Tuesday, May 24, 2011



International law is often cited as a pretext for the policies of Western governments and human rights agencies toward Judea, Samaria, and Gaza in general and Jerusalem in particular. A certain assumption or presumption about the international law status of these areas is the premise for claims that they are "occupied territory," that Israeli construction in formerly Jordanian-ruled parts of Jerusalem is "illegal," etc.

Given the centrality of allegations about international law in the diplomatic and political assaults on Israel made by such bodies as the European Union, the UN General Assembly, and others, there is a need to know, to understand and to expound the true international law concerning the Land of Israel as a matter of sheer political self-defense. What indeed has been the status of Judea, Samaria, and Gaza under the law of nations?

International law has recognized Jewish rights to sovereignty over the Land of Israel and to settlement throughout the land. In April 1920, at the San Remo Conference (part of the post-World War I peace negotiations), the Principal Allied Powers, acting on behalf of the international community, recognized all the land between the Jordan and the sea, including Jerusalem, as part of the Jewish National Home, based on the Jewish people's historic rights. On the same grounds, the Golan1 and Transjordan too were within the National Home (albeit the eastern border of the National Home, though clearly east of the Jordan, was not yet fixed).

The San Remo decision meant also the juridical creation of "Palestine" as a political entity as well as the introduction of that name as the official designation for the new entity. During the centuries of Ottoman rule, the country was divided among larger administrative entities with their capitals outside the country, the vilayets of Beirut and Damascus, although in the mid-nineteenth century, as a consequence of increasing influence by Christian powers on the Ottoman Empire and Jerusalem's political sensitivity due to the Christian powers' interest in the city, the Jerusalem area was made into an independent sanjaq (district), called "independent" since its governor reported directly to the Ottoman capital, Istanbul (then called Constantinople in the West), not to a provincial (vilayet) governor.

Furthermore, Arab-Muslims traditionally saw the land as an undifferentiated part of Bilad al-Sham, usually translated as Syria or Greater Syria, which comprised the Syria, Lebanon, Israel and Jordan of today, roughly speaking. However, whereas both Jews and Christians saw the country as a distinct geographic concept, they tended to use different names for it. In Jewish tradition the land was long called the Land of Israel, while Christians, through the nineteenth century, were likely to call it Holy Land, with Palestine as one of several alternate names.

The San Remo decision for the Jewish National Home was ratified by the the League of Nations in 1922 and endorsed by a joint resolution of the United States Congress that same year, with a more official US endorsement coming in the Anglo-American Convention on Palestine (proclaimed 1925).

This legal state of affairs was expounded in a legal memorandum drawn up in 19462 by a group of distinguished American-Jewish jurists including Judge Simon Rifkind, Abraham Fortas (later appointed to the Supreme Court), and others.

To measure the extent of American commitment to the National Home at the beginning, we may quote from the terminology of the time: "RES. 52: Expressing satisfaction at the re-creation of Palestine as the national home of the Jewish race" (House Committee on Foreign Affairs). "Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, that the United States of America favors the establishment in Palestine of a national home for the Jewish people..." (1922).

Because the legal issue is once again very much alive, a brief survey of the matter is useful, with particular reference to Jerusalem.3 By the time the League of Nations was replaced by the UN in 1945, Britain had tried to change the legal status of the country as the Jewish National Home. This attempt was embodied in the Palestine White Paper of 1939, on the eve of the Holocaust, and in various subsequent ordinances enacted by the British mandatory government, which made it very difficult for Jewish refugees to enter the country or {for Jews} to buy real estate there. Nevertheless, this British attempt to change the country's status was rejected as illegal by the League of Nations Permanent Mandates Commission in June 1939.

When the UN was founded in 1945, it reaffirmed through its Charter the existing territorial rights of peoples as they had been before the war (Article 80). However, many or most people today are either not aware that the whole country constituted the Jewish National Home, or believe that the UN had somehow eliminated this status and, in any case, had fixed legal boundaries for Israel through the 1947 Partition Resolution. Yet the 1947 resolution was passed by the General Assembly. Now all General Assembly resolutions on political issues are merely recommendations.

The UN Charter states, defining the powers of the various UN bodies: "The General Assembly may discuss any questions relating to the maintenance of international peace and security... and... may make recommendations with regard to any such question" (Article 11; also see Arts. 10, 12, 13, 14). Only the Security Council can make binding resolutions, according to the Charter.

Now the Partition Plan, in a not uncommon display of political irrealism, recommended two states in the former mandatory Palestine, one Jewish and one Arab, plus a special status for Jerusalem. The Holy City was to be an internationally governed corpus separatum. While the Jewish leadership accepted the Plan, the Arab governments and local Arab leadership universally rejected it. After the war had begun the UN made no effort to prevent the invasion of the country by Arab states, to prevent Arab attacks on Jews within the country or to eliminate the Arab siege of the Jews in Jerusalem, a city where Jews had been the majority at least since 1870. Thus Israel did not feel bound by the Partition recommendation. Professor Eugene Rostow, an authority on international law, has pointed out that the Arab war on Israel of 1947-49, "made the Partition Plan irrelevant."4

After the battles of the War of Independence had ended, Israel and four Arab states signed armistice agreements. The accord with Jordan (then called Transjordan) specifically stated that no political border with Israel was being recognized, merely an armistice line (the "green line"). And this at Arab insistence! Arab spokesmen repeated this on later occasions. For instance, the Jordanian delegate to the UN told the Security Council a few days before the Six Day War:

There is an Armistice Agreement. The Agreement did not fix boundaries; it fixed a demarcation line. The Agreement did not pass judgement on rights --political, military, or otherwise. Thus I know of no territory; I know of no boundary. (May 31, 1967)

Obviously, since no political border between Jordan and Israel was recognized, then the prior legal status prevailed -- that is, the Jewish National Home recognized and constituted in 1920 at San Remo. Hence, the areas that Jordan called "West Bank," as well as east Jerusalem (which had thousands of Jewish residents before 1948), remained part of the National Home even during Jordanian occupation. The Assembly's repetitions of its Jerusalem recommendation (GA resolutions 194, 303, etc.) could not change this. Nor did the Security Council change the status of Jerusalem by its famous Resolution 242 after the Six Day War.

Although the Council's resolutions are said by the UN Charter to be binding, this resolution did not specify what territories were "occupied." Perhaps the Council was referring to the Sinai Peninsula, occupied by Israel in that just war of self-defense. Furthermore, the Council could not legislate ex post facto, after the fact, to take away the already existing rights of the Jewish people. According to Professor Rostow, "The withdrawal of Great Britain as administrator and trustee did not of course terminate the Mandate as a trust [for the Jewish people]."5

Jerusalem of course took a special place in the age old yearning for a restored Jewish National Home. And in Jerusalem too this yearning ran into opposition not just from Arabs but from Western powers (and others following their lead). They have long refused to recognize any part of Jerusalem as part of Israel, nor do they recognize the Holy City as Israel's capital. Their pretext is the separate status provided for Jerusalem in the Partition Plan. Yet this Plan was merely an Assembly recommendation, whereas the San Remo decision of 1920 was law. Thus, the refusal of the powers to transfer their embassies to Jerusalem, which means refusal to accept the city as Israel's capital, has no foundation in law.

Obviously, the refusal has its reasons. It may stem from the same reasons that induced the British to allow Arab mobs in a series of pogroms (1920, 1929, 1936-38) to drive Jews away from the neighborhood of Jewish holy places, such as the Temple Mount and the Cave of the Patriarchs in Hebron. It may be related to Britain's reasons for appointing an Arab mayor for Jerusalem throughout the whole mandatory period, despite the Jewish majority since at least 1870. Now the Ottoman Empire did the same up to 1917, but then the Ottoman Empire was an avowed Muslim state, whereas the British had accepted an international commitment (the Mandate) to foster development of the country as the Jewish National Home.

It is clear that according to the San Remo decision of 1920 and the League of Nations vote of 1922 for the Jewish National Home, Israel's extension of its jurisdiction over all Jerusalem since the Six Day War is legal and proper.

Nevertheless, self-serving interpretations of law are often made by interested parties. In the case of Israel, such interpretations provide pretexts for declarations by governments and groupings of governments --the Arab League, the European Union, the UN General Assembly-- that are hostile to Israeli sovereignty in Jerusalem (or anywhere in the country). Such false and hostile interpretations remind us that we dare not place our trust in law or international accords. Yet, the outbursts in the form of declarations and resolutions based on these interpretations have more force and cause more damage than many friends of Israel seem to realize, although they may be less effective than their authors would like). And thus they need to be answered.

1 The Golan was an original part of the Jewish National Home as decided at San Remo and had been populated and ruled by Jews in Second Temple times and afterwards. In 1923, the British authorities transferred the Golan to the French mandate of Syria without approval of the Zionist Organization.

2 Simon Rifkind, Abraham Fortas, et al., Basic Equities of the Palestine Problem: A Memorandum (1946) [reprinted New York: Arno Press, 1977].

3 We shall use the Rifkind-Fortas memorandum, our own study of the UN Charter and subsequent UN acts, writings of Prof. Julius Stone and Prof. Eugene Rostow, and various historical information. We have also benefited from conversations with Attorney Howard Grief of Jerusalem, a former advisor on international law to the Israeli Ministry of Energy, who has done research into the Balfour Declaration, the San Remo Decision, the League of Nations Mandate, etc., up to the series of agreements going by the name of the Oslo Accords. The conclusions are my own.

4 Eugene Rostow, "Resolution 242 at Twenty," Jerusalem: Institute for Advanced Strategic and Political Studies, 1988; p 5.

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