Friday, February 17, 2012

Israel’s Legal Claim to the land of Israel


Israel’s Legal Claim to the land of Israel

Prof. Paul Eidelberg
Have you ever wondered why Israeli prime ministers refrain from asserting Israel’s right to Judea, Samaria, and Gaza on the basis of international law? Are Israeli prime ministers, today Binyamin Netanyahu, suffering from the Oslo surrender syndrome? Are they overwhelmed by the enormity of Islam and afraid of adverse world opinion? Do they simply lack the stamina and intellectual capacity to uphold Israel’s legal right to Eretz Israel? Is there a profound deficiency in Israeli higher education, one that emasculates the graduates of Israeli universities, universities that fail produce proud and competent statesman? If so, what should be done to correct the failure of Israeli education? Today I will focus on Israel’s legal claim to Eretz Israel.
Even if decisions of the International Court of Justice were to reject Israel’s claim to the Land of Israel, Israel’s prime minister could insist that Israel is a sovereign state which will not subordinate itself to any foreign court. Israel’s prime minister could also cast doubt on the impartiality of the International Court of Justice by citing contradictory rulings of previous courts and by citing eminent jurists and professors of international law that support Israel’s claim to the land in question. Besides, by making a legal case for Israel, its prime minister would educate public opinion and enlarge the size of the public that identifies with Israel.
Perhaps the most comprehensive and authoritative account of the Jewish people’s legal claim to all the Land of Israel will be found in the magnum opus of Canadian attorney, Howard Grief, The Legal Foundation and Borders of Israel Under International Law published last year by Mazo Publishers. This monumental work substantiates and provides a detailed elaboration of the historical facts I will now set forth is summary form.
In 1920, after World War I had ended, the Allied Supreme Council assembled at San Remo, Italy and decided, in accordance twih the Balfour Declaration of November 2, 1917, to assign the Mandate for the establishment of a National Home for the Jewish people in Palestine to Great Britain. This turned the right of the Jewish people over Eretz Israel into a right recognized by international law, i.e., recognized by the 52 members of the League of Nations.
The Mandate actually went further than Balfour by acknowledging there had already been a Jewish National Home in Palestine.[i] Article 5 states that the Mandatory shall be responsible for seeing that no Palestine territory shall be ceded to, or in any way placed under the control of, the Government of any foreign Power. Article 6 stipulates: “All necessary measures shall be taken to encourage and stimulate immigration of Jews into Palestine on a large scale, and as quickly as possible to settle Jewish immigrants upon the land through close settlement and intensive cultivation of the soil.”
The internationally renowned jurisprudent Professor Julius Stone writes: “Nothing that Israel’s legal system says can change the facts that: (1) the legal binding document is the Mandate of the League of Nations and (2) the obligations of the Mandate are valid in perpetuity.”[ii] One obvious implication of this statement is that the United Nations, by virtue of its various resolutions condemning Israel for “occupying” Palestinian land and establishing “settlements” therein, stands in violation of international law!
Another implication of Professor Stone’s judgment is that Israel’s own Supreme Court erred in 2004 when it held, contrary to the rulings of its own predecessors, that the right of Jewish settlement in Judea, Samaria, and Gaza lapsed with the founding of the State in 1948! What makes this Jewish self-denial so remarkable is that the right of the Jewish people over Eretz Israel, as stipulated at San Remo, was affirmed by the Anglo-American Convention on Palestine. The treaty was ratified by the United States Senate and subsequently proclaimed by President Calvin Coolidge on December 5, 1925. This treaty remains in force to this day as the supreme law of the land. (The American government’s current advocacy of an Arab state in Eretz Israel is a clear violation of that treaty. Can anyone imagine an Israeli prime minister having the guts to say such a thing—indeed, to putting the President of the United States on the defensive?)
After the Six-Day War, Israel had to decide on how to administer the land it had regained in that war. Dr Yoram Shifftan has said: “Even though Israel had the right, according to international law, to annex and declare sovereignty on any part of Western Palestine, it delayed its annexation to deal with concrete practical problems; it voluntarily decided to apply a complex mix of the rules of belligerent occupation and municipal law. In fact, as long as the territory is not annexed and sovereignty declared, there are no other legal frameworks available.… The de facto adoption of some rules of belligerent occupation to solve local problems by Israel does not imply that the [Jewish] settlers’ rights are governed by the law of belligerent occupation.”
Prior to 2004, the justices of Israel’s Supreme Court and all experts on international law stressed again and again that Jewish National Rights in Western Palestine, in particular the right for dense Jewish settlement in Western Palestine, are based on additional principles of international law. Professor Stone repeatedly points out that the right for dense Jewish settlement in Western Palestine is not dependent on the law of belligerent occupation but on other “formidable bases of title,” i.e., on other principles of international law to which the justices of Israel’s Supreme Court did not have to refer to when ruling on requisitions of land for military or other purposes. These justices carefully reserved their ruling so as not to imply that these other bases do not exist.
The other bases of Israel’s territorial entitlement, and the principles of international law include: (1) The rule that would attribute sovereign title in Judea and Samaria (the West Bank) and Gaza to Israel, by virtue of the fact that Israel is the state in lawful possession of territory affected by a “sovereignty vacuum”; (2) The rule that in a situation of disputed sovereignty, that state is entitled that can establish the best title thereto, a rule well recognized by the International Court of Justice; (3) The rule that a state in lawful possession of territory to which no other sovereign has supportable claim of sovereignty is entitled to take the step of formal annexation; (4) The rule laid down by the International Court of Justice, that territories subject to a League of Nations Mandate, whose disposition has not been otherwise determined, remain subject to the obligations of the Mandate—here the Mandate for Palestine—whose primary obligation was the establishment of a Jewish national home.
As for the Fourth Geneva Convention, specifically Article 49(6), Professor Stone demolishes the applicability of that Article to Jewish settlement in Judea, Samaria, and Gaza: “On that issue, the terms of Article 49(6), however they are interpreted, are … totally irrelevant. To render them relevant, we would have to say that the effect of Article 49(6) is to impose an obligation on the State of Israel to ensure (by force if necessary) that these areas, despite their millennial association with Jewish life, shall be forever judenrein. Irony would thus be pushed to the absurdity of claiming that Article 49(6), designed to prevent repetition of Nazi-type genocidal policies of rendering Nazi metropolitan territories judenrein, has now come to mean that Judea and Samaria (the West Bank) must be made judenrein and must be so maintained, if necessary by the use of force by the government of Israel against its own inhabitants.”
By the way, it follows from the legal arguments I have cited that UN Resolutions supportive of the Palestinians and antagonistic toward Israel have no solid basis in international law! The Jewish people are again being robbed of their homeland, and this time with the collaboration of Prime Minister Binyamin Netanyahu who has endorsed the creation of a Palestinian state in Judea and Samaria. Is it not strange that no Israeli prime minister has attempted to make a serious public defense of Israel’s right to Eretz Israel on grounds of international law, let alone on Biblical grounds?
[ii] Julius Stone, Israel and Palestine (John Hopkins University Press, 1981).
________________________________
*Edited transcript of the Eidelberg Report, Israel National Radio, November 23, 2009.

http://haresha.org/en/?p=75

No comments:

Post a Comment