Why Israel is entitled in law to the "West Bank"
My discussion on Times Radio
I took part in Times Radio’s breakfast show to discuss that day’s news with my fellow columnist Hugo Rifkind and presenters Aasmah Mir and Stig Abell. When we started discussing the anti-Israel demonstrations that have been taking place in Britain for weeks, the discussion took a somewhat lively turn. You can listen to it by clicking the arrow below.
A number of people were astonished to hear me state in this discussion that Israel is not in “occupation” of “Palestinian land” and that the Jews alone are entitled in law to this territory.
Their astonishment wasn’t surprising, since these facts are never referred to in mainstream discourse.
Yet Israel is entitled to this land — all of it — many times over in law, as well as according to history, truth and morality.
There has never been any such thing in law as Palestinian land. There never was a state of Palestine. When the Romans conquered the Jewish kingdom of Judea, destroyed the Jewish Temple and drove the Jews of Judea into exile, they renamed it Palaestina in an attempt to erase its Jewish identity. When the last colonial occupier of the land, the Ottoman empire, fell after the First World War, the international community that carved up the Middle East to create a number of new states kept the name Palestine to describe the territory which was now to be recreated as the homeland of the Jewish people.
This was cemented at the 1920 San Remo Conference and given the force of international treaty law by the League of Nations — the precursor to the UN — in the 1922 Mandate for Palestine. This made the UK the mandatory power and gave it the duty to settle the Jews throughout Palestine. After Britain sliced some 70 per cent off this land to create (Trans) Jordan in an act of arbitrary realpolitik, Palestine consisted of what is now Israel, the “West Bank” and Gaza.
To make this quite clear: only the Jews were given the legal right to settle the land in what is now Israel, the “West Bank” and Gaza.
That right has never been abrogated. The 1922 League of Nations Mandate was ratified by the UN Charter 1945, which pledged to uphold the agreements entered into by its predecessor.
The legally binding principles entitling the Jewish people to settle all this land were subsequently further codified in the Vienna Convention of 1969, which confirmed that it included Judea and Samaria (the “West Bank”) and Gaza. In 2013, furthermore, French judges in the Court Of Appeal of Versailles ruled that “Israel is the Legal Occupant of the West Bank”.
When Jordan seized almost all of Judea and Samaria during the 1948-1949 war, renaming these territories “the West Bank” in 1950, that did not extinguish Israel’s claim to that territory. From 1949 to 1967, Jordan held the “West Bank” as a military occupier. When Israel took possession of that territory after the 1967 Six-Day War, this did not, as so many believe, create its claim to it. Israel’s victory freed it instead from illegal Jordanian occupation, and allowed the legal claim of the Jewish people to that territory finally to be acted upon.
At the time that the Mandate was issued to the British, Palestine was only sparsely occupied. While some Jews had always remained in the land — particularly in Safed, and in Jerusalem where they were in the majority from the mid-19th century onwards — the majority of those occupants were Arabs; but they considered themselves part of the Arab people, or sometimes as southern Syrians. As the Jews returned to the land, Arabs attracted by the prospect of growing prosperity poured in from neighbouring states. But they were always referred to, and considered themselves to be, Arabs. Between 1922 and 1948, when people referred to the Palestinians they were referring to the Jews.
So the first reason why the term “occupied Palestinian territories” is a nonsense is that the areas in question were never Palestinian land but were always legally designated for Jews alone to be entitled to settle. The second reason is that the legal definition of “occupation” applies only where a sovereign state has been occupied. The disputed territories of Judea and Samaria were never part of a sovereign state.
Eli Hertz, author of Myths and Facts, has written:
The law relating to “occupation” is contained in the Fourth Geneva Convention. Professor Julius Stone, a leading authority on the Law of Nations, categorically rejected the use of the term “occupied territory” to describe the territories controlled by Israel on the following counts:
(1) Article 49 relates to the invasion of sovereign states and is inapplicable because the West Bank did not and does not belong to any other state.
(2) The drafting history of Article 49 [Protection of Civilian Persons in Time of War] - that is, preventing “genocidal objectives|” must be taken into account. Those conditions do not exist in Israel’s case.
(3) Settlement of Jews in the West Bank is voluntary and does not displace local inhabitants. Moreover, Stone asserted: that “no serious dilution (much less extinction) of native populations” [exists]; rather “a dramatic improvement in the economic situation of the [local Palestinian] inhabitants since 1967 [has occurred]”.
The Fourth Geneva Convention states that a country may not “deport or transfer parts of its own civilian population into the territory it occupies”. But this provision was designed to prevent the forced transfer of people. The Israeli residents of the disputed territories have not been deported nor transferred. They have chosen to live there freely and of their own accord.
Professor Eugene Rostow, past Dean of Yale Law School, a former US Under-Secretary of State for Political Affairs and a key draftee of UN Security Council Resolution 242 which dealt with the disposition of territories that Israel won in the Six-Day War, concluded that the Fourth Geneva Convention was not applicable to Israel’s legal position. He noted:
The opposition to Jewish settlements in the West Bank also relied on a legal argument — that such settlements violated the Fourth Geneva Convention forbidding the occupying power from transferring its own citizens into the occupied territories. How that Convention could apply to Jews who already had a legal right, protected by Article 80 of the United Nations Charter, to live in the West Bank, East Jerusalem, and the Gaza Strip, was never explained.
And here is Howard Grief, author of the definitive book “The Legal Foundation and Borders of Israel Under International Law: A Treatise on Jewish Sovereignty Over the Land of Israel”:
Israel, which inherited the sovereign rights of the Jewish people over Palestine, has the legal right to keep all the lands it liberated in the Six Day War that were either included in the Jewish National Home during the time of the Mandate or formed integral parts of the Land of Israel that were illegally detached from the Jewish National Home when the boundaries of Palestine were fixed in 1920 and 1923. For the same reason, Israel cannot be accused by anyone of “occupying” lands under international law that were clearly part of the Jewish National Home or the Land of Israel.
Thus the whole debate today that centres on the question of whether Israel must return “occupied territories” to their alleged Arab owners in order to obtain peace is one of the greatest falsehoods of international law and diplomacy.
An additional argument has been advanced by the international law professor Eugene Kontorovich. He has written:
Moreover one cannot occupy one’s own territory. If Ukraine retakes Crimea from Russia, it will not be an occupation just because it had long been administered by Moscow. As professor Avi Bell and I have demonstrated at great length, under general rules of international law applicable around the world Israel would have a sovereign claim to the West Bank from 1948 (not so for the Golan Heights). That is because newly created states inherit the borders of the prior administrative units in the territory — in this case, Mandatory Palestine.
As for the claim that the Israeli “settlements” in these territories are illegal, Kontorovich wrote:
Discussions of illegal settlements, and Art. 49(6) of the Fourth Geneva Convention, invariably arise only in the context of Israel alone. Indeed, the term “illegal settlements” has become a way of discussing Jewish communities in places the international community thinks they should not be. Prior to 1967, the rule now directed against Israel had never been applied anywhere. Despite the ongoing US occupation of West Berlin, no one ever suggested Americans must be barred from moving there, or that the occupation required doing something impossible — halting natural patterns of migration and preserving demography in amber for decades…
When we look for the alleged rule applied elsewhere, we find — nothing. The United Nations has referred to Art. 49(6) hundreds of times in relation to Israel, but no UN body has ever accused any other country of violating it.
This is not because of a shortage of cases in which one might think it would apply. From Morocco in Western Sahara to Indonesia in East Timor, from Turkish-occupied northern Iraq to formerly Vietnamese-occupied Cambodia, prolonged occupations of territory have almost always seen migration from the territory of the occupying power. The demographic impact typically dwarfs that of Jewish settlers in the West Bank, as in Western Sahara or Northern Cyprus, where settlers constitute a majority of the population. As many Russians have moved to Crimea in the past decade as Jews to Judea in the past half-century. Unlike the case of Judea and Samaria, all these cases (except Western Sahara) involve the unambiguous occupation of the territory of a preexisting state. Yet even in those situations where the ICC has jurisdiction, it has specifically declined to find that such movement constitutes a war crime.
Then there’s the legal justification for Israel’s presence in these territories through the law of self-defence. UN Resolution 242, which was adopted unanimously by the General Assembly on November 22, 1967, said that Israel had a right to hold onto territories that it required if it was to have, as the key phrase in the resolution put it, “secure [i.e. defensible] and recognised boundaries”. In other words, Israel is entitled to retain territory seized in a war of self-defence while the people there remain belligerent. Which they most certainly do.
Eli Hertz author of Myths and Facts, wrote here:
International law makes it clear: all of Israel’s wars with its Arab neighbours were in self-defence. Professor Judge Schwebel wrote in What Weight to Conquest:
“(a) a state [Israel] acting in lawful exercise of its right of self-defence may seize and occupy foreign territory as long as such seizure and occupation are necessary to its self-defence;
“(b) as a condition of its withdrawal from such territory, that State may require the institution of security measures reasonably designed to ensure that that territory shall not again be used to mount a threat or use of force against it of such a nature as to justify exercise of self-defence;
“(c) Where the prior holder of territory had seized that territory unlawfully, the state which subsequently takes that territory in the lawful exercise of self-defence has, against that prior holder, better title.
“As between Israel, acting defensively in 1948 and 1967, on the one hand, and her Arab neighbours, acting aggressively, in 1948 and 1967, on the other, Israel has the better title in the territory of what was Palestine, including the whole of Jerusalem, than do Jordan and Egypt.”
Professor Schwebel explains that the principle of “acquisition of territory by war is inadmissible” must be read together with other principles:
“Namely, that no legal right shall spring from a wrong, and the Charter principle that the Members of the United Nations shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State.”
Simply stated: Arab illegal aggression against the territorial integrity and political independence of Israel cannot and should not be rewarded. Professor Julius Stone, a leading authority on the Law of Nations, stated:
“Territorial Rights under International Law. ... By their [Arab countries] armed attacks against the State of Israel in 1948, 1967, and 1973, and by various acts of belligerency throughout this period, these Arab states flouted their basic obligations as United Nations members to refrain from threat or use of force against Israel’s territorial integrity and political independence. These acts were in flagrant violation inter alia of Article 2(4) and paragraphs (1), (2), and (3) of the same article.”
Thus, under international law Israel acted lawfully by exercising its right to self-defence when it redeemed and legally reoccupied Judea and Samaria, known also as the West Bank.
People claim that, because various bodies such as the International Court of Justice or the International Criminal Court have stated that Israel is in illegal occupation, it must be so. But just because such bodies assert such a thing doesn’t make it true. Such bodies do not make international law. That inheres in international treaties and agreements. And those don’t support the tendentious claims made by such bodies, which owe nothing to legal authority and everything to their profound and enduring institutional hatred of the State of Israel.
Israel is not in “illegal occupation of the Palestinian territories”. Every part of that phrase, apart from “of” and “the”, is legally illiterate. The Jews are the only people entitled in law to those territories. Get over it.
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