This paper discusses the establishment of
Nonetheless, under public international law,
1. The Establishment of
"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
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
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
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
It was in acknowledgement of the special ties of the Jewish people to their homeland that the international community recognized
2. Sovereignty Over Eretz
The Arab nation has accomplished self-determination and is represented by 21 States, controlling 99.9% of the
In 1920, the San Remo Conference of the Allied Powers assigned to
· Article 2 of the Mandate made
· Article 6 required
· Article 11 required
· Article 7 made
· Shortly prior to its ratification, Article 25 was added, empowering
The Palestine Mandate does not mention Arab national or political rights in the
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
2.2 The UN Partition Resolution
The UN Partition Resolution of November 29, 1947 (General Assembly Resolution 181 (II)) regarding the partition of
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
The 1949 Armistice Agreements signed between
No sooner had the ink dried on the Armistice Agreements than
2.4 Security Council Resolutions 242 and 338
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 force."
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 East."
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
According to the peace treaty with
2.6 The Status of Yesha in Public International Law
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,
In 1988, King Hussein declared that
In 1993, the PLO signed the Declaration of Principles which states that Resolutions 242 and 338 should provide the basis for negotiations with
Resolutions 242 and 338 do not mandate the establishment of a separate Arab state in Judea,
3. The Jewish Settlements in Yesha Under Public International Law
3.1 The Rules of Public International Law Regarding "Occupied Territories"
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
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.19
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
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
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,
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
Before 1967, Palestinians living in the West Bank and in
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
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 civilians.
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 hostilities."
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
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.
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 basis.
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,
7. The Preconditions for a Peaceful Solution
The above legal arguments notwithstanding, the Jewish population of
But whereas in
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.
Under public international law,
I confirmed this story with Mr. Abba Eban – T.E.
On the historical development of the term "
See, e.g., the account of the riots written in April 1920, by Robert Meinertzhagen,
Ya'akov Shavit and Gideon Biger, "The British Mandate over
Ibid., pp. 92-93.
P. Malanczuk, "
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 Conflict (Princeton, N.J.: Princeton University Press 1977) 535, 544-545.
Eugene V. Rostow, "The Illegality of the Arab Attack on
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 oritur; the illegal attack by
Yehuda Zvi Blum, "The Missing Reversioner: Reflections on the Status of Judea and
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
Yoram Dinstein, The Laws of War (Tel-Aviv: Schocken/ Tel-Aviv University 1983) (in Hebrew) 225-226.
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
Al-Nazar v. Commander of Judea and
Beit El case, supra n. 14, p. 123.
Ibid., pp. 129-130.
Dwaikat 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
Regarding the meaning of "State lands" in this context, see the Order concerning Government Property (the Area of Judea and
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 Documents (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 <http://www.edume.org/>.
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: <http://www.house.gov/jec/hearings/israel/einhorn.htm>.
Ronen Bergman, Authority Given (Yediot Aharonot 2002) (in Hebrew).
Cf. Talia Einhorn, "
Alan Dershowitz, "
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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