July 5, 2011 at 7:05 am Leave a comment

Ignoring international law

and history 

Ted Belman is a retired lawyer from Toronto, Canada, now living in Israel. For about nine years he has been the editor and moving force behind Israpundit, (www.israpundit.com) one of the most comprehensive and dependable portals on what is really happening in the Middle East. Every day Israpundit presents topical articles, written by himself and other pundits (hence the name “Israpundit”). A recent article is “Jewish legal rights to Judea and Samaria,” by Jerold S. Auerbach that appeared in the Jewish Press. It offers one of the clearest explanations on the legalities of this shamelessly obfuscated subject. We present here an abridged version of the article, with a link to the complete article.


By Jerold S. Auerbach, Jewish Press

Would the creation of a Palestinian state by vote of the United Nations General Assembly, expected in September, be illegal? Yes, according to a recent letter to UN Secretary General Ban Ki-Moon. Signed by an array of lawyers, law professors and international law experts, it asks him to block the forthcoming resolution, promoted by the Palestinian Authority, for recognition of a Palestinian state within the 1949 Armistice lines.

The letter was drafted by lawyers affiliated with the Legal Forum for the Land of Israel, a non-profit organization founded in 2004. Their letter argues that such a resolution would contravene UN Security Council Resolutions adopted after the Six-Day and Yom Kippur wars. It would be “in stark violation” of existing agreements between Israel and the Palestinians.

“The legal basis for the establishment of the State of Israel,” they indicate, goes back to 1922 when the League of Nations affirmed “the establishment of a national home for the Jewish People in the historical area of the Land of Israel.”

Empowered to enact international law for the new postwar world order, the League conferred on Great Britain a Mandate for Palestine. “Palestine” was defined as the land east and west of the Jordan River, now comprising Jordan, the West Bank and Israel.

But in what became the first partition of Palestine, now long forgotten or ignored (even by Israeli government officials), the British government lopped off all the land east of the Jordan River, three-quarters of the designated Mandatory territory, and bestowed it upon Abdullah, son of the Sharif of Mecca, for his own kingdom of Trans-Jordan.

The entire remainder, west of the Jordan to the Mediterranean, was redefined as “Palestine” and designated for the “Jewish National Home,” a phrase borrowed from Lord Balfour’s famous letter of November 2, 1917. But the League went beyond that vague and indeterminate assurance. Article 6 of the Palestine Mandate explicitly protected “close settlement by Jews” in the shrunken land to be called Palestine.

That guarantee remains the international legal foundation for Jewish settlements built ever since the Six-Day War returned Israel to its ancient Jewish homeland. It has never been rescinded.

Any General Assembly attempt to create a Palestinian state in that territory would violate an array of international guarantees. Among them, most crucially, is Article 80 of the UN Charter. It explicitly protected the rights of “any peoples or the terms of existing international instruments to which members of the United Nations may respectively be parties.”

Article 80 became known as “the Palestine clause.” It preserved, under international law, the rights of the Jewish people to “close settlement” in all the land west of the Jordan River, even after the British Mandate had expired and the League of Nations had ceased to exist.

Those rights were flagrantly violated when Jordan invaded the fledgling Jewish state and claimed sovereignty over the West Bank in 1949. But the Jordanian claim had no standing in international law and was never recognized.

After the Six-Day War, Security Council Resolution 242 permitted Israel to administer the West Bank until “a just and lasting peace in the Middle East” was achieved. That, of course, has not yet happened. Even then, however, Israel would only be required to withdraw its armed forces “from territories” – not from “the territories” or “all the territories” (proposals that were defeated in both the Security Council and the General Assembly).

No prohibition – or even limitation – on Jewish settlement, guaranteed west of the Jordan River under the League of Nations Mandate forty-five years earlier, was adopted.

As the Legal Forum letter indicates, “1967 borders” (so labeled recently by President Obama) “do not exist, and have never existed.” Under the terms of the 1949 Armistice Agreements between Israel and the invading Arab states, the newly established “Armistice Demarcation Lines” were “without prejudice to future territorial settlements or boundary lines.”

Therefore, the letter signers conclude, those borders “cannot be accepted or declared to be the international boundaries of a Palestinian state.”

Should the UN General Assembly approve the current Palestinian proposal, the Palestinians would also be in “fundamental breach” of the 1995 Israeli-Palestinian Accord, when the signatories agreed not to attempt to change the status of contested territory before permanent status negotiations were concluded – certainly not before they were even begun.

*    *    *

Critics from the secular left (in Israel) have been unrelenting in their castigation of settlements. In Lords of the Land (2007), the first comprehensive history of the settlement movement, historian Idith Zertal and Ha’aretz journalist Akiva Eldar lacerated settlers for their illegal occupation of “Palestinian” land. The “malignancy of occupation,” they wrote, “in contravention of international law,” has “brought Israel’s democracy to the brink of an abyss.”

But persistent efforts to undermine the legitimacy of Israeli settlements, wrote international legal expert Julius Stone thirty years ago, are nothing less than a “subversion of basic international law principles.” They still are. Yet the United Nations, with an international constituency that has been relentlessly hostile to Israel ever since it first hallucinated that “Zionism is racism” in 1975, keeps trying.

Catering to international support for Palestinian victimization claims, the International Criminal Court, established by the UN General Assembly in 1998, made Jewish settlement a “war crime.” But Israel (like the United States) “unsigned” from the statute of authorization for the Court; furthermore, as international legal scholar Jeremy Rabkin indicates, the Court lacks jurisdiction over (alleged) “crimes” committed before 2002. By then, virtually all the currently existing Jewish settlements had already been established. That renders any designation of settlements as “war crimes” meaningless ex post facto rhetoric – although not without power to elicit ever more anti-Israel venom.

The question never asked is whether a Palestinian state in the land reserved under international law for “close settlement” by Jews is even legal. The Jewish claim, forged by three thousand years of history in the Land of Israel, including two eras of national sovereignty, reinforced in the modern era by a succession of international legal guarantees, is indisputable.

The Palestinian claim, by contrast, is a contrived recent invention. Devised by Arabs who only recently identified themselves as “Palestinians,” it is built on the foundation of perpetual victimization claims, the international determination to delegitimize Israel, and – perhaps most revealing – the pillaging of Jewish and Zionist history.

“Palestine” was so named by the Romans after they crushed the Bar Kochba rebellion in 133 CE. Any ancestors of present-day Palestinians who may have lived in Palestine under Ottoman or British rule were considered by others, and by themselves, to be Arabs. In 1948, without undue protest, they became Jordanians.

Not until the creation of the PLO by Arab states at the Arab League Summit (1964) did they become “Palestinians.” It took another decade, which included the stunning victory of Israel in the Six-Day War, before statehood was mentioned on the Palestinian wish list.

The validity of the Palestinian historical claim can be measured by its sources – nearly all of which, revealingly, are Jewish. In a remarkable inversion, a people without an identifiable national identity or history until well into the 20th century has plundered Zionist history to create its own illusory past in a land that was never theirs.

Relying on the Hebrew Bible, Palestinians (like Arabs throughout the Middle East) claim Ishmael, Abraham’s son by his servant Hagar, as their founding ancestor. They adopted as their ancient forebears the Canaanites, who, according to the biblical narrative, were displaced by conquering Israelites. (Palestinian history not only invents itself; it anticipates itself.)

Insisting that Jews never had national commonwealths in the Land of Israel many centuries before the birth of Islam, Palestinians reject irrefutable historical and archeological evidence to the contrary.

So, too – like Muslims throughout the Middle East – they resolutely deny that there ever was a Temple in Jerusalem and that the Western Wall has been a Jewish holy site ever since its destruction in 70 CE. Yet triumphant Islam built the Dome of the Rock and Al-Aksa mosque on the Temple Mount precisely because it had been sacred Jewish space.

In Hebron, similarly, Muslim conquerors seized the Cave of the Patriarchs and Matriarchs where Jews had already worshipped at the graves of their biblical ancestors for more than ten centuries. Transforming it into a mosque, Muslims barred Jewish “infidels” from entry for seven hundred years – until the Six-Day War forced open the doors.

Even the flotillas to Gaza are modeled after the rickety refugee ships that tried to bring desperate Jews, fleeing from Nazi terror and extermination, to Palestine before and after World War II. The most famous of these was the Exodus, with thousands of Holocaust survivors on board, turned away by the British government in 1947. Any resemblance is, of course, purely intentional – and patently absurd.

Might there be an alternative to Palestinian usurpation of the ancient Jewish homeland? Certainly West Bank Palestinians must be guaranteed the right to remain in place, living in their cities and villages and farming their land. They should have the option of citizenship in the Kingdom of Jordan, occupying two-thirds of Mandatory Palestine, where more than half the population is already Palestinian.

Jewish settlements, and other land legally owned by Jews in Judea and Samaria, would become part of the Jewish state. On Israeli land there would be no distinctive restrictions on development. A joint Israeli-Palestinian police force could continue to patrol the land between Palestinian and Jewish communities, as has now been done for nearly twenty years.

At the Western Wall (in June 1967) Defense Minister Moshe Dayan promised the victorious nation: “We have returned to all that is holy in our land. We have returned never to be parted from it again.”

President Obama demands otherwise. His insistence on the 1949 Armistice lines as the framework for negotiation, his determination to propel Palestinian statehood by the end of this year, and his silence on the Palestinian “right of return” to Israel … (clearly indicate that he has chosen to ignore international law and history.)

For the complete article: http://www.israpundit.com/archives/37442#more-37442

Jerold S. Auerbach is the author of “Brothers at War: Israel and the Tragedy of the Altalena,” published in May by Quid Pro Books.


Entry filed under: Blogroll, dangeous lies and halftruths, Solutions for Palestine, Things not mentioned in the press, United Nations. Tags: , , , , , , .

A LOT OF HONEST LIARS Using lies to try and destroy a nation

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