International Law Officially Recognizes Jewish Claims in Judea and Samaria
By Rachel Avraham
History reminds us that the Palestine Mandate, supported by all 51 members of the League of Nations at the time, and codified in international law, is recognized as legally valid by the United Nations in Article 80 of the UN Charter. In addition, the International Court of Justice has reaffirmed this on three different occasions.
While some people argue that the Palestine Mandate became obsolete following its termination in 1947, international legal scholars claim otherwise. According to Eugene Rostow, a Dean of Yale Law School, “A trust never terminates when a trustee dies, resigns, embezzles the trust property, or is dismissed. The authority responsible for the trust appoints a new trustee, or otherwise arranges for the fulfillment of its purpose.” While the Palestine Mandate ceased to exist in Israel and Jordan when Israel and the Hashemite Kingdom obtained independence, Rostow maintains that “its rules apply still to the West Bank and the Gaza Strip, which have not yet been allocated either to Israel or to Jordan or become an independent state.”
This international law expert adds that the Armistice Lines of 1949, which are part of the West Bank boundary, “represent nothing but the position of the contending armies when the final cease-fire was achieved in the War of Independence. The Armistice Agreements specifically provide, except in the case of Lebanon, that the demarcation lines can be changed by agreement when the parties move from armistice to peace.” Simply put, international law does not consider the 1967 borders the internationally recognized borders of the State of Israel.
Israeli legal claims to Judea and Samaria are strengthened by the fact that no other sovereign nation state claims this territory as her own. Both the Ottoman Turks and the British Mandate renounced their claims to the Land of Israel decades ago, including Judea and Samaria. Furthermore, Jordan’s annexation of Judea and Samaria following Israel’s declaration of independence was never internationally recognized, since it amounted to an act of aggression. Both the UN Security Council and UN General Assembly declared at that time that Israel was a peace-loving state in the 1948 war.
Professor and Judge Stephen M. Schwebel, who served as President of the International Court of Justice, explains that the principle of “acquisition of territory by war is inadmissible” must be read together with other principles, “namely, that no legal right shall spring from a wrong, and the Charter principle that the Members of the United Nations shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State.” In other words, territories acquired through wars of aggression don’t hold validity, which effectively repudiates Jordanian claims to Judea and Samaria. Observers argue too that the fact that Jordan has officially renounced her claims to Judea and Samaria and signed a peace agreement with Israel without gaining back these territories seals the water-tight case for Israel’s jurisdiction there.
Jewish mosaic discovered in Shiloh, in Judea and Samaria
The situation, however, is different when a country reclaims lands that originally belonged to her as part of a war of self-defense, as Israel did in 1967. “Where 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 that prior holder, better title,” adds Professor Schwebel. “Between Israel acting defensively in 1948 and 1967 on the one hand, and her Arab neighbors acting aggressively in 1948 and 1967 on the other, Israel has the better title in the territory of what was Palestine, including the whole of Jerusalem, than do Jordan and Egypt.”
NGO to Clinton: Settlements are legal
The Office for Israeli Constitutional Law, a non-governmental legal action organization, sent a letter to US Secretary of State Hillary Clinton last week, warning that by labeling Jewish settlements in the
The little-known Anglo-American Convention, a treaty signed by the US and British governments in 1924, stipulated that the US fully accepted upon itself the "Mandate for Palestine", which declared all of the land within its borders.
"The treaty has been hidden," said OFICL director Mark Kaplan. "But if you look at the House [of Representatives] deliberations during World War I, people are saying, 'Look, we've invested a lot of money in Palestine, and we expect that this treaty will be upheld.'"
Though the United Nations' 1947 partition plan declared the "West Bank" an Arab territory, the mandate's borders still hold today.
"The mandate expired in 1948 when Israel got its independence," Kaplan said. "But the American-Anglo convention was a treaty that was connected to the mandate. Treaties themselves have no statute of limitations, so their rights go on ad infinitum."
"The UN partition plan was just that-a plan," said OFICL chairman Michael Snidecor in a statement. "The General Assembly has no authority to create countries or change borders."
Clinton's rhetoric, according to Kaplan, has become more and more troubling.
"Our letter was sent as a result of so many comments that have been made by the secretary of state," he said. "It's part of a process that we've been involved with for a number of months, but we're speeding things up because of the acceleration of recent events."
A few days after praising Israel for its "unprecedented" actions in freezing settlement activity, Clinton reemphasized the supposedly illegal status of the settlements.
"The United States believes that settlements are not legitimate," she said. "That has been the policy of our government for 40 years. That is the policy of President [Barack] Obama today and going forward."
According to Kaplan, the IDF presence in the "West Bank" has added to this misconception of illegal activity.
"Israel chose to adopt a policy of military rule in 1967, which makes it smell of occupation," Kaplan said. "And the world says it is illegal occupation because of all the propaganda that's been out there. Israel's presence in Judea and Samaria does not qualify as an occupation under international law because of the Anglo-American Convention, and if you look at the Hague and Geneva conventions."
The OFICL letter also warned Clinton that if her office does not comply with the civil rights recognized in the Anglo-American convention, OFICL will file a class-action suit in a US district court.
Prime Minister Binyamin Netanyahu declared a 10-month settlement freeze last Wednesday, but the letter, which was also sent to Netanyahu's office, states that under the legal principle of estoppel - which precludes someone from denying the truth of a fact which has been determined in an official proceeding or by an authoritative body - any demand on Israel to freeze construction within the mandated borders is illegal under US law.
According to one adviser, Netanyahu's staff is reviewing the documents and will discuss the issues before replying to OFICL's planned actions.
Former ambassador Dr. Meir Rosenne: The Jewish communities in Judea and Samaria are legal. International law says this.
By Elad Benari
First Publish: 4/5/2012, 1:16 AM
Judea and Samaria
Dr. Meir Rosenne, former Israeli ambassador to the United States and France, said on Wednesday that the Jewish communities in Judea and Samaria are legal and that this is true under international law.
Rosenne spoke to Arutz Sheva a day after the prosecutor for the International Criminal Court in The Hague rejected a complaint filed by the Palestinian Authority against Israel for alleged war crimes during "Operation Cast Lead" in Gaza in 2009.
The prosecutor explained that only states can file a complaint with the International Criminal Court, noting that the PA is only an observer at the United Nations and not a member state.
Dr. Rosenne noted that “the PA is not a country. It has a Palestinian Authority and Hamas which controls Gaza but they have no country. All UN documents dealing with Resolution 242 do not mention the word Palestinian.”
He added that although some people may not be aware of this, under international law the Jewish communities in Judea and Samaria have full legal status.
“American jurists such as former ICJ President Stephen Schwebel have said that Israel has more rights to Judea and Samaria,” said Rosenne. “Any legal expert who looks at the UN documents will see that there is no such concept as the West Bank or the occupied territories, but rather Judea and Samaria. That is the terminology that appears in the most official documents.”
Dr. Rosenne added that according to the Geneva Convention, all the Jewish communities are legal, saying, “Article 49 of the Fourth Geneva Convention says that an occupying power cannot forcibly move citizens to occupied territory. This was true during World War II when the Germans forcefully moved German citizens to occupied Polish territories. In our case, Israel never occupied Judea and Samaria. Judea and Samaria is an area that has never belonged to another country. Jordanian occupation was never recognized, just as the Egyptian occupation of Gaza was not recognized. The fate of these areas should be determined by negotiations among the parties. The settlers never forcibly entered anywhere, nor were they moved there, so they are perfectly legal.”
He also noted that, according to the Geneva Convention, terrorists imprisoned in Israel should not be considered prisoners of war.
“The Geneva Convention states that a prisoner of war is a man who openly carried weapons and wore uniforms and respected the laws of war,” said Rosenne. “The terrorists do not carry arms openly, they do not have uniforms and they do not respectthe laws of war when they kill children. They are not party to the conflict because no Arab state has adopted them. Nevertheless, Israel allows every terrorist to meet with an attorney.”