a moral point of view, the Palestinians have had criminal leaders that have relied on war and  terrorism to achieve their goals. Haj Amin al-Husseini started several pogroms in pre-state Palestine, and then collaborated with Hitler in his attempt to bring the Holocaust to the Middle East. Yasser Arafat and the PLO popularized airline (and other) hijacking to blackmail nations into supporting his goals, and was responsible for at least one major regional war (Lebanon 1982) and countless massacres and terror attacks against Israel and other nations. Hamas explicitly calls for genocide against Jews and is guilty of numerous war crimes. Palestinians have refused territorial compromises when offered and have started several wars against Israel (1947, second intifada, Hamas wars). Why should they be allowed to benefit from these actions?

Jerusalem. One interesting additional issue is the insistence of the US State Department that no part of Jerusalem, eastern or western, belongs to Israel. The 1947 partition resolution called for Jerusalem to be under international control. But as I noted, the resolution was only advisory and was never implemented. The Mandate did not give any special status to Jerusalem. The State Department’s insistence on this point is inconsistent, given that it appears to agree that Acco and Nazareth, which were to be parts of the Arab state proposed in 1947, are currently parts of Israel. It is also indefensible. And the deliberate vehemence with which the Obama Administration has pressed this view is irrational, insulting and clearly anti-Zionist.

I hope the information in this post will be helpful to my correspondent, and to others as well. I’ll add that nothing would make me happier than to hear the Government of Israel make an unambiguous declaration of sovereignty over Judea and Samaria, as is our legal, historical and moral right.

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6 Responses to The truth is a minority opinion

  1. mrzee says:

    The Oslo Accords not only allow the IDF to be in Area B and Area C but actually require them to be there to provide security. Whenever any of the witnesses such as the US or the EU complain about “occupation” it’s just a reminder that Israelis can NEVER trust anyone but themselves.

    If you stop and think of all the lies and broken promises to Jews/Israel over the past 100 years, it makes me wonder why Israel should ever trust anyone about anything.

  2. Nancy B says:

    Outstanding piece!

  3. Talarich says:

    I’m quite often involved in open lectures about Israel and international law in discussion about the topics mentioned above. There are no complaints against almost all of them, except one. And thats the Israeli point of view. It is very hard to argue, that Judea and Samaria are not an occupied territories, if the Israeli High Court of Justice is telling us the opposite:

    • The Israeli government, and the rest of Israel, is schizophrenic on this issue. The Supreme Court has decided questions regarding the legality and precise location of the security barrier by assuming the status of belligerent occupation as a starting point. Two examples are the Mara’abe case and the Beit Sourik case which are cited in the Wikipedia article that you link. But the court didn’t decide the question of belligerent occupation in these cases. Probably the most commonly cited case is the Elon Moreh decision in 1979; here too “occupation” is mentioned, but the Court did not explicitly decide this question in its decision about the legality of the settlement.

      I’ve been told that the term “belligerent occupation” is simply a technical term that means “territory occupied as a result of war.” But the whole point is whether 1967 is understood as Israel regaining part of its own territory or getting something ‘new’, and I think this term begs that question.

      One document that does directly address the issue is the Levy Commission Report on the Legal Status of Building in Judea and Samaria, produced in 2012 by a commission headed by retired Supreme Court Justice Edmund Levy.

      Here is what the commission said:

      Is Israel’s status that of a “military occupier” with all that this implies in accordance with international law? In our view, the answer to this question is no.

      After having considered all the approaches placed before us, the most reasonable interpretation of those provisions of international law appears to be that the accepted term “occupier” with its attending obligations, is intended to apply to brief periods of the occupation of the territory of a sovereign state pending termination of the conflict between the parties and the return of the territory or any other agreed upon arrangement. However, Israel’s presence in Judea and Samaria is fundamentally different: Its control of the territory spans decades and no one can foresee when or if it will end; the territory was captured from a state (the kingdom of Jordan), whose sovereignty over the territory had never been legally and definitively affirmed, and has since renounced its claim of sovereignty; the State of Israel has a claim to sovereign right over the territory.

      • Talarich says:

        Vic, thanks. But what value is the term “occupied territory” used by Supreme Court in Israel? Does it mean anything? If not, then why? Why it doesnt mean anything from the perspective of international law? If Supreme Court in Israel is using term “occupied territory”, then it has to mean something. And thats the problem 🙁 How can I defend Israel, if Israel itself is stabbing my back.
        This topic (Israeli Supreme Court) is a last stand for my opponents, because all other topics are answered.

        • Not being a member of the court, I can’t say what they thought it meant. But the most reasonable interpretation is that it meant “territory that we control as a result of war that we have not formally annexed.” It implies certain obligations in regard to the inhabitants, which is why the court mentioned it in its decisions about the security barrier and the legality of a particular settlement.

          But I do not think that accepting this implies that we don’t have the strongest claim to sovereignty over this territory.

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