Who has the legal right to Judea and Samaria?

By David Storobin, Esq.

Despite the common misconception among journalists covering the Arab-Israeli conflict, God did not create the world during the six days of the 1967 war, and starting that late in history distorts one’s understanding of the Middle East conflict. In determining what is the law governing Judea and Samaria, also known as the West Bank, let’s start from the beginning.

Subsequent to the Romans expelling the Jews as a result of a rebellion, they gave Judea a new name, Palestine, after the ancient Greek people who were previously repeatedly battled the Hebrews but no longer existed as an independent nation by the time of Roman conquest. The re-naming of Judea was meant as a historical stab at the Jews and certainly did not mean that there were any Palestinian people. In ancient times, there was no significant Arab population in either of the two Jewish states, Judea and Israel.

Over the next 1,900 years, only colonial powers controlled Palestine and no Palestinian nation ever came into existence. As time went on, small pockets of Arabs moved into the area, but at the start of the 19th century, the population west of Jordan stood at less than 1% of its current levels, skyrocketing as a result of both Jewish and Arab immigration beginning late in the 19th century. One of these Arab immigrants was the Egyptian-born Yasser Arafat.

Hajj Amin al-Husseini giving a Nazi salutes to Muslim SS volunteers in 1943.

LEAGUE OF NATIONS MANDATE

At the end of World War I, imperial powers agreed to surrender their colonies in a process governed by the League of Nations. The 1922 League of Nations Mandate for Palestine declared that “the Mandate had as a primary objective the implementation of the ‘Balfour Declaration’ issued by the British Government in 1917, expressing support for ‘the establishment in Palestine of a national home for the Jewish people’.”

It called for the “establishment in Palestine of a national home for the Jewish people,” recognized the “historical connection of the Jewish people with Palestine” and entrusted Great Britain with establishing a “Zionist organization” that shall be recognized as a “public body for the purpose of advising and co-operating with the Administration of Palestine in such economic, social and other matters as may affect the establishment of the Jewish national home . . . .”

Shortly after the Mandate was issued, an Arab Nazi sympathizer named Hajj Amin al-Husseini, a relative and mentor of the then-young Yasser Arafat, became the Mufti of Jerusalem and used this position to establish himself as a leader of the local Arabs. Even before the Third Reich decided to engage in the Final Solution, al-Husseini repeatedly urged Adolf Hitler to murder the Jews. Later, after visiting Auschwitz, al-Husseini complained to German authorities that Jews are not being murdered quickly enough. He even drew up plans for the extermination of all the Jews in the Middle East in the expectation that the German forces would defeat the British. He was also responsible for recruiting and organizing European Muslims who were sympathetic to the Nazis, resulting in two Nazi SS divisions, the 13th “Hanjar” division and the 21st “Skandenber” division, as well as several other units that fought for Germany.

It was this man who set about to create a previously non-existent Palestinian national identity. In 1936, he organized a three year assault on the Jews of Palestine. In 1941, he left Palestine to organize a pro-Hitler revolution in Iraq, murdering most of the Iraqi royal family in the process. After spending the rest of the war years in Germany, he was arrested for war crimes, but escaped imprisonment and returned to the Middle East.

At the same time that al-Husseini was inciting Palestinian Arabs; the British violated the Mandate and put an end to legal Jewish immigration to Palestine, even for Holocaust refugees trying to escape Nazi Germany. This was in direct violation of Article 6 of the Mandate that ordered Britain to “facilitate Jewish immigration” and “close settlement by Jews on the land.”

To try to win favor with the Arabs, the British and various international commissions issued plans to divide Palestine. This, too, was in violation of the Mandate, which clearly stated that “no Palestine territory shall be ceded.” The mandate was very clear in stating that all the territory west of Jordan, which includes the West Bank, shall be part of the Jewish National Home.

Jews being expelled by the Arabs from East Jerusalem in 1948.

UNITED NATIONS RESOLUTIONS

United Nations General Assembly resolution 181 is often cited as a legal basis for the creation of the Jewish state. Yet, the partition plan was nothing more than a recommendation. In fact, the U.N. General Assembly has no right to pass any legally binding resolutions. All General Assembly resolutions are mere recommendations that cannot be enforced.

Because Great Britain agreed to withdraw from Palestine subsequent to this resolution, Zionist leaders had the operational ability to declare independence. However, their right to sovereignty in Palestine is not based on an unbinding recommendation by the General Assembly, but rather on the 1922 League of Nations Mandate. Long before May 1948, Zionists were being admitted into international institutions.

In 1929, their soccer team joined FIFA, the world federation of soccer, and played in many multiple officially recognized games long before 1948. In 1933, they were allowed to participate in Olympic events, though Zionists didn’t participate until after WWII because they, for obvious reasons, chose to boycott the 1936 Games that were held in Nazi Germany, and then the 1940 and 1944 Olympic Games were canceled due to World War II.

The myth that Jews were handed a country after the Holocaust because the world felt bad for them is false. Israel’s right to independence most certainly is not based on the partition plan, if for no other reason than because the General Assembly cannot pass any binding law.

The U.N. Security Council does have the power to pass binding law in some circumstances, but it too has no right to divide the territory that the Mandate specifically said should not be divided. The Security Council cannot pass a law taking away territory from Israel anymore than it can pass a law taking away territory from Sweden or Brazil.

Thus, when the Security Council passed resolution 242 on November 22, 1967, it was passed under Chapter 6, which means the resolution was explicitly non-binding. Only Chapter 7 resolutions are binding law, and no such resolution was ever passed during this or any other session that dealt with any territory mandated to the Jews by the League of Nations. The League of Nations mandate remains the only binding international law governing this land.

Resolution 242 and the 1973 resolution 338 which affirmed the original resolution is worth examining, however, because it is often cited as the basis for Arab-Israeli peace negotiations.

The most hotly debated point prior to the passage of resolution 242 was obviously withdrawal from territories Israel took over in June 1967. This withdrawal was not to be unilateral, but was linked to the “termination of all claims or states of belligerency” and the recognition that “every State in the area.”

More importantly, the Security Council specifically rejected the words “withdrawal from all the territories” as well as “withdrawal from all territories” and even “withdrawal from the territories.” The remaining language was “withdrawal from territories” and was seen by all sides to mean that Israel need not withdraw from all the real estate it took over.

Lord Caradon, the British U.N. ambassador in 1967 who actually drafted resolution 242, said: “It would have been wrong to demand that Israel return to its positions of June 4, 1967, because those positions were undesirable and artificial.”

Similarly, the U.S. Ambassador to the United Nations (and the former U.S. Supreme Court Justice) Arthur Goldberg explained: “The notable omissions which were not accidental in regard to withdrawal are the words ‘the’ or ‘all’ and ‘the June 5, 1967 lines’ . . . the resolution speaks of withdrawal from occupied territories without defining the extent of withdrawal.”  The Ambassador added that Israel’s return of all territories is “incompatible” with resolution 242.

Israeli soldiers reach the holy Wailing Wall during the 1967 war.

Rather than calling for Israel to withdraw from all the territories it acquire in 1967, the resolution calls for Israel to withdraw to “secure” borders which the American ambassador explained to mean “territorial adjustments in their peace settlement encompassing less than a complete withdrawal of Israeli forces from occupied territories, inasmuch as Israel’s prior frontiers had proved to be notably insecure.”

The Soviet UN Ambassador Vasily Kuznetsov agreed that the adoption of Resolution 242 meant that “Israel [had] the right to establish new boundaries and to withdraw its troops only as far as the lines which it judges convenient.”

It is for this reason that immediately prior to the passage of resolution 242, Arab representatives declared that Palestinian Arabs would lose all rights to independence if this language of the resolution was passed.

When Israel later signed the Camp David Peace Accords returning the Sinai Peninsula to Egypt, it gave back all the territory that was not given to it by the League of Nations Mandate. No further demands can be made upon Israel under international law and, in fact, no further demands were made by resolution 242.

Thus, we see that the law is very clear, but unfortunately, the Palestinian PR machine was able to suppress these facts, which are not in dispute regardless of the position one may take on whether or not Israel should withdraw from the West Bank. Whatever the government in Jerusalem choose to do, it is important to remember that all the land west of Jordan is Israeli land under international law and Jews are not occupiers, nor illegal settlers.

If Israel chooses to build communities in the West Bank, it will merely be fulfilling the only binding international law that was ever passed that deals with this piece of real estate, and this law calls for facilitating “settlement by Jews on the land.”

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