As promised, a different sort of posting here: legal and historical background that is essential to understanding Jewish rights in the land.
This review will be succinct, with
links to informational sites for those who wish to know more.
It is important to save
and share this material, as it provides data critical for properly defending
Israel. Emphasis has been added to certain
key phrases.
As always, I welcome serious
questions.
~~~~~~~~~~~~~~~~~~~~
With the destruction of the
Second Temple in 70 CE, the Second Jewish Commonwealth came to an end.
From then until modern times, what had been Judah, and was renamed
Palestina by the Romans, was only an appendage to one empire or another, never
an independent country.
~~~~~~~~~~
San
Remo
Jewish legal rights in the land in
modern times began with the San Remo Conference and resultant San Remo
resolution, which has been called the Jewish Magna Carta.
For centuries, Palestine had been
part of the (Turkish, Muslim) Ottoman Empire. With the end of WWI, the land
of that Empire was taken by the Allies. Great Britain, France, Italy and
Japan, with the US as observer, met in San Remo, Italy, to decide how it would
be divided: Palestine was put under British Mandatory rule.
~~~~~~~~~~
Balfour Declaration
At San Remo it was decided to
incorporate the Balfour Declaration into Britain's mandate. The
Declaration, in the form of a letter, was an endorsement by the British
government of the establishment of a Jewish home in Palestine. Written in
1917 by the British Foreign Secretary Lord Balfour, and sent to Lord Rothschild,
it stated:
"His Majesty's Government view
with favour the establishment in Palestine of a national home for the Jewish
people, , and will use their best endeavors to facilitate the achievement of
this object."
Full text of letter: http://www.jewishvirtuallibrary.org/jsource/History/balfour.html
~~~~~~~~~~
By
"Right"
In June 1922, Winston Churchill,
who was then British Secretary of State for the Colonies, wrote in a policy
paper that:
"...in order that this community
should have the best prospect of free development and provide a full opportunity
for the Jewish people to display its capacities, it is essential that it should
know that it is in Palestine as of right and not on
sufferance."
~~~~~~~~~~
League of Nations
Formalizes Mandate
In July 1922, the League of
Nations, predecessor to the UN, formally adopted the British Mandate for
Palestine -- a legally binding document that was approved by
all 51 members of the League of Nations.
It agreed that:
"the Mandatory [Britain] should be
responsible for putting into effect the declaration originally made on November
2nd, 1917 [Balfour Declaration], by the Government of His Britannic Majesty, and
adopted by the said Powers, in favor of the establishment in Palestine
of a national home for the Jewish people..."
And it gave recognition
to:
"the historical connection
of the Jewish people with Palestine and to the grounds for
reconstituting their national home in that country."
The term "reconstituting" gave
acknowledgement to the fact that there had been a Jewish nation in
Palestine at an earlier time.
Full text of resolution: http://avalon.law.yale.edu/20th_century/palmanda.asp
~~~~~~~~~~
"Mandate"
Explained
The mandatory system of the
League of Nations was based on the principle of Allied administration
of Mandate territories until such time as they were able to stand
alone. That is, it was understood at the beginning that the
British would ultimately withdraw, leaving an established
Jewish homeland.
~~~~~~~~~~
Area of Mandate
Palestine
The original area of Palestine,
for which the British Mandate was assigned, included Transjordan (what is today
Jordan, on the eastern side of the Jordan River).
Credit:
Hebroots
In September 1922, very soon after
the League of Nations had adopted the Mandate resolution, Britain assigned
TransJordan to Hashemite Arabs from Saudi Arabia. The Jewish part of the
Mandate was thus reduced by over 70%.
Jews then had the right to
settle anywhere in a 10,000 sq.mi. area between the Jordan River and the
Mediterranean Sea.
Credit:
Fanack
~~~~~~~~~~
Mandate Transfer to
UN
With the formal demise of the
League of Nations in 1946, the United Nations was established to succeed
it. The UN assumed obligations of the League: Territories under
Mandate were to have a "trusteeship system" applied -- this was a
continuation of the Mandate system of the League.
Article 80 of the UN declared that
"nothing in the [UN] Charter shall be construed...to alter in any manner the
rights whatsoever of any states or peoples or the terms of existing
international instruments." This preserved the Jewish right to settle in
Palestine.
~~~~~~~~~~
Violence
in Palestine
From the time of the establishment
of the Mandate for Palestine, Arab challenges to it were considerable,
and were often expressed violently. This was in spite of the fact at
that the same that the Mandate for Palestine was established for the Jewish
homeland, Mandates for Syria, Lebanon and Iraq were established, all for
Arab populations. Arabs were, and still are, offended by the presence of a
Jewish state.
Perhaps most grievous of all was
the Hebron massacre of 1929: for three days Arabs went on a murderous rampage in
the city, killing 67 Jews and destroying property. In the aftermath, the
second holiest city of the Jews was left bereft of Jews for the first time in
hundreds of years. (Ultimately the British prevented Jews from living in
the city because they said they couldn't protect them.)
~~~~~~~~~~
Partition of
Palestine
In 1947, the British, who no
longer wished to contend with the situation, declared intention to pull out
by mid-1948, and turned the Mandate back to the United Nations. A UN
Commission considered the matter and recommended a partition of Palestine into
one state for the Jews and one for the Arabs, with Jerusalem to be
internationalized at first.
Credit:
Wikipedia
This recommendation was placed
before the General Assembly as Resolution 181, which was adopted on November 29,
1947 by a vote of 33 to 12, with 10 abstentions. The Arab nations voted
as a bloc against.
It is imperative to note
that General Assembly Resolutions carry no weight in international
law. This resolution was only a recommendation -- it was
not binding and it did not supersede the Mandate for Palestine in international
law.
The text of the resolution: http://www.yale.edu/lawweb/avalon/un/res181.htm
Legally, this plan would
have had binding force only as an agreement between the two parties,
i.e., the Jews of Palestine and the Arabs of Palestine.
However, while the Jewish
population of Palestinian accepted the proposal, the Arab population did not:
they rejected the entire resolution. Thus the partition plan was
aborted.
See more here: http://www.mythsandfacts.org/conflict/10/resolution-181.pdf
There is no way for Arabs today to
re-instate this resolution or to claim that Jews have a right to only what was
defined as a Jewish state by this aborted resolution.
~~~~~~~~~~
Declaration of the
Establishment of the State of Israel
On May 14, 1948 (Hebrew date: 5th
of Iyar 5708), the Jewish People's Council gathered at the Tel Aviv Museum, and
approved a proclamation, declaring the establishment of the State of Israel.
It asserted the natural right
of the Jewish people to be like all other peoples, exercising self-determination
in its sovereign state and proclaimed the establishment of a Jewish
state named "the State of Israel."
It is important to note that
Israel's legal legitimacy did not derive from the aborted
partition plan -- even though the state was founded on that portion of Palestine
that Resolution 181 had allocated for a Jewish state.
It was established according to
international norms: based on a declaration of independence by
its people and on the establishment of an orderly government within
territory under its stable control.
The portion of Palestine on which
Israel was not established became unclaimed Mandate land.
Nothing in international law had superseded the status of this land as Mandate
land.
~~~~~~~~~~
War of
Independence
Within a day of the establishment
of the State of Israel, it was attacked by the states of the Arab League, with
clear, openly stated, intention of destroying the new state.
When the war ended in 1949, Israel
controlled more territory than it had when independence was declared.
Egypt controlled Gaza, and Jordan controlled Judea and Samaria (the West
Bank). Western Jerusalem was in Israel's hands, and eastern Jerusalem in
Jordan's hands.
Credit:
buildersofzion
Armistice agreements were signed
between Israel and the Arab states with which it had been at
war. Armistice lines -- temporary ceasefire lines --
were defined by these agreements. They are often referred to
as the Green Line.
These armistice
demarcation lines did not define a permanent border for
Israel. The agreement between Israel and Jordan includes this
phrase:
"The Armistice Demarcation Lines
defined...in this Agreement are agreed upon by the Parties without
prejudice to future territorial settlements or boundary lines..."
This is exceedingly important
because the PLO/PA claims that this line is Israel's "real" border and the line
to which it must withdraw. This is simply not the
case.
~~~~~~~~~~
Six Day
War
From June 5 to June 10, 1967,
Israel fought a defensive war against Arab forces
from Egypt, Syria and Jordan.
When it was over, Israel had
control of all of Jerusalem, which was united under Israeli sovereignty;
the Golan Heights, to which Israeli civil law was applied; the Sinai, which was
surrendered as part of the 1979 peace treaty with Egypt; Gaza, which was
surrendered in the 2005 disengagement; and Judea and Samaria.
~~~~~~~~~~
242
In November 1967, the Security
Council adopted Resolution 242, which addressed the situation.
This resolution did
not require Israel to withdraw to the Green Line.
Instead it acknowledged the
right of every state in the area "to live in peace within secure and recognized
boundaries free from threats or acts of force."
Implicit here was the
understanding that the Green Line did not represent a secure
boundary. Israel suffered from a lack of strategic depth within the Green
Line -- at its narrowest only nine miles wide -- which invited attack
and made defense in war time difficult. (This is why Israeli statesman Abba
Eban referred to the Green Line as the "Auschwitz borders.")
Thus this resolution called for
Israel to withdraw from "territories occupied in the recent
conflict." "Territories,"
not "the territories" or "all
territories," meaning, withdrawal from some but not all of the area of
Judea and Samaria. There is a legal history of long debate over
this wording, because of its significance. Not full withdrawal
because that would not leave Israel with a secure boundary.
Once again, then, we see that
the claim of the PLO/PA that Israel "must" withdraw to the Green Line is
not supported by the facts.
Lastly, the resolution called for
"a peaceful and accepted settlement in accordance with the provisions and
principles in this resolution." That is, it called for
negotiations to determine the final border of Israel.
There was no requirement
that Israel withdraw prior to negotiations. And those negotiations have never
been held. At the time of this resolution, it was assumed that
negotiations would be with Jordan. Today the situation has
changed.
For a more detailed explanation
and text of the resolution:
~~~~~~~~~~
"Occupation"
There is nothing
in Resolution 242 that forbids construction of settlements in Judea and
Samaria by Israel. As this issue is a critical one now, we need to
look at this a bit closer:
Israel is not an
"occupier" in Judea and Samaria.
The word "occupation" is bandied
about regularly. The PA/PLO have adopted the idea of Israel as
"occupier" as a mantra and much of the world has accepted
it. But the facts tell us something else.
[] Judea and Samaria were (and
still are) unclaimed Mandate land, to which Israel has the strongest
claim.
[] Legally, occupation only occurs
when one nation moves into the land of another. But there was no nation legally
sovereign in Judea and Samaria before 1967 -- Jordan's presence there was not
legal.
[] There are strong legal
precedents for the claim that a war fought defensively permits
retention of the land secured in that war.
Wrote Steven Schwiebel, former
judge of the International Court of Justice:
"...the Israeli conquest of Arab
and Arab-held territory was defensive rather than aggressive
conquest.
"...it
follows that modifications of the 1949 armistice lines.. are
lawful...whether those modifications are, in Secretary Rogers's words,
'insubstantial alterations required for mutual security' or more substantial
alterations - such as recognition of Israeli sovereignty over the whole
of Jerusalem." (Emphasis added)
[] With all of the above, it
should not be forgotten that areas over the Green Line, in eastern Jerusalem and
Judea and Samaria, represent the very heart of Jewish
heritage: From the Temple Mount; to Hevron and the Cave of
Machpelah, where the matriarch and patriarchs are buried; to Shilo, where
the Tabernacle was brought. How can Jews be "occupiers" in their own
ancient land?
~~~~~~~~~~
International
Law
People have the impression that
"international law" is a firmly defined body of law. In point of fact,
while some international law is established in formal documents,
others aspects are very fluid. Just as is the case with "occupation,"
there is a tendency to politicize this term, so that Israel is forever accused
of "violating international law." Be most cautious when hearing
this.
There are, as well, instances in
which "international law" is interpreted to mean one thing for Israel and
another for other countries.
One fascinating example has to do
with the Fourth Geneva Convention, Article 49(6), which says "the Occupying
Power shall not deport or transfer parts of its own civilian population into the
territory it occupies." You may have heard accusations that Israel is in
defiance of this Article because of the "settlers."
There are two obvious retorts to
this: First, that Israel is not an occupier, and second, that
Israel is not deporting or transferring parts of its own civilian
population -- the people go of their own volition.
Eugene Kontorovich, however, is
currently doing research for a paper and has discovered something
else: There are many instances of movement of civilian population
into occupied territory. However, while international lawyers claim
that Israel must actively oppose civilian migration, refuse to provide
services to settlers, etc., in these other instances the reaction is much more
tempered. That is, the presumed requirements of "international law" are
applied selectively to Israel.
~~~~~~~~~~~~~~~
RELATED
ISSUES
Oslo
Accords
The Oslo Accords, promoted
originally by Shimon Peres, Yossi Beilin and others, was founded on the
assumption, which proved to be seriously and dangerously erroneous, that peace
might be achieved between Israel and the PLO, considered the official
representative of the Palestinian Arab people. On September 13, 1993, the
Declaration of Principles was signed between Israeli Prime Minister Yitzhak
Rabin and Yasser Arafat, Chairman of the PLO.
The PLO never properly ratified
these Accords, although there was pretense of having done so. Even more
significantly, the PLO was committed to changing clauses in its Charter that
call for Israel's destruction. Again, there was pretense -- a committee to
effect the changes was formed -- but it never happened. The PLO
Charter of 1968, which calls for Israel's destruction, is still in
place.
It says that Palestine as defined
by the Mandate is indivisible and that "armed struggle is the only way
to liberate Palestine."
~~~~~~~~~~
On May 4, 1994, the first
agreement was signed, spelling out a limited pullback of Israeli forces in Gaza
and Jericho, with the PLO moving into those areas. At this time the
Palestinian Authority was founded as an interim administrative authority for a
period of five years.
On September 28, 1995, the Interim
Agreement (called Oslo II) was signed. This called for a more extensive pullback from major Arab
population centers, with the PA assuming responsibility. Three areas were
defined: (A) in which the PA has total control, (B) in which the PA has civil
control and Israel retains responsibility for security, and (C), in which Israel
has total control.
All Jewish settlements in Judea
and Samaria are in Area (C). There is nothing in this Interim
Agreement that prohibits or restricts the establishment or expansion of Jewish
communities in that area.
According to Oslo agreements, so
called "final status issues" must be resolved via
negotiations: Borders of Israel, potential division of Jerusalem,
the nature of the Palestinian Arab entity, etc.
Unilateral actions that achieve a
change in the basic situation are said to be a violation of the Accords, which
require negotiations.
PLEASE NOTE: The
Oslo Accords do not specifically call for the formation of a full Palestinian
State, although that is the working assumption today. The goal, as
stated in the Declaration of Principles is "negotiations...leading to a
permanent settlement based on Security Council resolutions 242..."
(From 1967, discussed above.) These were supposed to be the negotiations
that would finally determine Israel's border to the east. Until his death, PM
Yitzhak Rabin spoke of an autonomy for the Palestinian Arabs that was short of
full statehood. With these negotiations was to come peace.
Declaration of
Principles:
Interim Agreement
~~~~~~~~~~
Taqiyya
Put simply, this is a Muslim
propensity for falsehoods or deception in certain circumstances. This behavior
is not only approved but sometimes mandated by Sharia (Islamic) law if it
benefits Islam or protects Muslims.
The fact that Palestinian Arabs
practice taqiyya -- which Islamic scholar Raymond Ibrihim says is
mainstream in Islam, and...very prevalent in Islamic politics -- makes it
more difficult for Israel to make its case.
Palestinian Arabs, for example,
claim that they are the indigenous population in Palestine, descended from the
Canaanites or other ancient peoples, while the Jews have no history in the land.
The reality is that those who
today call themselves "Palestinians," until a few decades ago identified simply
as part of the Arab nation. In fact, before the founding of the modern
state of Israel, it was the Jews who were referred to as Palestinians, not the
Arabs.
Similarly, Palestinian Arabs say
that the Jews are on "their" land and must give it back.
The reality is that there has
never been a Palestinian state, on this land or anywhere. There is no case
to be made for calling it "their" land.
As well, the Palestinian Arabs say
they want a "two-state solution" and will live in peace next to Israel, if
Israel will only return to it's Green Line "borders."
The reality is that the PLO
(Palestinian Liberation Organization) was founded in 1964,
before Israel had secured Judea, Samaria and Gaza. What
the PLO wanted to "liberate" was Israel inside the Green
Line.
~~~~~~~~~~
©
Arlene Kushner. This material is produced by Arlene Kushner,
functioning as an independent journalist. Permission is granted for it to be
reproduced only
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