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: The Balfour Declaration
~~~~~~~~~~
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." (emphasis added – DAS)
~~~~~~~~~~
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declaration originally made on November 2nd, 1917 [Balfour Declaration],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." (emphasis added – DAS)
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: The Palestine Mandate of The Council of the League of Nations:
~~~~~~~~~~
"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 entire land and specifically in the city of Hebron , murdering 67 Jewish men women and children
(DAS) 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: United Nations General Assembly Resolution 181 November 29, 1947
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 (emphasis DAS).
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: UN Resolution 181 – The Partition Plan November 29, 1947
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 (and annihilating all the Jews- DAS) 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 are temporary ceasefire lines (DAS), 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..."
"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.
Details here: The Six-Day War (June 5 - 10, 1967)
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 because there was no Palestinian nation ever mentioned, as it had never existed (DAS). Today the situation has changed.
For a more detailed explanation and text of the resolution: UN Security Council Resolution 242 Adopted: November 22, 1967
~~~~~~~~~~
"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/propaganda and much of the
world has accepted it. They continuously emphasize “victimhood” as a
ploy. 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.
See: Definition of Belligerent/Millitary Occupation
See: Definition of Belligerent/Millitary Occupation
· 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)
Read: Selected Writings of Stephen M. Schwebel, Judge of International Court of Justice
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)
Read: Selected Writings of Stephen M. Schwebel, Judge of International Court of Justice
· 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 (and was Israel’s temporary capital – DAS). 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,
tragically (thousands of Israeli lives lost due to the attempt at an accord - DAS)
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."
Read: The PLO Charter
~~~~~~~~~~
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, (DAS)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 publically reaffirming the idea
of an autonomy for the Palestinian Arabs that was short of full
statehood. With these negotiations was to come peace.
~~~~~~~~~~
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 with proper attribution.
If it is reproduced and emphasis is added, the fact that it has been added must be noted.
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