Wednesday, September 5, 2007

"Geneva Accord" -Model for a Permanent Israel-Arab Agreement


Alternative Version

Model for a
Permanent Israel-Arab Agreement


Rabbi Dr. Chaim

Kiryat Arba-Hebron

November 2003


Mandatory Palestine
will be divided into two states to be called Palestine
and Israel.

Palestine will be given 77%
of the land area and will be situated east of the Jordan
. i.e. the area of the country today known as Jordan.

Israel will be given the
remaining 23% and will be situated west of the Jordan
. i.e. the area at present under Israeli law and order,
together with the whole of Judea, Samaria and
the Gaza strip.

Arabs at present living in the designated Israel will, on signing a declaration
recognising Israel
as a Jewish state, be allowed to remain. Otherwise they will move to Palestine.

Likewise Jews living in the designated Palestine will, on signing a declaration recognising Palestine as an Arab
state, be allowed to remain. Otherwise they will move to Israel.


Part 1 - Background

The Mandate for Palestine

In April 1920, the San Remo Conference decided to assign the Palestine Mandate
under the League of Nations to Britain.[1] The agreed text of this Mandate
was confirmed by the Council of the League of Nations
in July 1922[2]. The aim of the Mandate, as stated
in its preamble and Article 2 was to prepare the area for "the
establishment in Palestine
of a national home for the Jewish people.[3]" There is no mention of the
establishment of a national home for the Arabs. In fact, the term Palestinian
Arabs, is completely absent from the various documents of this period.
Palestinian Arabs, who now claim a history extending over thousands of years,
were never heard of 70 years ago!

The area known as Palestine
in this Mandate document extended from the Mediterranean to the eastern border
of what is today known as Jordan.
Article 6 of this document stated that an aim of the Mandate was to
"encourage, in co-operation with the Jewish agency,... close settlement by
Jews on the land[4]."

Article 25 allowed the Mandatory Power, with the
consent of the League of Nations, "to postpone or withhold
application" of certain articles of this Mandate in the area known as Transjordan[5]. Although this meant that
Jewish settlement organised by the Jewish agency could no longer take place in Transjordan, individual Jewish settlement was not
[6]. It must however be stressed
that Transjordan was always part of the British Mandate over Palestine

In March 1946, Britain acting unilaterally and contrary to Article 5 of the
Mandate, detached the area of Transjordan from the Mandate and set up "a
sovereign independent State" named Transjordan[8]. This act had no foundation in
and thus the legality of the country of Transjordan has always been
very questionable[9].

The United Nations
Resolution of November 1947

On 29 November 1947, the United Nations General Assembly passed a resolution
dividing up Palestine west of the Jordan River into two independent states, a
Jewish one and an Arab one[10]. The Arabs rejected this
resolution and as soon as Israel was born, five Arabs countries attacked in
order to destroy her. Thus begun the War of Independence. In this war Israel
succeeded in acquiring a large part of the area allocated by the United Nations
to the Arab state. This included West Jerusalem, Beersheba, Ramla, Lod,
Nazareth, Acre, Nahariya, Jaffa, Ashdod and Ashkelon[11]. The area of Judea and Samaria,
(described by the world as the "West Bank") was occupied and annexed
by Jordan, and Egypt captured the area known as the Gaza Strip. The only
countries in the world to recognise Jordan's annexation were Britain and

The Six Day War.

In June 1967, Egypt, Jordan and Syria made an unprovoked attack on Israel. As a
result of this attack, the Six Day War broke out. During the course of this
war, Israel succeeded in acquiring Judea and Samaria, the Gaza Strip, the Sinai
Peninsula and the Golan Heights.

In the following years, leading international lawyers discussed Israel's
international rights to Judea, Samaria and the Gaza Strip, and they concluded
that Israel has a better title to these areas than any other country in the
world. These legal authorities included, Professor Julius Stone[13], Professor Stephen Schwebel[14], Professor Yehuda Blum[15], Dr. Benjamin Halevi[16] and Alan Levine[17].

Israeli Settlements
in Judea, Samaria and the Gaza Strip

Since the Six Day War, Israel has built settlements in these areas (including
east Jerusalem) and towards the end of 2003, there were about 400,000 Jews
living there[18].

The world as well as the Israeli Left has been condemning these settlements as
illegal. What in fact is their status?

The late Eugene Rostow, who was Professor of Law at Yale University and U.S.
Assistant Under-Secretary of State, wrote, "Since the Palestine Mandate
conferred the right to settle in the West Bank on the Jews, that right has not
been extinguished, and, under Article 80 of the [United Nations] Charter,
cannot be extinguished unilaterally[19]."
It follows that one therefore cannot describe any Jewish settlement in these
areas as illegal. This naturally includes "outposts" which the
Israeli Government is in the process of dismantling in response to American
pressure. It should be pointed out that President Bush's actions in condemning
settlement building and demanding the demolishing of the outposts, are a
flagrant breach of the U. N. Charter to which his country is a signatory.

Jews from Arab

Jews have lived in Arab countries for thousands
of years. They were often persecuted and such persecution greatly intensified
from the end of 1947. Three quarters of a million Jews fled to Israel, either
having their property and assets confiscated or having to abandon them[20]. This property and assets have
been valued at one hundred billion dollars[21].

Transfer of

Transfer of population has been successfully put
into practice in the 20th century in different parts of the world. Here are
some of examples of such transfers:[22]

Following World War I there was a compulsory
transfer of population involving nearly two million people between Greece and
Turkey. This transfer had been proposed by Nobel Peace Prize Winner, Fridtjof

At about the same period there was an exchange
of population between Greece and Bulgaria.

After Pakistan split from India in August 1947,
8 million Hindus went from Pakistan to India and 6 millions Muslims in the
reverse direction. This was an operation which had broad international support.

A discussion of the advantages and moral aspects of transfer of population is
given in Part 3 of this paper.

A Historical Survey
on Transfer of Arabs from Eretz Israel

It is a common misconception that the idea of transfer of Arabs from Eretz
Israel originated with Rabbi Meir Kahane. In fact this idea stems from Theodor
Herzl himself. In his private diary entry in June 1895, he wrote regarding the
indigenous non-Jews in the Jewish State, "We shall try and spirit the
penniless population across the border by procuring employment for it in the
transit countries whilst denying it any employment in our own country.[23]" Further, his Charter for
Palestine of 1901, gave the right to transfer Arabs from Palestine to any other
part of the Ottoman Empire[24].

Herzl was not the only Zionist leader to make such proposals. David Ben-Gurion
repeatedly made such proposals in his private diary[25] and in closed meetings[26]. He even said "I favour
compulsory transfer [of Arabs]. I see nothing unethical in it[27]." Immediately after the
establishment of the State of Israel, he gave the order to expel the Arabs from
Lod and Ramla[28]. He was also angry that they had
not been expelled from Nazareth[29],
and that Abba Hushi, who was later the Mayor of Haifa, tried to persuade them
to remain[30].

Chaim Weizmann, the liberal, told the British
Colonial Secretary that "the Jews ... will help in getting Arabs out of
Galilee[31]." In fact, the majority of
the Zionist leaders - for example, Berl Katznelson[32], Leo Motzkin[33], Nachman Syrkin[34], Menachem Ussishkin[35], Yosef Weitz [36]- put forward proposals for such

In 1937, the Jewish Agency Executive set up a
Committee[37] whose function was to
"prepare a programme for the transfer of [the Arab] population and to
coordinate the information required for this[38]."

The Six Day War with its consequent large
increase of Arabs under Israel's jurisdiction, spurred on further transfer
proposals. In a Cabinet meeting held a week after the war, Abba Eban and
Pinchas Sapir called for the transfer of the Arab refugees residing in Judea, Samaria
and the Gaza strip to the neigbouring Arab countries[39]. In 1970, Chaim Herzog stated at
a seminar, "Were it possible for us to take a million Arabs and move them
out, it would be good[40]."

Such proposals were not limited to Jews. It was President Franklin Roosevelt
who stated that "Palestine should be for the Jews and no Arabs should be
in it[41]." His predecessor President
Herbert Hoover worked on a plan to resettle the Arabs from Palestine in Iraq[42]. The pro-Arabist Harry St. John
Philby, worked for several years on a transfer plan and said that "Western
Palestine should be handed over completely to the Jews, clear of Arab

In 1939, Mojli Amin,, a member of the Arab Defense Committee for Palestine, put
forward a proposal to transfer the Arabs of Palestine to Arab countries in
exchange for Jews then living in Arab countries. This proposal was published in
Damascus and distributed among the Arab leaders[44].

Public bodies also put forward transfer proposals. The British Royal Commission
under the Chairmanship of Lord Peel thoroughly studied the situation in Palestine
in 1936/7, interviewed over one hundred witnesses and in their detailed 400
page report unanimously included the recommendation for the transfer of Arabs,
if necessary by compulsion, from the proposed Jewish state[45].

Another British public body to propose transfer
was the British Labour Party who, in a Resolution at their Annual Conference of
1944, overwhelmingly voted for the encouraging of the Arabs of Palestine to
move out[46].

Part 2 - The

Borders of the two

Palestine will receive 77% of the area of Mandatory Palestine and its borders
will be those of the country today known as Jordan..

Israel will receive the remaining 23% of this
area and its borders will be those of the area at present under Israeli law and
order, together with the whole of Judea, Samaria and the Gaza strip.

Both Palestine and Israel will have constitutions and an unalterable paragraph
in the constitution of Palestine will be that it is an Arab state. Likewise an
unalterable paragraph in the constitution of Israel will be that it is a Jewish

Population of the
two states

All Jews will be allowed to live in Israel.

An Arab wishing to remain in Israel will have to sign a declaration that he
fully recognises Israel as a Jewish State and that he will always act in
accordance with his declaration. This declaration would then be published twice
in a newspaper in both Israel and Palestine, with an interval of one month
between each publication.

Such an Arab will then be allowed to remain in Israel. However, should at any
time in the future, he not honour his declaration, he will immediately be
transferred to Palestine, without any compensation whatsoever for his assets.

A similar procedure would apply to a Jew wishing to remain in Palestine.

Those Arabs in Israel not wishing to sign such a declaration, will, within
three months of the establishment of the State of Palestine, move to Palestine.
They will be able to take all their movable assets and all their removal and
transport facilities will be provided at public expense. They will be given
every assistance in packing their effects and other arrangements involved with
their moving.

Arabs having immovable assets within the borders of Israel will be compensated
with the assets of Jews who left the Arab countries leaving their assets
behind. Such Jews will have to sign a waiver for such assets and in return will
receive immovable assets of the transferred Arabs. It goes without saying that
these Jews will be able to sell or otherwise dispose of these assets in any way
they desire.

A similar procedure will be implemented for Jews moving from Palestine to

Part 3 - Answers to
Objections to "Accord"


It is naive
to expect that there will be no objections to this "accord" from the
world and from the Israeli Left. Let us therefore try to anticipate these
objections by giving our answers here.

Is not transfer
"racial cleansing"?

a) Many people erroneously believe, that
population transfers originated with the Nazis who adopted large-scale transfer
of national minorities as part of their "New Order" in Europe[47]. Such transfers are undiluted
"racial cleansing" and must be highly deplored.

In fact, well before the Nazi era, successful and beneficial population
transfers took place. The reason for such transfers was summed up in an article
on the exchange of populations appearing in the "Encyclopaedia Britannica:
"The mixture of populations had led to so much political trouble in modern
times that this unmixing process must be regarded as a very considerable

A classic case of such a transfer took place between Greece and Turkey soon
after World War I. This transfer was proposed by the Nobel Peace Prize winner,
Fridtjof Nansen and it involved the transfer of about two million persons.

It was so successful that the British Royal Commission, under the Chairmanship
of Lord Peel, when considering the Palestine problem in 1936/7, introduced it
as a precedent[49]. They unanimously recommended
that a similar population transfer, compulsory if necessary, be implemented in
Palestine. They felt that this was the only constructive and permanent solution
of the Arab-Jewish conflict over Palestine.

This Commission was comprised of six distinguished Englishmen[50] with highly respected backgrounds
and it could not be suggested that their motives were "racial
cleansing." Since then a further three Nobel Peace Prize Winners[51], two American Presidents[52] and many distinguished Jews[53] and non-Jews[54] have proposed the transfer of
Arabs from Palestine.

Over 65 years have passed since the Royal Commission made this recommendation.
Today relations between the Arabs and the Jews are no better than they were
then. If anything, terrorism and the negative relation of Arabs to the State of
Israel are increasing from year to year. In the early years of the State of
Israel, there were two Arab parties in the Knesset allied to the dominant Mapai
(Labour) party. These two parties had a total of 5 seats[55]. However, as time went on they
disappeared and were replaced by Arab nationalistic parties, each trying to be
more extreme than the next!

b) Of course, mass transfer of population, or,
for that matter, transfer of individuals is not to be undertaken lightly, but
it is sometimes the only solution to a problem. It was a former director of the
Pan-European Union who wrote of population transfer, "To cut the cancer
from a sick body is not cruel, it is necessary[56]."

Let us not pretend that transfer is not painful. People are uprooted from their
homes, moved to a different location and then have to reorganise their lives.
But what is the alternative? Continual wars, terrorism, numerous people who are
killed and maimed for life. As the Jewish writer Israel Zangwill wrote on this
question, "One single act of compulsion is better for both sides than
perpetual friction[57]."

c) One should mention here that the Government
of Israel has forcibly transferred Jews. This was done with the full support of
the Left, who made no suggestion that it was "ethnic cleansing"! This
occurred in 1982 when Israel transferred the thousands of Jews living in the
various settlements in the Sinai peninsula, including the entire city of Yamit.
This was absolutely against the will of those settlers and they were even
removed in cages! They were given no option to remain[58].

d) Section 4 paragraph 5 of the
"Geneva Accord" of Beilin et al.. states that 100,000 Jews at present
living in Judea. Samaria and the Gaza strip will be compulsorily transferred to
within the borders of their intended State of Israel[59]. They obviously do not consider
such compulsory transfer of all the Jews from their intended State of
Palestine to be "ethnic cleansing." There is no option included
for these Jews to remain in the intended State of Palestine. In contrast, no
Arab would be required to leave the intended State of Israel.

Why not the pre-1967

One might well ask why not make the borders of Israel identical to those prior
to the Six Day War and those of the Palestine state the areas of Judea, Samaria
and the Gaza Strip?

There are a number of answers to this question:

a) In the partition plan of November 1947,
Palestine west of the River Jordan was divided into two states, an Arab state
and a Jewish state, and the plan precisely defined the borders of each of these
states. As a result of the Arab attack on the emerging Jewish state, the War of
Independence followed and Israel acquired part of the area of the intended Arab
state, (we shall call the resultant borders the "1949 borders"). As a
result of a further attack in 1967, Israel acquired the remainder of the area
allocated to the intended Arab state, (and we shall call the resultant borders
the "1967 borders").

One could call the United Nations 1947 borders, borders which were recognised
by this world body. However, the areas acquired in the War of Independence and
in the Six Day War, have the same status - namely, areas acquired during
a war. One could therefore understand (although not agree with) those wanting
to fix the borders of the Jewish and Arab states according to the 1947 borders.
But why should those on the Left choose the 1949 borders, rather than the 1967
borders, for the future borders of Israel?

b) One does not require a degree in War Studies
to realise that the 1949 borders of Israel were indefensible. There was the
very narrow waist - a mere 15 km[60].
- on the coastal strip, making it easy for an enemy to bisect Israel. There was
also the narrow Jerusalem corridor, surrounded on three sides by Jordan making
it easy to besiege Jerusalem.

c) A few weeks after the end of the Six Day War,
the United States Secretary of Defence asked Earle Wheeler, the Chairman of the
American Joint Chiefs of Staff, to put forward "the minimum territory, in
addition to that held on 4 June 1967, Israel might be justified in retaining in
order to permit a more effective defense against possible conventional Arab
attack and terrorist raids." In Wheeler's secret memorandum, he considered
that this minimum area included about two thirds of the area of Judea
and Samaria and the entire Gaza Strip[61].

d) The Security Council Resolution 242 of
November 1967 states that Israel has the "right to live in peace within
secure and recognized boundaries[62]."
Those of 1949 were certainly not "secure boundaries"!

e) A few days before the outbreak of the Six Day
War, Jordan, (who then thought she would conquer Israel!) told the Security
Council, "The [Armistice] Agreement [of 1949] did not fix boundaries; it
fixed the demarcation line[63]."

f) It was Abba Eban, who was on the left-wing of
the Israel Labour Party, who said, "We have openly said that the map will
never be the same as on June 4, 1967. For us, this is a matter of security and
of principles. The June map is for us equivalent to insecurity and danger. I do
not exaggerate when I say that it has for us something of a memory of Auschwitz[64]."


There have been enough wars, bloodshed, killing
and maiming during the last hundred years in the conflict between the Jews and
the Arabs.

The time has more than come to put an end to
this. It can be done by implementing this "accord" and in this way
both Arabs and Jews will be able to live unmolested by each other in their own

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Tuesday, September 4, 2007



Dore Gold

"Occupation" as an Accusation / The Terminology of Other Territorial
Disputes / No Previously-Recognized Sovereignty in the Territories /
Aggression vs. Self-Defense / Israeli Rights in the Territories / After
Oslo, Can the Territories be Characterized as "Occupied"?

"Occupation" as an Accusation

At the heart of the Palestinian diplomatic struggle
against Israel is the repeated assertion that the Palestinians of the
West Bank and Gaza Strip are resisting "occupation." Speaking recently
on CNN's Larry King Weekend, Hanan Ashrawi hoped that the U.S. war on
terrorism would lead to new diplomatic initiatives to address its root
"causes." She then went on to specifically identify "the occupation
which has gone on too long" as an example of one of terrorism's sources.1 In other words, according to Ashrawi, the violence of the intifada emanates from the "occupation."

Mustafa Barghouti, president of the Palestinian
Medical Relief Committees and a frequent guest on CNN as well,
similarly asserted that: "the root of the problem is Israeli
occupation."2 Writing in the Washington Post on
January 16, 2002, Marwan Barghouti, head of Arafat's Fatah PLO faction
in the West Bank, continued this theme with an article entitled: "Want
Security? End the Occupation." This has become the most ubiquitous line
of argument today among Palestinian spokesmen, who have to contend with
the growing international consensus against terrorism as a political

This language and logic have also penetrated the
diplomatic struggles in the United Nations. During August 2001, a
Palestinian draft resolution at the UN Security Council repeated the
commonly used Palestinian reference to the West Bank and Gaza Strip as
"occupied Palestinian territories." References to Israel's "foreign
occupation" also appeared in the Durban Draft Declaration of the UN
World Conference Against Racism. The Libyan ambassador to the United
Nations, in the name of the Arab Group Caucus, reiterated on October 1,
2001, what Palestinian spokesmen had been saying on network television:
"The Arab Group stresses its determination to confront any attempt to
classify resistance to occupation as an act of terrorism."3

Three clear purposes seem to be served by the
repeated references to "occupation" or "occupied Palestinian
territories." First, Palestinian spokesmen hope to create a political
context to explain and even justify the Palestinians' adoption of
violence and terrorism during the current intifada. Second, the
Palestinian demand of Israel to "end the occupation" does not leave any
room for territorial compromise in the West Bank and Gaza Strip, as
suggested by the original language of UN Security Council Resolution
242 (see below).

Third, the use of "occupied Palestinian
territories" denies any Israeli claim to the land: had the more neutral
language of "disputed territories" been used, then the Palestinians and
Israel would be on an even playing field with equal rights.
Additionally, by presenting Israel as a "foreign occupier," advocates
of the Palestinian cause can delegitimize the Jewish historical
attachment to Israel. This has become a focal point of Palestinian
diplomatic efforts since the failed 2000 Camp David Summit, but
particularly since the UN Durban Conference in 2001. Indeed, at Durban,
the delegitimization campaign against Israel exploited the language of
"occupation" in order to invoke the memories of Nazi-occupied Europe
during the Second World War and link them to Israeli practices in the
West Bank and Gaza Strip.4

The Terminology of Other Territorial Disputes

The politically-loaded term "occupied territories"
or "occupation" seems to apply only to Israel and is hardly ever used
when other territorial disputes are discussed, especially by interested
third parties. For example, the U.S. Department of State refers to
Kashmir as "disputed areas."5 Similarly in its Country Reports on Human Rights Practices,
the State Department describes the patch of Azerbaijan claimed as an
independent republic by indigenous Armenian separatists as "the
disputed area of Nagorno-Karabakh."6

Despite the 1975 advisory opinion of the
International Court of Justice establishing that Western Sahara was not
under Moroccan territorial sovereignty, it is not commonly
accepted to describe the Moroccan military incursion in the former
Spanish colony as an act of "occupation." In a more recent decision of
the International Court of Justice from March 2001, the Persian Gulf
island of Zubarah, claimed by both Qatar and Bahrain, was described by
the Court as "disputed territory," until it was finally allocated to

Of course each situation has its own unique
history, but in a variety of other territorial disputes from northern
Cyprus, to the Kurile Islands, to Abu Musa in the Persian Gulf -- which
have involved some degree of armed conflict -- the term "occupied
territories" is not commonly used in international discourse.8

Thus, the case of the West Bank and Gaza Strip
appears to be a special exception in recent history, for in many other
territorial disputes since the Second World War, in which the land in
question was under the previous sovereignty of another state, the term
"occupied territory" has not been applied to the territory that had
come under one side's military control as a result of armed conflict.

No Previously-Recognized Sovereignty in the Territories

Israel entered the West Bank and Gaza Strip in the
1967 Six-Day War. Israeli legal experts traditionally resisted efforts
to define the West Bank and Gaza Strip as "occupied" or falling under
the main international treaties dealing with military occupation.
Former Chief Justice of the Supreme Court Meir Shamgar wrote in the
1970s that there is no de jure applicability of the 1949 Fourth
Geneva Convention regarding occupied territories to the case of the
West Bank and Gaza Strip since the Convention "is based on the
assumption that there had been a sovereign who was ousted and that he
had been a legitimate sovereign."

In fact, prior to 1967, Jordan had occupied the
West Bank and Egypt had occupied the Gaza Strip; their presence in
those territories was the result of their illegal invasion in
1948, in defiance of the UN Security Council. Jordan's 1950 annexation
of the West Bank was recognized only by Great Britain (excluding the
annexation of Jerusalem) and Pakistan, and rejected by the vast
majority of the international community, including the Arab states.

At Jordan's insistence, the 1949 Armistice
Line, that constituted the Israeli-Jordanian boundary until 1967, was
not a recognized international border but only a line separating
armies. The Armistice Agreement specifically stated: "no provision of
this Agreement shall in any way prejudice the rights, claims, and
positions of either Party hereto in the peaceful settlement of the
Palestine questions, the provisions of this Agreement being dictated exclusively by military considerations" (emphasis added) (Article II.2).

As noted above, in many other cases in recent
history in which recognized international borders were crossed in armed
conflicts and sovereign territory seized, the language of "occupation"
was not used -- even in clear-cut cases of aggression. Yet in the case
of the West Bank and Gaza, where no internationally recognized sovereign control previously existed, the stigma of Israel as an "occupier" has gained currency.

Aggression vs. Self-Defense

International jurists generally draw a distinction
between situations of "aggressive conquest" and territorial disputes
that arise after a war of self-defense. Former State Department Legal
Advisor Stephen Schwebel, who later headed the International Court of
Justice in the Hague, wrote in 1970 regarding Israel's case: "Where the
prior holder of territory had seized that territory unlawfully, the
state which subsequently takes that territory in the lawful exercise of
self-defense has, against that prior holder, better title."9

Here the historical sequence of events on June 5, 1967, is critical, for Israel only entered the West Bank after
repeated Jordanian artillery fire and ground movements across the
previous armistice lines. Jordanian attacks began at 10:00 a.m.; an
Israeli warning to Jordan was passed through the UN at 11:00 a.m.;
Jordanian attacks nonetheless persisted, so that Israeli military
action only began at 12:45 p.m. Additionally, Iraqi forces had crossed
Jordanian territory and were poised to enter the West Bank. Under such
circumstances, the temporary armistice boundaries of 1949 lost all
validity the moment Jordanian forces revoked the armistice and
attacked. Israel thus took control of the West Bank as a result of a defensive war.

The language of "occupation" has allowed
Palestinian spokesmen to obfuscate this history. By repeatedly pointing
to "occupation," they manage to reverse the causality of the conflict,
especially in front of Western audiences. Thus, the current territorial
dispute is allegedly the result of an Israeli decision "to occupy,"
rather than a result of a war imposed on Israel by a coalition of Arab
states in 1967.

Israeli Rights in the Territories

Under UN Security Council Resolution 242 from
November 22, 1967 -- that has served as the basis of the 1991 Madrid
Conference and the 1993 Declaration of Principles -- Israel is only
expected to withdraw "from territories" to "secure and recognized
boundaries" and not from "the territories" or "all the
territories" captured in the Six-Day War. This deliberate language
resulted from months of painstaking diplomacy. For example, the Soviet
Union attempted to introduce the word "all" before the word
"territories" in the British draft resolution that became Resolution
242. Lord Caradon, the British UN ambassador, resisted these efforts.10
Since the Soviets tried to add the language of full withdrawal but
failed, there is no ambiguity about the meaning of the withdrawal
clause contained in Resolution 242, which was unanimously adopted by
the UN Security Council.

Thus, the UN Security Council recognized that
Israel was entitled to part of these territories for new defensible
borders. Britain's foreign secretary in 1967, George Brown, stated
three years later that the meaning of Resolution 242 was "that Israel
will not withdraw from all the territories."11
Taken together with UN Security Council Resolution 338, it became clear
that only negotiations would determine which portion of these
territories would eventually become "Israeli territories" or
territories to be retained by Israel's Arab counterpart.

Actually, the last international legal allocation
of territory that includes what is today the West Bank and Gaza Strip
occurred with the 1922 League of Nations Mandate for Palestine, which
recognized Jewish national rights in the whole of the Mandated
territory: "recognition has been given to the historical connection of
the Jewish people with Palestine and to the grounds for reconstituting
their national home in that country." The members of the League of
Nations did not create the rights of the Jewish people, but rather
recognized a pre-existing right, that had been expressed by the
2,000-year-old quest of the Jewish people to re-establish their

Moreover, Israel's rights were preserved under the
United Nations as well, according to Article 80 of the UN Charter,
despite the termination of the League of Nations in 1946. Article 80
established that nothing in the UN Charter should be "construed to
alter in any manner the rights whatsoever of any states or any peoples
or the terms of existing international instruments." These rights were
unaffected by UN General Assembly Resolution 181 of November 1947 --
the Partition Plan -- which was a non-binding recommendation that was
rejected, in any case, by the Palestinians and the Arab states.

Given these fundamental sources of international
legality, Israel possesses legal rights with respect to the West Bank
and Gaza Strip that appear to be ignored by those international
observers who repeat the term "occupied territories" without any
awareness of Israeli territorial claims. Even if Israel only seeks
"secure boundaries" that cover part of the West Bank and the
Gaza Strip, there is a world of difference between a situation in which
Israel approaches the international community as a "foreign occupier"
with no territorial rights, and one in which Israel has strong
historical rights to the land that were recognized by the main bodies
serving as the source of international legitimacy in the previous

After Oslo, Can the Territories be Classified as "Occupied"?

In the 1980s, President Carter's State Department
legal advisor, Herbert Hansell, sought to shift the argument over
occupation from the land to the Palestinians who live there. He
determined that the 1949 Fourth Geneva Convention governing military
occupation applied to the West Bank and Gaza Strip since its paramount
purpose was "protecting the civilian population of an occupied
territory."12 Hansell's legal
analysis was dropped by the Reagan and Bush administrations;
nonetheless, he had somewhat shifted the focus from the territory to
its populace. Yet here, too, the standard definitions of what
constitutes an occupied population do not easily fit, especially since
the implementation of the 1993 Oslo Agreements.

Under Oslo, Israel transferred specific powers from
its military government in the West Bank and Gaza to the newly created
Palestinian Authority. Already in 1994, the legal advisor to the
International Red Cross, Dr. Hans-Peter Gasser, concluded that his
organization had no reason to monitor Israeli compliance with the
Fourth Geneva Convention in the Gaza Strip and Jericho area, since the
Convention no longer applied with the advent of Palestinian
administration in those areas.13

Upon concluding the Oslo II Interim Agreement in
September 1995, which extended Palestinian administration to the rest
of the West Bank cities, Foreign Minister Shimon Peres declared: "once
the agreement will be implemented, no longer will the Palestinians
reside under our domination. They will gain self-rule and we shall
return to our heritage."14

Since that time, 98 percent of the Palestinian
population in the West Bank and Gaza Strip has come under Palestinian
jurisdiction.15 Israel transferred 40
spheres of civilian authority, as well as responsibility for security
and public order, to the Palestinian Authority, while retaining powers
for Israel's external security and the security of Israeli citizens.

The 1949 Fourth Geneva Convention (Article 6)
states that the Occupying Power would only be bound to its terms "to
the extent that such Power exercises the functions of government in
such territory." Under the earlier 1907 Hague Regulations, as well, a
territory can only be considered occupied when it is under the
effective and actual control of the occupier. Thus, according to the
main international agreements dealing with military occupation,
Israel's transfer of powers to the Palestinian Authority under the Oslo
Agreements has made it difficult to continue to characterize the West
Bank and Gaza as occupied territories.

Israel has been forced to exercise its residual
powers in recent months only in response to the escalation of violence
and armed attacks instigated by the Palestinian Authority.16 Thus, any increase in defensive Israeli military deployments today around Palestinian cities is the direct consequence of a Palestinian decision
to escalate the military confrontation against Israel, and not an
expression of a continuing Israeli occupation, as the Palestinians
contend. For once the Palestinian leadership takes the strategic
decision to put an end to the current wave of violence, there is no
reason why the Israeli military presence in the West Bank and Gaza
cannot return to its pre-September 2000 deployment, which minimally
affected the Palestinians.

Describing the territories as "Palestinian" may
serve the political agenda of one side in the dispute, but it prejudges
the outcome of future territorial negotiations that were envisioned
under UN Security Council Resolution 242. It also represents a total
denial of Israel's fundamental rights. Furthermore, reference to
"resisting occupation" has simply become a ploy advanced by Palestinian
and Arab spokesmen to justify an ongoing terrorist campaign against
Israel, despite the new global consensus against terrorism that has
been formed since September 11, 2001.

It would be far more accurate to describe the West
Bank and Gaza Strip as "disputed territories" to which both Israelis
and Palestinians have claims. As U.S. Ambassador to the UN Madeleine
Albright stated in March 1994: "We simply do not support the
description of the territories occupied by Israel in the 1967 War as
occupied Palestinian territory."

* * *


1. CNN Larry King Weekend, "America
Recovers: Can the Fight Against Terrorism be Won?," November 10, 2001

2. Mustafa Barghouti, "Occupation is the Problem," Al-Ahram Weekly Outline, December 6-12, 2001.

3. Anne F. Bayefsky, "Terrorism and Racism: The Aftermath of Durban," Jerusalem Viewpoints, no. 468, December 16, 2001.

4. See Bayefsky, op. cit. U.S. and
European officials may use the term "occupation" out of a concern for
the humanitarian needs of the Palestinians, without identifying with
the PLO political agenda at Durban or at the UN.

5. U.S. Department of State, Consular Information Sheet: India ( November 23, 2001.

6. 1999 Country Reports on Human Rights Practices: Azerbaijan, Bureau of Democracy, Human Rights and Labor, U.S. Department of State, February 25, 2000.

7. Case Concerning Maritime
Delimitation and Territorial Questions between Qatar and Bahrain, March
15, 2001, Judgment on the Merits, International Court of Justice, March
16, 2000, paragraph 100.

8. The Japanese Foreign Ministry
does not use the language of "ending the Russian occupation of the
Kurile Islands," but rather resolving "the Northern Territory Issue."
( U.S. Department of
State "Background Notes" describe the Turkish Republic of Northern
Cyprus as the island's "northern part [which is] under an autonomous
Turkish-Cypriot administration supported by the presence of Turkish
troops" -- not under Turkish occupation.

9. Stephen Schwebel, "What Weight to Conquest," American Journal of International Law, 64 (1970):345-347.

10. Vernon Turner, "The Intent of UNSC 242 -- The View of Regional Actors," in UN Security Council Resolution 242: The Building Block of Peacemaking (Washington: Washington Institute for Near East Policy, 1993), p. 27.

11. Meir Rosenne, "Legal Interpretations of UNSC242," in UN Security Council Resolution 242: The Building Block of Peacemaking, op. cit., p. 31.

12. Under the Carter administration,
Hansell's distinction led, for the first time, to a U.S. determination
that Israeli settlement activity was illegal since it purportedly
contravened Article 49 of the Fourth Geneva Convention which stated
that "the Occupying Power shall not deport or transfer parts of its own
civilian population into the territory it is occupying." Subsequently,
the Reagan and Bush administrations altered the legal determination of
the Carter period, changed the U.S. voting pattern at the UN, and
refused to describe Israeli settlements as illegal, even if American political
objections to settlement activity continued to be expressed. One reason
was that the Fourth Geneva Convention applied to situations like that
of Nazi-occupied Europe, which involved "forcible transfer, deportation
or resettlement of large numbers of people." This view was formally
stated by the U.S. Ambassador to the UN in Geneva, Morris Abram, on
February 1, 1990, who had served on the U.S. staff at the Nuremberg
trials and, hence, was familiar with the legal intent behind the 1949
Fourth Geneva Convention.

13. Dr. Hans-Peter Gasser, Legal
Adviser, International Committee of the Red Cross, "On the
Applicability of the Fourth Geneva Convention After the Declaration of
Principles and the Cairo Agreement," paper presented at the
International Colloquium on Human Rights, Gaza, September 10-12, 1994.
Gasser did not state that in his view the territories were no longer
"occupied," but he did point out the legal complexities that had arisen
with Oslo's implementation.

14. Foreign Minister Shimon Peres's
Address at the Israeli-Palestinian Interim Agreement Signing Ceremony,
Washington, D.C., September 28, 1995.

15. Ehud Barak, "Israel Needs a True Partner for Peace," New York Times, July 30, 2001.

16. The present intifada violence
resulted from a strategic decision taken by Yasser Arafat, as admitted
by numerous Palestinian spokesmen:

  • "Whoever thinks the intifada broke out because of the despised Sharon's
    visit to the Al-Aqsa Mosque is wrong....This intifada was planned in
    advance, ever since President Arafat's return from the Camp David
    Negotiations," admitted Palestinian Communications Minister 'Imad
    Al-Faluji (Al-Safir,
    March 3, 2001, trans. MEMRI). Even earlier, Al-Faluji had explained
    that the intifada was initiated as the result of a strategic decision
    made by the Palestinians (Al-Ayyam, December 6, 2000).

  • Arafat began to call for a new intifada in the first few months of the
    year 2000. Speaking before Fatah youth in Ramallah, Arafat "hinted that
    the Palestinian people are likely to turn to the intifada option" (Al-Mujahid, April 3, 2000).

  • Marwan Barghouti, the head of Fatah in the West Bank, explained in
    early March 2000: "We must wage a battle in the field alongside of the
    negotiating battle...I mean confrontation" (Ahbar Al-Halil, March 8, 2000). During the summer of 2000, Fatah trained Palestinian youths for the upcoming violence in 40 training camps.

  • The July 2000 edition of Al-Shuhada
    monthly, distributed among the Palestinian Security Services, states:
    "From the negotiating delegation led by the commander and symbol, Abu
    Amar (Yasser Arafat) to the brave Palestinian people, be ready. The
    Battle for Jerusalem has begun." One month later, the commander of the
    Palestinian police told the official Palestinian newspaper Al-Hayat Al-Jadida:
    "The Palestinian police will lead together with the noble sons of the
    Palestinian people, when the hour of confrontation arrives." Freih Abu
    Middein, the PA Justice Minister, warned that same month: "Violence is
    near and the Palestinian people are willing to sacrifice even 5,000
    casualties" (Al-Hayut al-Jadida, August 24, 2000 -- MEMRI).

  • Another official publication of the Palestinian Authority, Al-Sabah,
    dated September 11, 2000 -- more than two weeks before the Sharon visit
    -- declared: "We will advance and declare a general intifada for
    Jerusalem. The time for the intifada has arrived, the time for intifada
    has arrived, the time for Jihad has arrived."

  • Arafat advisor Mamduh Nufal told the French Nouvel Observateur
    (March 1, 2001): "A few days before the Sharon visit to the Mosque,
    when Arafat requested that we be ready to initiate a clash, I supported
    mass demonstrations and opposed the use of firearms." Of course, Arafat
    ultimately adopted the use of firearms and bomb attacks against Israeli
    civilians and military personnel. On September 30, 2001, Nufal detailed
    in al-Ayyam that Arafat actually issued orders to field commanders for violent confrontations with Israel on September 28, 2000.

* * *

Dore Gold is President of the Jerusalem Center for
Public Affairs. Previously, he served as Israel's Ambassador to the
United Nations (1997-1999). This Jerusalem Viewpoints is based on an earlier Jerusalem Issue Brief on this subject.

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Are Jewish Settlements are legal according to International Law

Jewish Settlements are legal according to
International Law

On the Question of the Legality of the Jewish
Civilian Communities In the Disputed Areas of Judea, Samaria and Gaza

Yisrael Medad

Within the context of international law,
attention must be focused on the Balfour Declaration of 1917. The
text of the Declaration, it should be emphasized, was coordinated with
the United States (the Palestine Royal Commission Report of 1937, p. 22,
notes that it had been approved by U.S. President W. Wilson prior to its
publication). Indeed, the Inquiry Commission established by President
Wilson affirmed “that Palestine should become a Jewish State” and that
“Palestine...was the cradle and home of their vital race”, a succinct statement
of the essence of the principle of self-determination.

That Declaration, issued by the British
Government and later to serve as the basis for the League of Nations Mandate
approved in 1922, refers on the one hand to “a National Home for the Jewish
people in Palestine” while on the other, refers to “non-Jewish communities
in Palestine”.

The distinction is not coincidental.

National and historical rights are recognized
clearly in the context of the Jewish people only, whereas the opposing
parallel, that the land in question ‘belonged to an Arab people’ as Arabs
claim, was not mentioned and purposefully ignored. What was included
in the Balfour Declaration and the Mandate were a nebulous phrase relating
to the “civil and religious rights” of non-specified “non-Jewish communities”,
without reference to Arabs at all.

Furthermore, the aforementioned Mandate
text acknowledges that “recognition has thereby been given to the historical
connection of the Jewish people with Palestine and to the grounds for reconstituting
their national home in that country”. In Article 6, the administration
apparatus of the Mandate, a temporary form of government, was charged with
facilitating and encouraging “close settlement by Jews on the land, including
State lands and wastelands not required for public purposes”.

It is worthy to note that the United States
House of Representatives and the Senate adopted resolutions supporting
the Mandate, on June 30, 1922 and May

3, 1922 respectively. President
W. Harding signed a proclamation on September 21, 1922 that stated that
“the United States of America favors the establishment in Palestine of
a national home for the Jewish People...and that the holy places and religious
buildings and sites in Palestine shall be adequately protected”.
These acts reinforced the position fully understood that the rights accruing
a national grouping belonged solely to the Jewish people and that non-Jewish
elements could claim but protection for singular and individual buildings
and sites.

What cannot be ignored is the historical
connection of the Jewish people to this Land. The continuous presence
of Jews in their homeland over many centuries under Jewish independent
rule (tribal federation and monarchy) and centuries of foreign rule is
itself a proof of right and legality. This presence included, indeed
primarily so, the areas known as Judea, Samaria and Gaza. This presence
was maintained despite destruction of political sovereignty, conditions
of exile, oppression and persecution by the Babylonian, Greek-Syrian, Roman,
Persian, Arab and Ottoman Empires. Despite the early favorable attitude
of the British Empire, the pursuance of the internationally recognized
goals of the Mandate necessitated acts of national liberation akin to those
of the American Colonies in 1777, as well as other countries such as India,
Ireland and African nations. This struggle for freedom forced Great
Britain to turn to the United Nations in 1947.

The resolution adopted by the General Assembly
of the United Nations on November 29, 1947 and accepted by the governing
institutions of the Jewish People is to be seen as the fountainhead of
the recognition of Israel as an Independent State possessing sovereignty.
In rejecting that resolution and in declaring war on the nascent state
of Israel, the Arab communities and neighboring states severed all legal
connection to claims they did or would, in the future, make. In a
sense, that rejection of the compromise proposal of partition revived the
full and inalienable rights of Jews to all the territories included in
the Mandate. These territories include Judea, Samaria and Gaza.

As a result of armed acts of aggressions,
the Jordanian entity subsequently conquered portions of the Palestine Mandate
and Egypt occupied the Gaza Strip district. The non-Jewish communities
of the areas of Judea and Samaria, never having expressed themselves in
criteria of nationhood and geo-political sovereignty previously, never
established a state on this territory following the 1947 Resolution and,
in fact, requested, at the Second Palestine Arab Conference convened in
Jericho on December 1, 1948, that these territories be enjoined to the
Hashemite Kingdom. Indeed, a resolution of unification was signed
into Jordanian law on April 24, 1950, which purported to transfer to the
Hashemite Monarchy sovereign rights to those areas of Western Palestine
not under Israeli control following the 1948-49 War of Independence. That
law negated the terms of international law, and, in any case, was only
recognized by Great Britain and Pakistan.

In the matter of General Assembly Resolution
242, we refer you to the testimony of Eugene V. Rostow who participated
in the negotiations of that Resolution. For example, in The New Republic
issue of October 21, 1991, page 14, Mr. Rostow treats the issue of illegality.
He makes it plain that Jewish settlement in Judea and Samaria is indeed
legal, and that the Jewish right of settlement west of the Jordan River
is “unassailable”.

We now briefly address another point.
The status of the areas of Judea, Samaria and Gaza (YESHA) can in no way
be conceived as being governed by the Fourth Geneva Convention for the
simple reason that they are not occupied territories as defined in this
document. Paragraph (6) of Article 49 of the said Fourth Geneva Convention
is irrelevant to the question at hand in that Article 2 stipulates that
the territory under issue must belong to a High Contracting Party.
This is not the case, as the territory under discussion did not belong
to any such Party. Furthermore, the drafting history of Article 49
was directed against the practices of the Nazi regime in forcibly transporting
populations. It would border on the ridiculous to claim that Article
49 (6) which was fixed so as to prevent a return of heinous Nazi practices
of Judenrein should now be understood as meaning that Judea, Samaria and
Gaza (YESHA) must become empty of Jews.

Moreover, the Convention does not and could
not prohibit the establishment of communities, towns or other civilian
centers. Even government economic incentives cannot be considered
as “mass deportation” or “transfer”. Over 90 percent of the communities
populated by Jews are located on state land, not land privately owned by
Arabs. Indeed, some of the communities are built on land that was
either owned by Jews prior to 1967 or purchased afterwards. One last point.
The basis for an Arab claim to Palestine, formulated by the PLO which
represents itself as the legal vehicle for that claim, is the Palestinian
National Covenant. This document can only be described as racist
and invalid on humanitarian grounds and unacceptable in international law.
In fact, a Palestinian identity has always been a tactical move by Arabs
who always viewed themselves as belonging to a greater Arab nation as in
the case of the request of the General Syrian Congress on July 2, 1919
“that there should be no separation of the southern part of Lebanon [that
is, the Palestine territory] from the Syrian country”, a position repeated
ever since as, for example, by Yasser Arafat when he declared over the
Voice of Palestine on November 18, 1978 that “Palestine is southern Syria
and Syria is northern Palestine”.

In an interview with Matt Lauer on NBC’s
The Today Show on October 1, 1997, Secretary of State Madeleine K.
Albright related to building in Yesha and said: “I wasn't happy…I
felt that going forward with those kinds of buildings was not helpful.
Mr. Lauer pressed her and stated: “ It's legal. “, and Albright admitted:
“It's legal.”

The need for this legal commentary stems
from the fact that Arabs aligned with the PLO have announced that Jewish
communities established in the territories of YESHA are a priori “terrorist”
in nature and are a form of “aggression”. Having thus defined Jewish
civilian in this way, Arabs make the claim that they are defending themselves
and are justified in using all means at their disposal including shooting,
bombing and stabbing such as has been used in this latest wave of violence.
We reject such an approach as immoral, illegal and reminiscent of war crimes
of the recent past.

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The Status of Palestine/Land of Israel and Its Settlement Under Public International Law

The Status of Palestine/Land of Israel

and Its Settlement Under

Public International Law

Talia Einhorn

This paper discusses the
establishment of Israel, the state of the Jewish people, west of the
Jordan River. It shows that the Arab claim that there is a legal right to
a separate Arab state to be established in Judea, Samaria and the Gaza
Strip (in Hebrew acronym – “Yesha”), whereas Jews are forbidden by public
international law precepts from settling there, and the further claim that
all Arabs who can trace their origins to pre-1967 Israel have a right to
return to Israel, have no basis in international law. Nonetheless, Israel
has been put under incessant international pressure calling on it to
recognize the “rights” of the Arab people and to uproot the Jewish towns
and villages in Yesha by deporting hundreds of thousands of Jews to the
territory of tiny, pre-1967 Israel. The international pressure is
supported by internal pressure coming from Israeli citizens, who had been
educated to prefer international comradeship and universal values – even
when those are shattered in the face of reality – over the basic needs of
Jewish national existence. The pressures from within and outside Israel
have caused part of the Israeli public to lose faith in their just cause.
The Oslo Agreements and their difficult consequences are testimony to

Nonetheless, under public
international law, Israel is not obliged to accept or support the
establishment of a sovereign Arab state west of the Jordan River. Indeed,
the dangers emanating from such an Arab state should make all peace lovers
wary of such a “solution” to the Arab-Israeli conflict. This does not mean
that there is no peaceful solution that both Israelis and Arabs would find
desirable. But such a solution requires political will as well as a
serious law reform, some major aspects of which will be mentioned.

The Establishment of Israel, The State of the Jewish People

“If I forget thee O
Jerusalem, let my right hand forget her cunning,” declared Mr. Charles
Malik, the Lebanese Delegate to the United Nations, immediately after the
UN General Assembly adopted its plan of partition. Mr. Abba Eban, the
Israeli Delegate, retorted, “If you keep saying this for two thousand
years we shall start believing it.”1 Jews
can trace their roots in Jerusalem back to the days of Abraham. Jerusalem
has been in the hearts and minds of Jews throughout the history of the
Jewish nation, who physically turn towards Jerusalem when they pray.

Throughout history the
Jewish people have maintained their ties to their Promised Land (according
to the promise made by God to their Patriarchs, Abraham, Isaac and Jacob),
from which they had been expelled by force.

By the rivers of Babylon, there we sat down, yea, we wept when we
remembered Zion. Upon the willows in the midst thereof we hanged up our
harps. For there they that led us captive asked of us words of song, And
our tormentors asked of us mirth: "Sing us one of the songs of Zion." How
shall we sing the Lord's song in a foreign land? If I forget thee, O
Jerusalem, let my right hand forget her cunning. Let my tongue cleave to
the roof of my mouth, if I remember thee not; if I set not Jerusalem above
my chiefest joy. (Psalms 137, 1-6)

During the two millennia of
Diaspora, Jews retained a clear, direct link to their Jewish heritage
through language (Hebrew), religion (Judaism), and culture (practices
common to Jews all over the world). Jewish settlement in Eretz Israel
has not ceased for even a single generation after sovereignty had been
lost. The return of Jews to Israel has intensified and turned into waves
of immigration since 1882.

No other people have ever
turned Eretz Israel into a separate, sovereign, thriving entity to
which they had unique spiritual and cultural links. The Biblical curse –
“I will scatter you among the nations, and keep the sword drawn against
you. Your land shall remain desolate, and your cities shall be a waste”
(Leviticus 26: 33) – has been vindicated. After the Jewish people lost
their sovereignty over the territory of Israel in 70 CE (Christian Era),
the territory was governed in turn by the Romans, Byzantines, Arab
Moslems, Christian Crusaders, Mamluks and Ottomans. Contrary to current
popular thought, there was no Arab “Palestinian” state prior to the
establishment of the State of Israel. Jerusalem fared no better under
Islam. Whereas Mecca and Medina are mentioned many times in the Qur`an,
Jerusalem is not mentioned even once. When Moslems controlled the city,
they never turned it into their capital. During its occupation by Jordan
from 1948 to 1967, no foreign Arab leader came to pray in the al-Aqsa
Mosque on the Temple Mount.

It was in acknowledgement
of the special ties of the Jewish people to their homeland that the
international community recognized Israel as the state in which the Jewish
people had the right to regain their sovereignty. This right was enhanced
by the further acknowledgement that Jews in the Diaspora were in constant
danger of persecution and annihilation, their precarious status
culminating in the Holocaust. The right of all Jews to immigrate
(“return”) to Israel has been an inherent characteristic of the Jewish
State, whose raison d’être is to provide a safe harbor for Jews
worldwide, who wish to practice Judaism openly and undisturbed, living in
a state that, inter alia, celebrates the Sabbath rather than Friday or
Sunday as its day of rest, and where life is free of anti-Semitic attacks
on Jews, or, if such attacks nonetheless take place, they are capable of
actively defending themselves.

Sovereignty Over Eretz Israel Under Public International Law

The Arab nation has
accomplished self-determination and is represented by 21 States,
controlling 99.9% of the Middle East lands and all of its natural
resources. Israel represents only 1/10 of one percent of the lands. Yet,
the Arabs claim that they have a right to another state between the Jordan
River and the Mediterranean Sea. As aforementioned, there was no such Arab
“Palestinian” state prior to the establishment of the State of Israel.2
The claim to Arab sovereignty in Eretz Israel west of the Jordan
River has no basis in public international law.

2.1 The
Palestine Mandate of the League of Nations

In 1920, the San Remo
Conference of the Allied Powers assigned to Great Britain a mandate to
establish the Jewish national home on a territory covering Israel, Jordan
and part of the Golan Heights. The Preamble to the Mandate specifies that
“recognition has thereby been given to the historical connection of the
Jewish people with Palestine.”

  • Article 2 of the Mandate
    made Britain responsible for placing the country under such political,
    administrative and economic conditions as will secure the establishment
    of the Jewish national home in Palestine;

  • Article 6 required
    Britain to facilitate Jewish immigration to Palestine and encourage
    close settlement of the land, including State lands and waste lands not
    required for public purposes;

  • Article 11 required
    Britain to introduce a land system that would promote the close
    settlement and intensive cultivation of the land;

  • Article 7 made Britain
    responsible for enacting a nationality law that would facilitate the
    acquisition of Palestinian citizenship by Jews who take up their
    permanent residence in Palestine;

  • Shortly prior to its
    ratification, Article 25 was added, empowering Britain, with the consent
    of the Council of the League of Nations, to postpone or withhold
    application of the Mandate provisions to the territories lying between
    the Jordan and the eastern boundary of Palestine.

The Palestine Mandate does
not mention Arab national or political rights in the Land of Israel. It
only states that the civil and religious rights of all the inhabitants of
Palestine, irrespective of race and religion, must be safeguarded. The
reason for that is clear, since the object and purpose of the Mandate was
to reconstitute the political ties of the Jewish people to their homeland.

Arab pressure and riots in
Palestine (supported by British officials favoring the establishment of a
homogenous Arab empire, affiliated with Britain, in the whole of the
Middle East3) brought about Churchill’s
White Paper of 1922, that reiterated the right of the Jews to a Homeland
in Palestine, but detached (permanently!) from Palestine all of the area
east of the Jordan River (constituting almost 80% of the territory), and
gave it to the Hashemi family, brought by Britain from Arabia, first as an
Emirate subject to the British Mandatory and, since 1946, as an
independent kingdom. The Mandate was approved by the League of Nations on
July 24, 1922. During the entire period of the Palestine Mandate, the
British who were entrusted with ensuring its fulfillment, in practice
acted to frustrate its very purpose, wishing thereby to appease the Arab
and Moslem world. They did so by limiting Jewish immigration to Israel, by
restricting the sale of land to persons who were not Arabs residents of
Palestine, as well as by poorly administering State lands, allowing the
Arab population to seize them freely.4
The Palestine Citizenship Order-in-Council, 1925, contained no provision
that would facilitate the acquisition of Palestinian citizenship by Jewish
immigrants, as provided in the Palestine Mandate.5

2.2 The
UN Partition Resolution

The UN Partition Resolution
of November 29, 1947 (General Assembly Resolution 181 (II)) regarding the
partition of Palestine into an Arab state and a Jewish state linked by an
economic union, was accepted by Israel’s Jewish population but rejected
out of hand by all Arab states. Under public international law, such
resolutions are mere recommendations without binding effect.

2.3 The
“Green Line” and the Armistice Agreements

In any case, it was not a
UN Resolution that established the State of Israel. Had Israel not
defeated all Arab armies that invaded the newly born state upon
termination of the British Mandate, Israel would not have come into being.
Truly, the Arab states did not declare war on Israel, since such a
declaration might have implied recognition of Israel’s existence. However,
each of the Arab states that attacked Israel, declared thereby a state of
war in an unequivocal manner. The Arab states’ attacks were illegal acts
of aggression, since in public international law, war may not be used to
settle international conflicts. Those must be settled peacefully (subject
to the “self defense” exception). Israel’s War of Independence ended with
the illegal occupation of the Gaza Strip by Egypt and of Judea, Samaria
and East Jerusalem by Jordan.

The 1949 Armistice
Agreements signed between Israel and its neighbors provided expressly that
“[t]he Armistice Demarcation Line is not to be construed in any sense as a
political or territorial boundary.” The element of “defined territory” as
a condition for statehood has always been unclear in the case of Israel.6
The Armistice Agreements specified that they were intended to facilitate
the transition to “permanent peace” and the end of military aggression.

No sooner had the ink dried
on the Armistice Agreements than Israel had to suffer Arab violations
thereof. Syrian snipers frequently shot Israelis working in the valley
underneath or fishing in the Kinneret Lake (Sea of Galilee), and Syrian
artillery shelled Israeli settlements. Numerous terrorist acts of
sabotage, murder, robbery, looting and plunder were launched from the
territories of Egypt and Jordan and deliberately promoted by those states
in violation of the Armistice Agreements. Israel was repeatedly condemned
by the Security Council for its limited retaliatory actions (which were,
in fact, acts in self-defense, designed to prevent future acts of
terrorism), whereas the Arab states were protected from condemnation by a
Soviet veto. Under public international law, states are held responsible
for terrorist activities launched from their territory against other
states, and the state invaded is entitled to use force to protect itself
from those. In addition, in violation of international law, Egypt occupied
the island of Tiran at the mouth of the Gulf of Aqaba and imposed a naval
blockade of the Straits of Tiran, thus preventing Israeli shipping from
reaching Eilat, the Israeli port at the head of the Gulf (Egypt had, since
the early days of the State of Israel, closed the Suez Canal to ships
traveling to Israel or coming from it, another blatant violation of
international law). These activities caused Israel to join France and
Britain in the Sinai Operation (October 25-November 5, 1956), in the
course of which Israel captured the Sinai Peninsula, from which it
withdrew later on, as the United Nations deployed its Emergency Force (UNEF)
in the Sinai.

Security Council Resolutions 242 and 338

In 1967, Egypt’s President
Gamal Abdel Nasser poured seven divisions of the Egyptian army into the
Sinai Peninsula. At his behest, the UN Secretary General U Thant removed
UNEF two days later, precisely when it was supposed to prevent the
escalation of hostilities into war.7
President Nasser further made declarations that left no doubt regarding
his imminent intentions to wage war on Israel. Israel’s diplomatic efforts
to stop the aggression and remove the threat to its existence failed. In
international law, no state is expected to be a sitting duck and wait until
bombs are actually dropped on its territory. The state that engages in
aggressive activities and statements is itself considered the one to have
launched an aggressive attack in violation of international law. After
weeks of mobilization, which paralyzed the Israeli economy, Israel was
finally forced to act in anticipatory self-defense, and on June 5, 1967,
it struck the Egyptian Air Force, destroying its aircraft on the ground.
Syria and Jordan, totally unprovoked, attacked Israel on that same day,
opening fire all along the armistice line. Contingents supporting the Arab
attack arrived from Iraq, Algeria and Kuwait as well. The war ended with
Israel’s victory. The Sinai Peninsula, the Golan Heights, the Gaza Strip,
Judea and Samaria (also known as the “West Bank”), and the Old City of
Jerusalem came under Israeli control.

UN Security Council
Resolution 242, passed in the wake of the Six Day War, was aimed at
establishing the guidelines for a “peaceful and accepted settlement” to be
agreed by the parties. Accordingly, it affirmed that the fulfillment of
Charter principles requires the establishment of a just and lasting peace
in the Middle East which should include the withdrawal of Israeli armed
forces [not necessarily all Israeli armed forces] from territories [not
necessarily all territories] occupied in 1967 as well as the “termination
of all claims or states of belligerency and respect for and
acknowledgement of the sovereignty, territorial integrity and political
independence of every state in the area and their right to live in peace
within secure and recognized boundaries free from threats or acts of

UN Security Council
Resolution 338 which dates to the 1973 Yom Kippur war waged by Egypt and
Syria on Israel without any provocation,8
reiterates Resolution 242 (1967) and declares that “immediately and
concurrently with the ceasefire, negotiations start between the
parties...aimed at establishing a just and durable peace in the Middle

Although not expressly
mentioned in these resolutions, there is no doubt that they were adopted
under Chapter VI of the UN Charter which authorizes the Security Council
to make non-binding recommendations for the peaceful settlement of
disputes (unlike the Security Council’s powers to adopt binding
resolutions and enforcement action under Chapter VII to deal with threats
to the peace, breaches of the peace, and acts of aggression, the recent
resolutions adopted against Iraq being a case in point).

2.5 The
Peace Treaties with Egypt and Jordan

According to the peace
treaty with Egypt (following the Camp David Accords), Egypt regained the
Sinai Peninsula and an international border was fixed by consent between
Israel and Egypt. The peace treaty with Jordan fixed the international
border between them. Israel does not have an international border with
Syria and Lebanon. Such a border can only be fixed by agreement between
Israel and these countries.

2.6 The
Status of Yesha in Public International Law

Judea, Samaria and Gaza
were all part of the Palestine Mandate territory until 1948. During
Israel’s War of Independence, Egypt occupied (unlawfully, under public
international law) the Gaza Strip, and Jordan occupied (likewise,
unlawfully) Judea and Samaria (the “West Bank”).9
Egypt has never claimed title to the Gaza Strip. By contrast, Jordan
purported to annex Judea and Samaria in 1950. The annexation was not
recognized under public international law, Britain (with a reservation
regarding East Jerusalem) and Pakistan being the only states to recognize
the annexation, which was also vehemently opposed by the Arab states.10

In 1967, following the Six
Day War, the territories of Yesha, which had been originally designated
for the Jewish national home according to the Mandate document, returned
to Israeli rule. Leading international law scholars opined that Israel was
in lawful control of Yesha, that no other state could show better title
than Israel to Yesha’s territory, and that this territory was not
“occupied” in the sense of the Geneva Convention, since those rules are
designed to assure the reversion of the former legitimate sovereign which,
in this case, does not exist.11 Israel
was therefore entitled to declare that it has exercised its sovereign
powers over Yesha. In practice, however, for political and other reasons,
Israel exercised its sovereign powers only with respect to East Jerusalem.
Regarding the rest of Yesha, Israel’s official position was that Israel
was entitled to annex them, and that, since they had not been taken from a
legitimate sovereign, the Fourth Geneva Convention and the Hague
Regulations 1899/1907 were inapplicable there. Nonetheless, Israel chose
voluntarily to observe and abide by the humanitarian provisions included

In 1988, King Hussein
declared that Jordan severed its legal and administrative ties with the
West Bank.

In 1993, the PLO signed the
Declaration of Principles which states that Resolutions 242 and 338 should
provide the basis for negotiations with Israel. In 1994, in accordance
with the agreements made with the PLO, Israel handed over to the
Palestinian Authority extensive powers – regarding both civil and security
affairs – over a substantial part of Yesha in which the Arab population
was concentrated.

Resolutions 242 and 338 do
not mandate the establishment of a separate Arab state in Judea, Samaria
and the Gaza Strip. Neither have the interim agreements entered between
Israel and the PLO determined the question of sovereignty over these

The Jewish Settlements in Yesha Under Public International Law

3.1 The
Rules of Public International Law Regarding “Occupied Territories”

Even if Israel had been an
occupant in Yesha, Jewish settlement there would have been permitted under
public international law. Article 49 of the Fourth Geneva Protocol only
prohibits the Occupying Power from deporting or transferring parts of its
civil population into the territory it occupies. It does not prohibit
civilians from acting on their own, purchasing land in occupied
territories and settling there among the existing population of that
territory. This prohibition is aimed at preventing the occupant from
introducing a fundamental demographic change in the structure of the
population of the occupied territory.13
In addition, the occupant may actively establish civilian settlements for
its citizens in the occupied territories, if such settlement is warranted
by security needs of the occupant, and concerns territories in which its
presence and control are deemed necessary.14
This does not mean that the land must be used to serve the army’s own
needs. It suffices that the military considers: (i) that the land should
not be left in the hands of the enemy, for fear that it would be used by
the enemy for its purposes, and (ii) that the land is important from a
military and security perspective.

With respect to public
land, Article 55 of the Hague Regulations provides that the occupying
state shall be regarded only as administrator and usufructuary of public
buildings, real estate, forests, and agricultural estates belonging to the
hostile state, and situated in the occupied country. The occupying state
must safeguard the capital of these properties (subject to reasonable
amortization), and administer them in accordance with the rules of
usufruct. Among others, the occupying state is entitled to rent out such
land or cultivate it.15

Regarding private property,
the situation is different. According to Article 46 of the Hague
Regulations, the occupying state must respect private property and it must
not confiscate it, that is – expropriate it without consideration for an
illegal purpose.16 The occupying state
may, however, assume temporary possession of private property, against
consideration, for the purpose of establishing civilian settlements that
serve its security needs.17

As aforementioned, with
respect to Yesha, Israel was not obliged, under international law, to
apply the Hague Regulations or the Fourth Geneva Convention. However, in
the cases brought before the Israeli courts, the state declared that,
although not legally obliged to apply these rules in Yesha, it will
nonetheless apply the humanitarian provisions included in them. As far as
the court was concerned, it accepted the state’s position and abstained
from deciding on it on its merits. This is the background against which one
must read the decisions of the Israel Supreme Court, according to which
private property can be seized (against consideration) for the
establishment of civilian settlements only to the extent that such
settlement is necessary for security reasons, whereas confiscation of
private property for the establishment of settlements which is not
motivated by security considerations is prohibited (the “Elon Moreh”
case).18 In another case, the Court
allowed the seizure of land, despite the claim of the applicant that the
area concerned was all very quiet and posed no threat to the peace. The
Court’s reply (Justice Witkon) stated that

there is no better cure to a malady than its prevention at onset, and it
is better to discover and thwart a terror act before it has been
committed... One does not have to be a military and security expert to
realize that terrorist elements operate more easily in an area inhabited
only by a population that is indifferent or is sympathetic towards the
enemy than in an area where there are also persons likely to look out for
them and to report any suspicious movement to the authorities. Among the
latter, terrorists will find no hideout, assistance or supplies.

In other cases the Supreme
Court declined to address the legality of Jewish settlement beyond the
Green Line, since the status of the settlements will be determined
definitely in the peace treaty, when such is signed, and “until then it is
the duty of the respondent [in casu, the Israel Defense Forces (IDF)
Commander of the Gaza Strip – T.E.] to protect the civil population (Arab
and Jewish) in the area within his military control.”20

3.2 The
Settlements in Yesha

Israel is not a foreign
occupying power in Yesha, and therefore there is no rule in international
law to prevent Israel from establishing civilian Jewish towns and villages
on state lands.21 The initiative to
establish the settlements may be taken either by the state or by private
persons. Insofar as private property is concerned, Israel is entitled to
expropriate such land (against consideration) for a range of public
purposes, according to the standards existing in democratic states
(including “tiny” Israel – that is, pre-1967 Israel within the “Green
Line” – itself).

3.3 The
Agreements with the PLO

The Interim Agreement of
September 28, 1995, entered between Israel and the PLO for a period of
five years from the Gaza-Jericho Agreement of May 4, 1994, provides that
Judea, Samaria and the Gaza Strip (including state lands) will be handed
over to the Palestinian Authority in stages (Art. 16 of Annex III –
Protocol Concerning Civil Affairs – of the Interim Agreement). Therefore,
in areas handed over to the Palestinian Authority, its authority extended
also to state lands for an interim period of five years.

But the Interim Agreement
does not apply at all to those issues which will be discussed during the
final status negotiations, including the issues of Jerusalem and the
Jewish settlement in Yesha (Art. XXXI(5) of the Interim Agreement).
Moreover, the Interim Agreement provides that the parties agree that the
results of the final status negotiations will not be influenced and not be
adversely affected by the interim arrangements, and the parties will not
be deemed to have waived any of the rights, claims and positions that they
allege, as a result of their entering the Interim Agreement (Art.
XXXI(6)). The Interim Period is over by now. Truly, Article XXXI(7)
provides that the parties are prohibited from initiating activities that
will change the status of Yesha prior to the final status arrangements.
However, had this provision been capable of preventing the establishment
of new Jewish settlements, it would have rendered Article XXXI(6) devoid
of meaning and therefore redundant. The Palestinian Authority has not
applied such an interpretation to its own acts, since that would have
prevented the Arab population, too, from building in the land handed over
to the PA under the Interim Agreement. In any case, the Interim Period has
elapsed and this provision is not valid any longer.

In conclusion, the Interim
Agreement does not restrict the Jewish settlement of Yesha. The existing
settlements may be expanded, and new settlements may be established.

4. The Refugee Problem

As a result of the 1948
war, Israel absorbed some 600,000 Jewish refugees from all over the Arab
world, and about the same number of Arabs left Israel. Every war in
history has yielded its share of refugees. The novel aspect of the Jewish
– Arab conflict has been provided by the Arab countries’ deliberate
refusal to absorb and integrate their refugees, despite their vast
territories and their rich oil resources. Israel, on the other hand,
absorbed the Jewish refugees without any compensation being received for
the property that they had to leave behind and without any help from
international organizations. Had the Arab countries only used the property
that they had expropriated from the Jews who had fled to Israel, there
would have been no difficulty whatsoever to absorb the people whom they
openly declare to be their brothers.22
Indeed, there is no parallel in history to an everlasting refugees’
problem, since in the normal course of events, every state absorbs the
people who share the ethnic origin in common with its citizens. Moreover,
according to data provided by the Palestinian Authority,23
there are nowadays more than 5 million such persons. Their admission would
mean that Israel, with its 6.4 million citizens (which include a
substantial minority of almost 19% of Israeli Arabs) would cease to be the
state of the Jewish people.

UN Security Council
Resolution 242 does not mention the Palestinians. This was no omission.
The Resolution calls for “a just settlement of the refugee problem” in
acknowledgment that both sides had their share of refugees. Indeed, the
fact that there were both Jewish and Arab refugees cannot be ignored when
a final and just settlement is contemplated.

In recent years a claim has
been advanced that the Palestinians are a separate people and therefore no
exchange of populations could have taken place. However, there is no
“Palestinian” language and no distinct “Palestinian” culture. Palestinians
are Arabs, indistinguishable from Jordanians, Syrians, Lebanese, Iraqis,
etc. The statement made on September 29, 1947 by Mr. Husseini,
Representative of the Arab Higher Committee, to the Ad Hoc Committee on
the Palestinian Question makes this point clearly:

One other consideration of fundamental importance to the Arab world was
that of racial homogeneity. The Arabs lived in a vast territory stretching
from the Mediterranean to the Indian Ocean, spoke one language, had the
same history, tradition and aspirations. Their unity was a solid
foundation for peace in one of the most central and sensitive areas of the
world. It was illogical, therefore, that the United Nations should
associate itself with the introduction of an alien body into that
established homogeneity, a course which could only produce new Balkans.

Before 1967, Palestinians
living in the West Bank and in Gaza did not demand a separate right of

5. The Risks Posed by an Arab Sovereign
State West of the Jordan River

The promoters of the
Israel-PLO Agreements expected them to improve the economy in the
territories controlled by the Palestinian Authority (the “territories”)
and enhance security and peace in both Israel and the territories. Such a
development has not taken place. Instead, the Palestinian Authority (PA)
has given Israel a preview of the risks posed by a terroristic entity
established alongside Israel.

The killings of innocent
Israeli citizens through harsh and gruesome, well-planned attacks by Arabs
who could then escape to safe havens in the PA-controlled territories, has
become part and parcel of the “peace process” since its inception. The
Palestinian “police” (in effect, Chairman Arafat’s regular army)
established under the Oslo Agreements, did not turn the guns provided by
the Israeli government to defend themselves against the “enemies of peace”
from within, but rather against the Israel Defense Forces (IDF) and Jewish

In the Israel-PLO Interim
Agreement, the parties committed themselves to foster mutual understanding,
abstain from incitement and prevent incitement by any organizations,
groups or individuals within their jurisdiction. In reality, however, the
Palestinian Authority’s television and press have never ceased to
broadcast and publish incitement of the most virulent kind.25
The books and programs present the whole Jewish people, past and present,
as the source of evil, using classic and modern anti-Semitic libels.

The worst of all is the
cynical use made of children in active warfare. Rather than protect them
as the Israelis do, Chairman Arafat and his people place them in the front
line and encourage them to throw stones and ignite explosives, and create
a live shield behind which adults fire with guns and rifles at Israeli
positions. Daily television and newspapers praise Jihad (holy war).
Children are taught that to be a “shahid” (martyr) who murders
Jewish men, women and children indiscriminately, is a virtue. The
Protocols to the Geneva Convention of 1949 set the age below which
children may not be recruited into the armed forces at 15 years.
Article 38 of the UN Convention on the Rights of the Child provides that
“State Parties shall take all feasible measures to ensure that persons who
have not attained the age of 15 years do not take a direct part in

The Interim Agreement
provided specifically (Art. V and Appendix 4 of Annex I – Protocol
Concerning Redeployment and Security Arrangements – and Art. 32(3) of
Appendix 1 – Powers and Responsibilities for Civil Affairs – to Annex III
– Protocol Concerning Civil Affairs) that Jews would be ensured free,
unimpeded and secure access to the “Shalom ‘al Israel” Synagogue in
Jericho and Joseph’s Tomb in Shechem and freedom of worship and practice
there. Shortly after the agreement came into effect, the synagogue was
torched and looted. Later on, Joseph’s Tomb was destroyed and desecrated.

The peace process and the
economic agreements made between Israel and the PLO (including the
establishment of a customs union between Israel and the territories
controlled by the PA) should have yielded “dividends of peace” to the Arab
population.26 Instead, the standard of
living of ordinary Palestinians has substantially deteriorated, that
despite billions of dollars poured by donor states (mainly the EU, the US
and Japan). PA corruption has squandered and mismanaged the funds.27
Substantial funds from the donor states were channeled through personal
account of PA officials. The aims of the customs union were frustrated.
Instead of promoting the establishment of a functioning and thriving
economy, the PA established more than 100 exclusive importing agencies or
monopolies controlled by persons with close contacts to Chairman Arafat,
some of them serving simultaneously as PA officials. Independent
Palestinian entrepreneurs lost a substantial share of their Palestinian
market. The PA-controlled monopolies thus served to transfer income from
the poorer classes to a new economic class that used some of the money to
pay a self-serving bureaucracy, which in turn, helped that class become
ever richer. The legal system established by the PA was a sham, providing
only a façade of justice, another tool to serve the Authority rather than
the population. In the absence of a proper rule of law and the necessary
legal infrastructure, investors were not attracted, industries were not
created, and employment and trading activity have deteriorated.

Israeli citizens have
suffered serious economic damage, too, resulting from deliberate sabotage
of equipment and countless thefts by Arabs residing and taking refuge in
the PA. The Israeli economy has suffered from the direct and indirect
implications of the war against terror, the extra costs imposed on the
Israeli economy by the ever growing security expenditure, and the insecure
climate which scares away investors.

Yet, blame for the poverty
and frustration of the Palestinians has been put on Israel. Moreover,
human rights organizations have turned a blind eye to the grave
transgressions committed by the PA which has shown no respect for the
basic human rights of the Arab population (e.g., total repression of
criticism, public executions of people suspected of cooperation with
Israel, the use of ambulances to carry explosives and suicide bombers)
while making every effort to detect, and often invent, “crimes” committed
by Jews.

6. The Possible Impact of the
International Criminal Court

The International Criminal
Court, established under the Rome Statute (in force as of July 1, 2002) to
try people who have committed the crime of genocide, crimes against
humanity, war crimes, or the crime of aggression (yet to be defined),
poses yet another grave risk to Israeli citizens, their leaders and
soldiers. Whereas the Rome Statute does not even mention well-established
crimes, such as airplane hijacking, the taking of hostages, and attacks on
internationally protected persons, the Statute includes (Art. 8(b)(viii))
“the transfer, directly or indirectly, by the Occupying Power of parts of
its population into the territory it occupies...”, a crime inserted at the
initiative of the Egyptian delegation, in order to render the Jewish
settlement of Yesha a war crime, and make all those who live there or
fight to protect them be considered war criminals, even if the settlements
were not established by the State of Israel, even if the initiative came
from the settlers, even though their establishment has not violated the
Fourth Geneva Convention (irrespective of the issue of its applicability
in Yesha, dealt with in para. 3.1 above) or any existing rules of public
international law.

Had Israel ratified the
International Criminal Court (ICC) Convention, it would have made it
possible to charge with war crimes Jews living in Jerusalem, the ancient
capital of the Jewish people, in Hebron, the site of the tombs of the
Matriarchs and Patriarchs of the Jewish people, and in any other part of
Judea, Samaria and the Gaza Strip.

Settlements in occupied
territories, in general, could hardly be considered “the most serious
crimes of concern to the international community as a whole”, as defined
in the Preamble of the ICC Rome Statute. Their inclusion in it and the
grounds for that are cause for deep concern.

Moreover, unlike the World
Trade Organization (previously GATT) which only admits states having a
market economy, the Rome Statute admits states which have no regard
whatsoever for fundamental freedoms and basic human rights. The judges and
prosecutor will be appointed by all contracting parties on a regional

Israel is capable of
shielding its citizens from prosecution by not ratifying this
international treaty. The jurisdiction of the Court is limited to acts
committed on the territory of a contracting party and to nationals of
contracting parties.

But, should an Arab state
be created west of the Jordan, it will have the right to ratify this
treaty and thereby put every Israeli leader and every Israeli citizen at
the risk of being prosecuted for any of the crimes mentioned therein.28
The UN conference against Racism in Durban (Summer 2001) and the numerous
condemnations of Israel by the UN General Assembly, the Security Council,
UNESCO, the UN Secretary General, and the UN Human Rights Commissioner,
may provide us with insight into what Israel may expect from this new
institution created by the United Nations. Although every state has a
right to self-defense under public international law, Israel has been
condemned time and again by the international community for acts taken in
self-defense. Political and other reasons have made the international
community, the international media, and human rights activists, apply
double standards to Israel.29 The fear
alone from such prosecution may paralyze Israelis, their political
leaders, and their army commanders from defending Israel as they should.
Israel must prevent such a risk from materializing.

7. The Preconditions for a Peaceful

The above legal arguments
notwithstanding, the Jewish population of Israel has at all times wished
to make peace with their neighbors. Since 1947, Israeli leaders have, one
after another, agreed to accept programs that would bring peace in the
Middle East. Israel has had an ever-growing peace camp. The late Prime
Minister Menachem Begin ceded Egyptian territories captured during the Six
Day War, the whole of the Sinai Peninsula, in return for a peace
agreement, calling for “No more bloodshed. No more tears.” Upon signing
the Declaration of Principles with the Palestinian Liberation Organization
(PLO), Prime Minister Yitzhak Rabin declared on the White House lawn: “We
have had enough of blood and tears. Enough.” Israeli children are brought
up to understand the viewpoint of the Arabs, a task hardly ever taken up
by nations in times of conflict. Prime Minister Ehud Barak attempted to go the extra mile
towards a lasting peace by dividing Jerusalem and giving up the Temple
Mount, the heart and soul of the Jewish people.

But whereas in Israel,
people were rallying and demonstrating in their hundreds of thousands in
support of the peace process, the Arab perception of the so-called “Peace
Process” turned out to be a very different one. Indeed, the very term
“Peace Process” is a contradiction in terms unless and until the
following, elementary pre-conditions are met30:
Arab democratic institutions must be established; Arab governance must
become transparent and accountable; the Arab reformed legal system must
protect individual rights and subject its authorities to open criticism;
private law being the charter of a free society, private sector initiative
– the key to economic prosperity – requires legal rules that govern
property rights, their transfer and the settlement of disputes by an
independent judiciary. The rules must be transparent, stable and
enforceable in a fair and efficient manner; violence must be renounced and
outlawed; Arab leadership must engage in education to peace and relinquish
incitement and anti-Jewish hate propaganda.


The Jewish people’s
historical right to Eretz Israel had been recognized by the
international community and upheld by the rule of public international
law. Israel is not obliged to support the creation of an Arab state west
of the Jordan River alongside Israel. The Oslo Agreements were made with a
view to enhance “a just, lasting and comprehensive peace”. Yet, since
their coming into effect, the Middle East has witnessed, not peace, but
violence of the worst kind in recent history. The establishment of the
Palestinian Authority should serve as a “guide to the bewildered” of the
grave risks posed by such an Arab state, which may eventually lead to the
destruction of the Jewish state.

Under public international
law, Israel is entitled to diligently encourage and promote close Jewish
settlement of Eretz Israel, thereby realizing the principles set
out by the League of Nations in the original Mandate document.



confirmed this story with Mr. Abba Eban – T.E.


On the historical development
of the term “Palestine” as synonymous to the Holy Land, or the Land of
Israel (Eretz Israel), see The History of Eretz Israel. Volume 9: The
British Mandate and the Jewish National Home
(Y. Porath/ Y. Shavit
(eds.))(Yad Ben-Zvi/ Keter 1982) (in Hebrew), pp. 263f.


See, e.g., the account of the
riots written in April 1920, by Robert Meinertzhagen, Middle East Diary
(London: Cresset Press 1959) 79ff.


Ya’akov Shavit and Gideon Biger,
“The British Mandate over Palestine: Rule, Administration, and
Legislation,” in: The History of Eretz Israel. Volume 9: The British
Mandate and the Jewish National Home
, supra n. 2, 86, at pp.
103-106, 130-131.


pp. 92-93. Palestine Citizenship Order-in-Council, 1925, Laws of
Palestine 1918-1925
, pp. 92-115.


P. Malanczuk, “Israel: Status,
Territory and Occupied Territories,” Encyclopedia of Public
International Law
, vol. 12, 149 (1990).


The withdrawal of the UN Forces
is critically analyzed by Rosalyn Higgins, “The June War: The United
Nations and Legal Background,” in: J.N. Moore (ed.), The Arab-Israeli
(Princeton, N.J.: Princeton University Press 1977) 535,


Eugene V. Rostow, “The
Illegality of the Arab Attack on Israel of October 6, 1973,” in: J.N.
Moore (ed.), The Arab-Israeli Conflict , supra n. 7, 458.


Stephen Schwebel, “What Weight
to Conquest?” in: The Arab-Israeli Conflict, supra n. 7, 357, 359. The author explains the illegality of the Egyptian and
Jordanian occupation on the basis of the maxim ex injuria jus non
; the illegal attack by Israel’s Arab neighbors could not vest
them with lawful title in the territories of Palestine that they occupied
following their invasion.


Yehuda Zvi Blum, “The Missing
Reversioner: Reflections on the Status of Judea and Samaria,” 3 Israel
Law Review
279, 288 (1968); Malanczuk, supra n. 6.


Stephen Schwebel, supra
n. 9, concludes that “[w]here the prior holder of territory had seized
that territory unlawfully, the state which subsequently takes that
territory in the lawful exercise of self-defense has, against the prior
holder, better title,” ibid., at p. 359; Julius Stone, “The Middle East
under Cease-Fire,” in: J.N. Moore (ed.), The Arab-Israeli Conflict,
Volume II: Readings
(Princeton, NJ: Princeton University Press 1974)
47, 68-71; id., “No Peace – No War in the Middle East”, in: Moore (ed.),
The Arab-Israeli Conflict, supra n. 7, 310, at p. 325; Y.Z.
Blum, supra n. 10.


Meir Shamgar, “The Observance
of International Law in the Administered Territories,” 1 Israel
Yearbook of Human Rights
(1971) 262. Shamgar compares (ibid., 263)
Israel’s position regarding the inapplicability of the Fourth Geneva
Convention and the Hague Regulations in Yesha to France that did not apply
in Alsace-Lorraine Rules 42-56 of the Hague Regulations, following their
seizure by France from Germany until the signing of the peace treaty at
the end of World War I. In both cases, the territory was not taken from a
lawful sovereign.


Yoram Dinstein, The Laws of
(Tel-Aviv: Schocken/ Tel-Aviv University 1983) (in Hebrew)


Ibid. Cf. also Ayub
v. The Minister of Defense [“Beit-El case”] (HCJ [=High Court of
Justice] 606, 610/78), 33(2) PD [Piskei Din, collection of
judgments of the Israel Supreme Court (in Hebrew)] 113, 124-127. An
abridged English version is brought in Meir Shamgar (ed.), Military
Government in the Territories Administered by Israel 1967-1980: The Legal
(Jerusalem: Hebrew University of Jerusalem/ Sacher Institute
1982) Annex A, 371ff.



v. Commander of Judea and Samaria (HCJ 285/81), 36(1) PD


Beit El case, supra n.
14, p. 123.


Ibid., pp. 129-130.



v. Government of Israel [“Elon Moreh case”] (HCJ 390/79), 34(1) PD 1.


Beit El case, supra n.
14, 118-119.


Gussin v. IDF Commander in the
Gaza Strip (HCJ 4219/02), 56(4) PD 608, 611 (per Justice Aharon
Barak, President of the Israel Supreme Court).


Regarding the meaning of “State
lands” in this context, see the Order concerning Government Property (the
Area of Judea and Samaria) (No. 59), 5727-1967; cf. also Pliah Albek,
“What are State Lands? – The State Lands in Judea, Samaria and the Gaza
Strip,” Ha-Lishka (5759-1999) 46, pp. 9-11.


Cf. Itamar Levin, Locked
Doors: The Seizure of Jewish Property in Arab Countries
(2001) (in
Hebrew); see also Samuel Katz, Battleground, 3rd ed. (Tel-Aviv:
Zmorah-Bitan 1995) (in Hebrew)/ (Taylor 2002) (in English), especially
chapters 2 and 7.


The data are taken from the website
of the Palestinian National Authority <>.


GAOR, 2nd Session, 1947, Ad Hoc
Committee on the Palestine Question, pp. 5-11, brought by R. Lapidoth/ M.
Hirsch (eds.), The Jerusalem Question and its Resolution: Selected
(Dordrecht: Martinus Nijhoff 1994) p. 13.


Cf. the studies carried out by
Professor Itamar Marcus, Director of the Center for Monitoring the Impact
of Peace (PMC), special report # 30 (September 11, 2000). Some of the
studies are brought in



Talia Einhorn, “The Need for a
Rule-Oriented Israeli-Palestinian Customs Union: The Role of International
Trade Law and Domestic Law,” 44 Netherlands International Law Review
315 (1997); see also the author’s testimony before the US Congress Joint
Economic Committee, October 21, 1997 Hearing on the Economic Relations
between Israel and the Palestinian Authority:



Ronen Bergman, Authority
(Yediot Aharonot 2002) (in Hebrew).


Cf. Talia Einhorn, “Israel and
the International Criminal Court,” Nativ (4-5/2002) 36 (in Hebrew).


Alan Dershowitz, “Israel – the
Jew Among the Nations,” in: Israel Among the Nations: International and
Comparative Law Perspectives on Israel’s 50th Anniversary
Siehr and Einhorn [eds.]) (The Hague: Kluwer Law International 1998) 129.


Cf. in detail, Talia Einhorn,
“The Arab-Israeli Peace Process: The Law Reform Perspective,” 3 European Journal of Law Reform (2001) 149-161.

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