INTERNATIONAL LAW AND THE STATE OF ISRAEL
(Article): International law and the state of Israel. About legal claims to the land, Mandate, San Remo and Balfour
written by Ted Belman on IsraelUnwired
For thousands of years, nations came and went, pursuant to the rule, to the victor go the spoils. This included the right to rape the women, enslave the men, confiscate their wealth and rule the country as they saw fit.
By the beginning of the nineteenth century, this rule had changed considerably but the right of the victor to change borders and transfer populations of conquered countries was enshrined in international law.
So, in accordance with international law, the victors of WWI, Great Britain, France and the US negotiated the Versailles Treaty and forced Germany to accept it. This treaty changed borders of the defeated nations and moved populations. Their right to do so was never questioned.
Similarly, Britain, France, Italy and Japan met in San Remo in 1920 to dispose of the Ottoman Empire. They decided to break it up into various countries. These countries would start as Mandates under the newly formed League of Nations and would remain so until they were ready for independence.
(Yet, the Palestinians and other Arabs refuse to accept that the victorious powers had the right to create Israel.)
In deciding what countries to create, they held hearings, recorded evidence and then made decisions which were set out in the San Remo Resolution. It is argued by leading authorities that the decisions were Res Judicata i.e., legally decided. In other words, they were legally binding.
One of those decisions was to create the Palestine Mandate, which would become the Jewish Homeland. In accordance with this intention, the Jews were given the right of close settlement of the land. The land covered by that mandate included all of what is now Israel and Jordan. Two months before this document was signed by the League of Nations, the Mandatory Power, Great Britain, inserted a new clause in the draft mandate which restricted the area of close settlement by Jews to the lands west of the Jordan River. This was in violation of what had been decided at San Remo but no one cared, except the Jews.
The land east of the Jordan River was called Trans-Jordan and it’s rulers declared independence as Jordan in 1946.
After WWII and the crushing defeat of Germany and its allies, the victors changed borders and moved populations. It was their right.
Der Spiegle reported;
“But the people fleeing the Red Army were unaware that the Allies had already agreed with the Polish government-in-exile to hand over large parts of eastern Germany to Poland and resettle the Germans who were living there.
“All those who didn’t manage to escape in time fell victim to the frenzied expulsions that were carried out until July 1945. The organized resettlement of Germans and ethnic Germans from Germany’s former eastern areas and the Sudetenland began in January 1946. In all, some 14 million Germans lost their homes.”
These expulsions were often done in a brutal manner and were carried out as part of a broader programme of nation-building pursued by the new communist government between 1945 and 1949. “The centre-piece of this programme was an attempt to achieve the ethnic homogenization of the state, to ensure as close a match as possible between its ethnic and political borders.”
At no time did the allies object to this “ethnic homogenization”.
The flight of the Arabs from the Palestine Mandate and Israel, whether voluntary or forced, must be viewed in this context. It happened at the same time. The hypocrisy of the West is glaring. In post war Europe, they insisted on the ethnic cleansing as the path to stabilization and peace whereas in the case of the “Palestinian refugees”, the UNGA passed Res 194 in Dec 11/48 even before the war was over in which they recommended that the Refugees should be permitted to return. Fortunately for Israel, a recommendation has no binding affect and can be ignored.
On November 29, 1947 the newly formed United Nations, which took over from the now defunct League of Nations, passed non-binding Res 181 in the General Assembly which proposed a line partitioning the land west of the Jordan River, between Jews and Arabs and invited both to declare independence over their respective parts.
The Jews accepted the invitation and declared their state of Israel on May 18, 1948.
The Jewish Virtual Library recalls:
“Before the United Nations voted in favor of the Partition Plan on November 29, 1947, the Arab Legion of Jordan attacked Jerusalem. Their forces blocked Jerusalem’s roads and cut off the city’s access to water. After bitter fighting, the Jewish Quarter of Jerusalem’s Old City fell to the vastly superior arms and numbers of the Arab Legion. The surviving Jewish inhabitants fled to the “New City,” the four-fifths of the capital that Israel successfully held.
“Nearly twenty years later, during the 1967 Six-Day War, Israel’s army liberated Jerusalem’s Old City, finding the area completely neglected and virtually destroyed.
“All but one of the thirty five synagogues within the Old City were destroyed; those not completely devastated had been used as hen houses and stables filled with dung-heaps, garbage and carcasses. The revered Jewish graveyard on the Mount of Olives was in complete disarray with tens of thousands of tombstones broken into pieces to be used as building materials and large areas of the cemetery leveled to provide a short-cut to a new hotel. Hundreds of Torah scrolls and thousands of holy books had been plundered and burned to ashes.”
“So much for the Arab respect for Jewish holy sites and their regard for the Al Aksa Mosque situated on the Temple Mount, which they today claim, is the “third holiest site in Islam.”
The Arabs on the other hand rejected Resolution 181 and declared war rather than a state. Not until the Arabs were losing the war in 1949 did the international community arrange a ceasefire. The ceasefire line was based on who controlled what and thus Israel ended up with more lands than the Res 181 had set aside for them.
The Israel-Jordan Armistice Agreement, was signed on April 3, 1949 and Israel became a member of the UN on May 11, 1949.
This armistice agreement made no mention of what to do with the newly created refugees even though Jordan had raised the issue.
Jordan ended up in possession of the West Bank and of the Old City of Jerusalem and formally annexed them. The international community, except for three countries, rejected this annexation.
So clearly the West Bank does not belong to Jordan or the Palestinians for that matter, and Israel itself was legitimately created.
So, who does the West Bank, otherwise known as Judea and Samaria, and the Old City, belong to?
Some people argue that the Palestinians have a right to create a state there but they never quote the legal foundation for such a right. They simply reject the Balfour Declaration and its implementation. They claim that they, the Arabs, are indigenous to the area and therefor entitled to sovereignty over the land but international law does not support such right.
Professor Eugene Kontorovich is the head of the international law department of the Kohelet Policy Forum and a fellow of the Jerusalem Center for Public Affair. He answers the question, “how can the legal position of Judea and Samaria [West Bank] be defined?”, in Israeli rule in the West Bank is legal under International Law .
“The question that should be asked is: What were the borders of Israel when it was first established? What defines this is the borders at the moment of independence. Israel was created, like most countries, after a successful war where no one came to its aid. In international law, there is a clear rule regarding the establishment of new countries: the country’s borders are determined in accordance with the borders of the previous political entity in that area. So, what was here before? The British Mandate. And what were the borders of the British Mandate? From the Mediterranean Sea to the Jordan River.”
Thus, he argued, Israel liberated its own territory in 1967. Therefore the Fourth Geneva Convention (FGC) does not apply and the settlements are legal. And if the FGC doesn’t apply then Israel has the right to expel Arabs from these territories just as the victors expelled Germans from the land they conquered.
The international community chose not to see it that way and passed UNSC Res 242 at the end of the Six Day War in 1967. It began with a misstatement of the law, when it recited; “Emphasizing the inadmissibility of the acquisition of territory by war…” In fact, International law holds that victors, in a defensive war, can keep the land acquired.
Nevertheless, the resolution did not demand that Israel withdraw from all territories but gave her permission to remain in the territories until the following conditions were met:
“Termination of all claims or states of belligerency and respect for and acknowledgment 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;”
Clearly these conditions are far from being met.
It is worth noting that the 67 War was a continuation of the 48/49 war and was made necessary by the violation of the ’49 Armistice Agreement by the Arabs. Looked at in this light, Israel totally defeated the Arabs just as the Allies totally defeated the Germans and their allies after WWII. Thus, Israel has every right to reject the return of any Arab refugees and to keep all the lands acquired to the Jordan River.