Tuesday, September 4, 2007

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 <www.palestinehistory.com/reftoday.htm>.


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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