5. Israel's Legal Right to Samaria
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"The argument that the Jews have no legal right to settle in Samaria and Judea undermine their right to sovereignty in pre-1967 Israel, for all such rights flow from the same source --
the Palestine Mandate recognizing the Jewish people's historical connection with Palestine."
-- Prof. Eugene Rostow, Israel's Legitimacy in Law and History, Douglass J. Feith and Edward M. Siegel, ed., N.Y., 1993
A cold, hard look at the law reveals an undeniable if inconvenient (for some) truth: Israel and the Jewish People have full sovereign rights to Judea and Samaria (the West Bank). A fair and objective analysis of the various post-WWI international declarations, agreements, decisions and treaties regarding the Question of Palestine (not to be confused with today's made-up "Palestine" claimed by the "Palestinians") can only lead to this conclusion.
Perhaps the most significant of these decisions was the San Remo Resolution of 1920, which recognized the exclusive national rights of the Jewish People to the Land of Israel on the strength of their historical connection to the territory then known as Palestine (Eretz Yisrael). The outcome of this resolution was the 1922 Mandate for Palestine, an historical League of Nations document that formally established the legal right for Jews to settle anywhere in western Palestine, between the Jordan River and the Mediterranean Sea. This of course includes all of Judea and Samaria. It is this Mandate for Palestine which was later to become the foundational legal document for today's State of Israel and which grants the legal right for Israeli sovereinty over all of the "West Bank". Moreover, in San Remo, the nations of the world had formally obligated themselves to not only establish a Jewish state in Palestine, the historic and biblical Jewish Homeland, but also to facilitate its development as well (see Article 6 of the still-binding Mandate for Palestine). This plainly means that today's Israeli settlements are in fact 100% legal and that the false accusation of "occupation" is nothing but a politically-motivated obfuscation of the truth. People forget that back then, the concept of a "Palestinian People" was unheard of and "Palestine" referred only to the Levantine cradle of the Nation of Israel and never to an Arab nation or state.
From San Remo to Samaria: Following the WWI defeat of the Turkish Ottoman Empire, the League of Nations (precursor to the U.N.) decided to divide up the huge landmass of the vanquished Ottomans as follows: a mandate, or trusteeship, for France (Lebanon and Syria) and a mandate for Britain (Mesopotamia [today's Iraq] and Palestine [comprising of what is today Israel, Gaza, Judea, Samaria and Jordan]). As a result of Turkey's defeat, sovereignty over these lands passed from the Ottomans to the Principal Allied Powers (the leaders of the victorious Allies), who then assigned these rights of supreme authority over to their respective mandates. In the case of Palestine, this means that the last legal sovereign power over the Holy Land was the British Mandate, whose raison d'etre was to "reconstitute" there the national homeland of the Jewish People, which was understood to mean statehood. Thus, ever since the end of WWI, no Arab entity has ever had any legal sovereign rights to Western Palestine, which includes Judea and Samaria.
The legal position of the whole of Palestine was clearly defined in several international agreements*, the most important of which happened at San Remo, Italy, and which later led to the British Mandate. The San Remo conference was attended by the victorious Principal Allied Powers ("Council of Four"), who had the Power of Disposition to reallocate conquered Ottoman territories as they saw fit. It was decided to assign the Mandate for Palestine under the League of Nations to Britain. Two years after San Remo, an agreed text of the Mandate for Palestine was confirmed by the League and came into operation in September 1923. In Article 2 of that document, the League of Nations declared that
"The Mandatory shall be responsible for placing the country under such political, administrative and economic conditions as will secure the establishment of the Jewish national home, as laid down in the preamble.”The preamble clearly stated that
"recognition has hereby been given to the historical connection of the Jewish people with Palestine and to the grounds for reconstituting their national home in that country.”It was on this basis that the British Mandate was established. The San Remo Agreement was the last legally binding international decision regarding the rights to what is today known as the West Bank, and thus, according to international law which is still binding to this day, these parts, Judea and Samaria, rightfully belong to Israel and the Jewish People, period.
The significance for Israel and the Jewish People of San Remo cannot be overestimated. None other than Chaim Weizman, the Zionist leader of that time, declared:
"The San Remo decision...is the most momentous political event in the whole history of our (Zionist) movement, and, it is perhaps, no exaggeration to say in the whole history of our people since the Exiles"Powerful words indeed, yet regrettably so unfamiliar. Just how many of today's "middle east experts", journalists and opinion makers know the details of this and other important international agreements from that era? How many of them have even a rudimentary understanding of San Remo's historical and legal significance for Israel, the Jewish People and the Mid-East region?
* Balfour Declaration, San Remo Agreement, Treaty of Versailles, Treaty of Sèvres, League of Nations Covenant and Mandate for Palestine, Treaty of Lausanne, 1924 Anglo-American Convention.
This four minute video will give you the basics about the San Remo Conference:
So, if the post-WWI world powers ratified into international law the establishment of a Jewish state within the boundaries of Mandatory Palestine, how is it that we hear nothing about this today? Why has this landmark decision, still legally binding to this day, completely disappeared from today's Mid-East narrative? By what legal right do the nations of the world shirk their obligations and deny the State of Israel and the Jewish people their due? Suffice to say that if the truth, any truth, is not actively taught and preserved and if the facts are forgotten, falsity and misinformation fill the vacuum. That is why Left-wing terminology such as "Inalienable Palestinian Rights", "Israeli Occupation", "Illegal Settlements" and "1967 Borders" have become so pervasive and automatically accepted today.
Renowned legal scholar and jurist Dr. Jacques Gauthier, a non-Jewish Canadian attorney specializing in international law as it applies to Israel and her territories, has not forgotten the facts. The video below is his address to the ICEJ conference in Jerusalem, September 2010. Invest 16 minutes of your time to watch minutes 34:13 to 50:36 as he eloquently and passionately encapsulates the legal foundation for Israel's sovereign rights over Judea and Samaria. A must-view video for those who really want to understand Israel's legal and political rights to Judea and Samaria and the legitimacy of the settlements therein.
The dissolution of the League of Nations in 1946 in no way altered the Jewish People's rights to Judea and Samaria, given to them by the world powers, first in San Remo, then in the provisions of the Mandate for Palestine. This is because when the United Nations was established, Article 80 of its charter clearly specified that rights previously granted by the League would still be legally binding.
Regarding Israel's legal right to a national home (i.e. statehood), there is a popular misconception that the November 29th, 1947 United Nations Resolution 181 ("Partition Plan") granted the Jewish People this right to (a small part of) what was then Palestine. It didn't. In fact, as mentioned above, it was a series of post-WWI international agreements, notably the 1920 San Remo Resolution and the 1922 Mandate for Palestine, which were the true source of Jewish legal rights to all of Palestine, and subsequently, to the State of Israel. To claim otherwise is a misreading of history and is dangerous because it significantly limits the amount of state land that Israel can rightly claim under international law. It also erroneously sets the starting point for any negotiations with the Arabs along the indefensible 1947 partition "borders", rather than along the much more generous and secure boundaries of Greater Israel, which includes Judea and Samaria, as provided for by the Mandate for Palestine.
Therefore, far from being the true source of Jewish legal rights to the land, the Partition Plan is in fact irrelevant and should be deemed null and void for the following reasons:
1. At the time when the UN General Assembly met to decide on the plan to partition Palestine, the 1922 Mandate was still legally in full effect. The Mandate explicitly prohibited (Article 5) the transfer of any land under its jurisdiction, that is, any part of the Jewish National Home, to the control of any foreign power.
2. The proposal to partition Palestine was a recommendation only and not a legally binding decision. According to UN's charter, the General Assembly did not have the authority to make binding decisions, only recommendations (with certain exceptions such as the approval of the UN's budget).
3. While the Zionist leadership at the time reluctantly accepted the partition proposal, it was nonetheless rejected out of hand by both the local Arab leadership as well as by all the Arab countries. This outright rejection, in and of itself, should have rendered the plan null and void from the start.
4. Furthermore, the Arabs grossly violated the plan when they brazenly invaded the newborn State of Israel with the intent to annihilate her, thereby nullifying out-and-out even the moral validity of the decision.
5. Since the United Nations, as successor to the League of Nations which granted the Jewish People the legal right to Palestine, is obliged to meet the obligations of the British Mandate regarding territories in the Jewish National Home (pursuant to Article 80 of its charter), and since the Partition Plan wholly violated Article 80, this plan was clearly invalid from the start and should be regarded as illegal, null and void.
In the aftermath of the defensive war of June 1967, forty-five years after the League of Nations' landmark decision to implement the Mandate for Palestine, Israel finally retrieved some of the territory assigned to her and the Jewish People as a National Home. How the possession of her own homeland can possibly be considered the "Occupation of Palestinian territories" is beyond explanation. What is most tragic and ironic is that all too many of the Jews themselves have adopted this usage and even made it a cornerstone of their own national policy!
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| "The Jewish right of settlement in the West Bank is conferred by the same provisions of the Mandate under which Jews settled in Haifa, Tel Aviv and Jerusalem before the state of Israel was created." -- Prof. Eugene Rostow, Israel's Legitimacy in Law and History, Douglass J. Feith and Edward M. Siegel, ed., N.Y., 1993 Pictured: "Tel Aviv's Romantic Promenade" by Alex Levin. All rights reserved. |
Howard Grief z"l, a renowned expert in international law and one of the foremost authorities on Israel's legal rights to Judea and Samaria, had labored tirelessly for decades to make his "ironclad legal case" for the exclusive Jewish legal rights to the Land of Israel. The author of "The Legal Foundation and Borders of Israel Under International Law", Professor Grief's knowledge of this subject was encyclopedic. As per Grief, "there is no such thing as occupied territories for Israel. This is the greatest hoax and myth of the last part of the twentieth century and now in the 21st century".
His essay "Legal Rights and Title of Sovereignty of the Jewish People to the Land of Israel and Palestine under International Law" can be read here.
Also, click here for an exhaustive study of the Jewish legal rights to Judea and Samaria by Myths and Facts author Eli Hertz.
The Historical Right to Samaria
"No Jew is at liberty to surrender the right of the Jewish Nation and the Land of Israel to exist. This right is reserved to the Jewish People throughout the generations. Our right to this land, in its entirety, is enduring and eternal and until the coming Redemption, we shall never yield this historic right." --David Ben-Gurion, 20th Zionist Congress speech, Basel 1937
Constant Jewish Presence. Samaria is the cradle of Jewish history, reaching all the way back to the time of Abraham the Patriarch, some 3700 years ago (see Genesis, chap. 12). Despite numerous expulsions over the centuries, the Jews nonetheless maintained a continuous presence in their beloved homeland ever since they first crossed over the Jordan River and entered into the land under Joshua's leadership nearly 3300 years ago (10th day of Nissan, 2488 [1272 B.C.E.]). Innumerable archeological findings uncovered in the Shomron bear witness to the presence of the Jewish People in their homeland going back millennia. The magnificent 3,285 year old Alter of Joshua on Mount Eval is a shining example (click here for more detail). The ancient remains of King Ahab'spalace and King Herod's works can be seen today in Sebastia, near the settlement of Shavei Shomron. Especially intriguing are the Samaria Ostraca, potsherds with ancient Hebrew inscriptions found in Ahab's palace. This spectacular find corroborates the Biblical narrative regarding the names of the the Israelite clans of Manasseh and their connection to the land. It verifies the Biblical account (in the books of Numbers and Joshua) and confirms that the Jews were rooted in Samaria some 1500 years before the birth of Islam. See the actual study here.
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| Today's presence of an Arab population in Samaria should not in any way detract from the time-honored Jewish rights to this land. A view of the Kana Nature Reserve, Karnei Shomron. In Biblical times, the Kana Stream (center) divided the tribal portions of Ephraim and Manasseh. |
The Biblical Right to Samaria
"And Abram passed through the land unto the place of Shechem, unto the terebinth of Moreh...And the Lord appeared unto Abram, and said: 'Unto thy seed will I give this land'; and he built there an altar unto the Lord..." (Genesis Ch. 12:6-7)
"And Jacob came...to the city of Shechem, which is in the land of Canaan...And he bought the parcel of ground, where he had spread his tent, at the hand of the children of Hamor, Shechem's father, for a hundred pieces of money." (Genesis Ch. 33:18-19)
"And Jacob came...to the city of Shechem, which is in the land of Canaan...And he bought the parcel of ground, where he had spread his tent, at the hand of the children of Hamor, Shechem's father, for a hundred pieces of money." (Genesis Ch. 33:18-19)
The Birthright of the Jewish people. The Torah (Jewish Bible) says explicitly and unequivocally that the Land of Israel is the Devinely-given patrimony of the Jewish People. This is the Jews' oldest and strongest claim to the land and on that basis alone the Shomron and all the rest of the land should rightfully be in their sole possession. For millenia Jews had yearned for the return to Zion and the Land of Israel. The practice of their religion in exile, far from their homeland, has always been an adaptation and a compromise. In fact, a truly authentic and complete fulfillment of Judaism requires a presence in Eretz Yisrael. The Jews' presence in and ownership of their homeland is only natural and they need not apologize for it.
Ironically, today's Israelis, who so jealously guard their day-to-day mundane rights such as that parking spot they saw first or their place on line at the bank, would blithely give away that which is rightfully theirs - their patrimony, no less! - when they really don't need to.
I agree with Ms
Avraham. SSRN.com/astract=2385304 It seems to me that "Where the
prior holder of territory had seized the territory unlawfully, the state which
subsequently takes that territory in the lawful exercise of self-defense"
has "liberated" the territory. It is not "occupied" in the
sense of a "belligerent occupation" as that term is used in 4th Hague
Convention which assumes in Article 43 that the state that has been dispossessed
is the legitimate sovereign over that territory. In 1948, the collective
political rights to self-determination in Palestine
Arab-Palestinians; you have to be a country first, which you are not, before you can be a country under occupation. Furthermore, the Arab-Palestinians have a State it is called Jordan which was created illegally from Jewish allocated territory under international law and treaties.
ReplyDeleteThe UN cannot make a country for the Arab-Palestinians. They have no such authority under the UN Charter; Moreover, The UN cannot abrogate International law and treaties. The UN is only an advisory capacity and all UN resolutions must be accepted by all the parties in writing to be valid, The Arabs did not agree, therefore the resolutions have no meaning whatsoever.
Contemplating the political landscape
What good fortune for governments that people don’t think
Israel should send troops to arrest Abbas for inciting violence. He is not above the law.
ReplyDeleteAny person or group who incites violence against the Jewish people must be declared an enemy of Israel and treated as such.
If the Arabs cannot live in peace with the Jews in Greater Israel, the only solution is to evict them to Jordan or Gaza. Enough is enough. It's time for Israel to take off the gloves and take the necessary steps to protect the Jewish people in Israel. One of the fundamental obligations of the government is to protect its citizens at all costs.
Israel must adopt a policy of zero tolerance. By pacifying the Arabs and the world nations, Israel's government is failing to take care of the Jewish people. It should not be necessary to remind the government that the Jewish people have suffered for over 2000 years at the hands of other people or nations who terrorized the Jewish people in Diaspora.
Now the Jews in their own country must be protected at all costs. Israel has the power, means and resources to stop the ghetto mentality. Israel's government must overcome the leftist attitude and their delusional mentality, Israel must hit hard all terrorists and perpetrators of violence with a no reprieve, "damn the torpedoes" policy.
If the current government cannot protect its people, its time to change the government. Less talk and more action and results.
"In Israel; we have to undue and reverse the decades of nonsense that the peace industry has fermented, which led us to the position where the world thinks we the Jews are occupiers in our own ancestral land.
If something is false and it is repeated enough times it becomes sort of common wisdom.
We have to undo that."
Never will there be an Arab-Palestine state in Israel west of Jordan River.
It is interesting to note that the World at large is not questioning the State of Jordan and its territory, which has taken 78% from the international allocation to the Jewish land. The new Arab State of Jordan a State that has never existed in history prior to WWI. But, Israel that has existed on its ancestral land for over 3600 years which included; the land Jordan occupies, the Arabs and the world at large are questioning Israel’s sovereign territory. They do not mention that The Arabs received over 5 million square miles of territory and that the Arabs terrorized and expelled over a million Jewish families and their children, including the confiscation of all their assets, personal property, homes, businesses and Jewish owned land of about 120,000 sq, km. or 75,000 sq. miles (6 times the size of Israel, valued in the trillions of dollars) and that the majority of the Jewish families expelled from Arab countries were re-settled in Israel’s LIBERATED TERRITORY and currently comprise over half the population in Israel.
ReplyDeleteArabs are the occupiers; they have 21 Arab States that were granted to them (5 million square miles) after WWI by the same powers that granted the State of Israel (75,000 square miles).
ReplyDeleteThere is no other term for Jewish villages and towns in Judea and Samaria and East Jerusalem than Liberated Jewish Territories since times immemorial.
To negate any claim of Arab ownership of the land, Read and study the Ottoman Empire land title. It states that approximately 92% of the land was owned by the government, some of it was leased to the Arab population as sharecroppers, not owners.
The balance 8% was owned by Arab land barons who sold the land at premium prices to the Jews.
Here is the incredible testimony of The Mufti of Jerusalem on January 12, 1937 when he documents in testimony for the British Peel Commission that the Jews did not steal land from the Arab Palestinians but by the year of 1920, the time of the “British Occupation” as trustee for the Jews, meaning the British Palestine Mandate, the Jewish people had already purchased 1,500,000 dunams of land in the Land of Israel which is 375,000 acres of desolate and swamp land.
The Mufti also testified that the land was not bought by “forcibly acquired-compulsory acquisition of land”. That kind of ruling behavior was the action of the Ottoman rulers and not the Jews. Also the Mufti admitted that any evictions done were by absentee landlords who chose to sell “land over the heads of their tenants, who then were forcibly evicted”, and that the majority of these tenants were not Palestinians but Lebanese. Any land title granted by the British to the Arabs was and is illegal and therefore it is null and void.
It is a common practice by the Muslims to obfuscate, distort, outright fabrication and misrepresent facts to their benefit, it is even permitted under their religion, in order to accomplish their goals.
It is tine for a separation between the Jews and the Arabs who terrorize and commit violence.
Israel has been extremely generous in its concessions and appeasement to the Arabs since 1948. It only added to more terror and violence and the deaths of thousands of Jews, who have suffered enough in the Diaspora for thousands of years.
NEVER AGAIN!
YJ Draiman