No Occupied Territories

by Eli E. Hertz

A UN coalition sought to rewrite history by labeling the Territories 'Occupied Territories,' thus endowing them with an aura of bogus statehood and a false history. They used capital letters for 'Occupied Territories' and then shifted to 'Palestinian Occupied Territories' and 'Palestine,' as if title or ownership could be assigned out of thin air.

No legal binding authority has empowered any UN organ, including the International Court of Justice (ICJ), to decide that the territories of the West Bank, known as Judea and Samaria, and Gaza could be transformed into 'Occupied Palestinian Territories' or 'Palestine.' UN organs' the EU and the U.S. use of these dishonest, loaded terms empower terrorism and the Palestinian Arabs with the right to use all measures to expel Israel . The phrase 'illegal occupation' is a "careless language" and "perilous threat to the diplomatic search for peace," says Professor George Fletcher, an expert in international law: [1]

"The International Court of Justice (ICJ) has been insistent, not least as regards questions of territorial title, that the rules and concepts of interna­tional law have to be interpreted 'by reference to the law in force' and 'the State practice' at the relevant period." [2]

General Assembly's attempts to legislate changes in the status of the territories against Israel and the rule of international law

One can easily trace the General Assembly's attempts to legislate changes in the status of the Territories, doctoring the definition of the status of the Territories, which is well documented on the website of the Palestinian delegation to the United Nations that posts landmark pro-Palestinian decisions. Examination reveals how over the years in UN General Assembly resolutions and the wording of resolutions by sub-committees moves from "territories" to "occupied territories" to "Occupied Territories" and "Arab territories" to "occupied Palestinian territories" to "Occupied Palestinian Territory" and "occupied Palestinian territory, including Jerusalem":

• Resolution 3236 (XXIX) passed in November 1974 speaks of "the question of Palestine";
• Resolution 38/58 in December 1983 speaks of "Arab territories" and "occupied territories";
• Resolution 43/176 passed in December 1988 expresses sentiments suggesting Palestinian entitlement - speaking of "the Palestinian people['s] right to exercise their sovereignty over their territory occupied since 1967";
• Resolution 51/133 passed in December 1996 adds Jerusalem in particular - speaking of "occupied Palestinian territory, including Jerusalem, and the occupied Syrian Golan...";
• Resolution 52/250 passed in July 1998 fully "assigns title" - speaking of "Occupied Palestinian Territory," a designation that is frequently used in subsequent resolutions.

None of these terms have a legal foundation any more than declaring "The world is flat" makes it so. Yet the International Court of Justice cites these terms as if they were legal documents. Even junior jurists know better.

It should be noted: The coining of the term "Occupied Palestinian Territory" by the General Assembly, and all the more so it's 'adoption' by the International Court of Justice, is contrary to, and totally incompatible with, Article 12 of the UN Charter which states:

"While the Security Council is exercising in respect of any dispute or situation the functions assigned to it in the present Charter, the General Assembly shall not make any recommendation with regard to that dispute or situation unless the Security Council so requests." (emphasis added)

The artificiality of the historical Palestinian identity

The use of the word 'Palestine' was adopted by the Arabs specifically for political gain, to brand Israelis as invaders and to inherit the geographic area called Palestine as exclusively belonging to the Arabs.

The artificiality of a Palestinian identity is reflected in the attitudes and actions of neighboring Arabs who never established a Palestinian state or advocated one prior to the Six-Day War in 1967. What unites Palestinians has been their opposition to Jewish nationalism and the desire to stamp it out, not aspirations for their own state. Local patriotic feelings are generated only when a non-Islamic entity takes charge - such as Israel did in 1967 after the Six-Day War. It dissipates under Arab rule no matter how distant or despotic, as it was under the rule of Jordan prior to 1967.

Culturally, Palestinians are not distinct from other Arabs. The sole contributions Palestinians can take credit for are the invention of skyjacking for political purposes in the 1960s, and lately a special brand of suicidal terrorism that uses their own youth as delivery systems for bombing pizza parlors, discos, and public commuter buses.

Ironically, before local Jews began calling themselves Israelis in 1948 (the name Israel was chosen for the newly established Jewish state), the term 'Palestine' applied almost exclusively to Jews and the institutions founded by new Jewish immigrants in the first half of the 20^th century, before independence. Some examples include:

• The Jerusalem Post, founded in 1932, was called the Palestine Post until 1948. [3]
• Bank Leumi L'Israel was called the "Anglo-Palestine Bank, a Jewish Company."
• The Jewish Agency - an arm of the Zionist movement engaged in Jewish settlement since 1929 - was called the Jewish Agency for Palestine.
• The house organ of American Zionism in the 1930s was called New Palestine.
• Today's Israel Philharmonic Orchestra, founded in 1936 by German Jewish refugees who fled Nazi Germany, was called the Palestine Symphony Orchestra, composed of some 70 Palestinian Jews. [4]
• The United Jewish Appeal (UJA) was established in 1939 as a merger of the United Palestine Appeal and the fundraising arm of the Joint Distribution Committee.

Princeton University professor of Semitic literature Philip Hitti (1886-1978) one of the greatest Arabic historians of the ninth century and author of 'The History of the Arabs,' testifying on behalf of the Arab cause, told the Anglo-American Committee of Inquiry on Palestine in 1946: "There is no 'Palestine ' in history, absolutely not." [5]

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[1] George P. Fletcher is a professor at Columbia University School of Law and author of Romantics at War:
Glory and Guilt in the Age of Terrorism. See: "Annan's Careless Language," The New York Times, March 21, 2002, at:
www.uscj.org/neweng/worcester/Link_Fletcher020321.htm.

[2] See Professor Stone " Israel and Palestine", Johns Hopkins University Press, Baltimore and London, 1982, p. 75.

The International Court of Justice (I.C.J.) has been insistent, not least as regards questions of territorial title, that the rules and concepts of interna­tional law have to be interpreted "by reference to the law in force" and "the State practice" at the relevant period. (Majority Opinion in the Western Sahara case, I.C.J. Reports, 1975, p. 12, esp. at 38-39). Judge de Castro in his Separate Opinion (ibid 127, at 168 ff.) declared the principle tempus regit factum as a recognized principle of international law. He continued (p. 169): "Consequently, the creation of ties with or titles to a territory must be determined according to the law in force at the time ... The rule tempus regit factum must also be applied to ascertain the legal force of new facts and their impact on the existing situation." He went on to illustrate this influence of "new facts and new law" by reference to the impact on the suppression of the colonial status of Western Sahara by the principles concerning non-self-governing territories emanating from the United Na­tions Charter and the later application to them of the principle of Self de­termination (pp. 169-71). This limiting rider has reference to the appearance of new principles of international law, overriding the different principles on which earlier titles are based. But, of course, it can have no application to vested titles based, as was the very territorial allocation between the Jewish and Arab peoples, on the principle of self-determination itself.

[3] The Palestine Post was founded by Gershon Agron, an American journalist and published its first issue on December 1, 1932. In 1950, the Palestine Post changed its name to The Jerusalem Post.

[4] Ibid.

[5] From the report by The High Commissioner on The Administration of Palestine 1920-1925 to the Right Honorable L. S. Amery, M.P., Secretary of State for the Colonies. Government Offices, Jerusalem, 22nd April, 1925.

Eli E. Hertz

Copyright - Original materials copyright (c) by the authors.