LEGAL RIGHTS AND TITLE OF SOVEREIGNTY OF THE JEWISH PEOPLE TO THE LAND OF ISRAEL AND PALESTINE UNDER INTERNATIONAL LAW by Howard Grief

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...". 
 

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. 

Howard Grief has written extensively on Israel's ownership of the West Bank. See, for example, "Is Israel Occupying The West Bank?"; "The origin of the Occupation Myth" ; and "Legal Rights and Title of Sovereignty of the Jewish People to the Land of Israel and Palestine under International Law."

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 jure sovereignty 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.