On the Question of the Legality of the Jewish Civilian Communities in the Disputed Areas of Judea, Samaria and Gaza

Within the context of international law, we draw attention to the Balfour Declaration of 1917. The text of the Declaration, as noted by the Palestine Royal Commission Report of 1937, p. 22, had been approved by U.S. President W. Wilson prior to its publication. Indeed, the Inquiry Commission established by President Wilson affirmed “that Palestine should become a Jewish State” and that “Palestine...was the cradle and home of their vital race”, a succinct statement of the essence of the principle of self-determination.

That document, issued by the British Government and later to serve as the basis for the League of Nations Mandate approved in 1922, refers on the one hand to “a National Home for the Jewish people in Palestine” while on the other, refers to “non-Jewish communities in Palestine”.

The distinction is not coincidental. National and historical rights are recognized clearly in the context of the Jewish people whereas the opposing parallel, that the land in question ‘belonged to an Arab people’ as it were, was not mentioned and purposefully ignored. What was included in the Balfour Declaration and the Mandate were the “civil and religious rights” of non-specified “non-Jewish communities”, without reference to Arabs at all.

Furthermore, the aforementioned Mandate text acknowledges that “recognition has thereby been given to the historical connection of the Jewish people with Palestine and to the grounds for reconstituting their national home in that country”. In Article 6, the administration apparatus of the Mandate, a temporary form of government, was charged with facilitating and encouraging “close settlement by Jews on the land, including State lands and wastelands not required for public purposes”.

It is worthy to note that the United States House of Representatives and the Senate adopted resolutions supporting the Mandate, on June 30, 1922 and May 3, 1922 respectively. President W. Harding signed a proclamation on September 21, 1922 that stated that “the United States of America favors the establishment in Palestine of a national home for the Jewish People...and that the holy places and religious buildings and sites in Palestine shall be adequately protected”. These acts reinforced the position fully understood that the rights accruing a national grouping belonged solely to the Jewish people and that non-Jewish elements could claim but protection for singular and individual buildings and sites.

What cannot be ignored is the historical connection of the Jewish people to this Land. The continuous presence of Jews in their homeland over many centuries under Jewish independent rule (tribal federation and monarchy) and centuries of foreign rule is itself a proof of right and legality. This presence included, indeed primarily so, the areas known as Judea, Samaria and Gaza. This presence was maintained despite destruction of political sovereignty, conditions of exile, oppression and persecution by the Babylonian, Greek-Syrian, Roman, Persian, Arab and Ottoman Empires. Despite the early favorable attitude of the British Empire, the pursuance of the internationally recognized goals of the Mandate necessitated acts of national liberation akin to those of the American Colonies in 1777, as well as other countries such as India, Ireland and African nations. This struggle for freedom forced Great Britain to turn to the United Nations in 1947.

The resolution adopted by the General Assembly of the United Nations on November 29, 1947 and accepted by the governing institutions of the Jewish People is to be seen as the fountainhead of the recognition of Israel as an Independent State possessing sovereignty. In rejecting that resolution and in declaring war on the nascent state of Israel, the Arab communities and neighboring states severed all legal connection to claims they did or would, in the future, make. In a sense, that rejection of the compromise proposal of partition revived the full and inalienable rights of Jews to all the territories included in the Mandate. These territories include Judea, Samaria and Gaza.

As a result of armed acts of aggressions, the Jordanian entity subsequently conquered portions of the Palestine Mandate and Egypt occupied the Gaza Strip district. The non-Jewish communities of the areas of Judea and Samaria, never having expressed themselves in criteria of nationhood and geo-political sovereignty previously, never established a state on this territory following the 1947 Resolution and, in fact, requested, at the Second Palestine Arab Conference convened in Jericho on December 1, 1948, that these territories be enjoined to the Hashemite Kingdom. Indeed, a resolution of unification was signed into Jordanian law on April 24, 1950, which purported to transfer to the Hashemite Monarchy sovereign rights to those areas of Western Palestine not under Israeli control following the 1948-49 War of Independence. That law negated the terms of international law, and, in any case, was only recognized by Great Britain and Pakistan.

In the matter of General Assembly Resolution 242, we refer you to the testimony of Eugene V. Rostow who participated in the negotiations of that Resolution. For example, in The New Republic issue of October 21, 1991, page 14, Mr. Rostow treats the issue of illegality. He makes it plain that Jewish settlement in Judea and Samaria is indeed legal, and that the Jewish right of settlement west of the Jordan River is “unassailable”.

We now briefly address another point. The status of the areas of Judea, Samaria and Gaza (YESHA) can in no way be conceived as being governed by the Fourth Geneva Convention for the simple reason that they are not occupied territories as defined in this document. Paragraph (6) of Article 49 of the said Fourth Geneva Convention is irrelevant to the question at hand in that Article 2 stipulates that the territory under issue must belong to a High Contracting Party. This is not the case, as the territory under discussion did not belong to any such Party. Furthermore, the drafting history of Article 49 was directed against the practices of the Nazi regime in forcibly transporting populations. It would border on the ridiculous to claim that Article 49 (6) which was fixed so as to prevent a return of heinous Nazi practices of Judenrein should now be understood as meaning that Judea, Samaria and Gaza (YESHA) must become empty of Jews.

Moreover, the Convention does not and could not prohibit the establishment of communities, towns or other civilian centers. Even government economic incentives cannot be considered as “mass deportation” or “transfer”. Over 90 percent of the communities populated by Jews are located on state land, not land privately owned by Arabs. Indeed, some of the communities are built on land that was either owned by Jews prior to 1967 or purchased afterwards.

One last point. The basis for an Arab claim to Palestine, formulated by the PLO which represents itself as the legal vehicle for that claim, is the Palestinian National Covenant. This document can only be described as racist and invalid on humanitarian grounds and unacceptable in international law. In fact, a Palestinian identity has always been a tactical move by Arabs who always viewed themselves as belonging to a greater Arab nation as in the case of the request of the General Syrian Congress on July 2, 1919 “that there should be no separation of the southern part of Lebanon [that is, the Palestine territory] from the Syrian country”, a position repeated ever since as, for example, by Yasser Arafat when he declared over the Voice of Palestine on November 18, 1978 that “Palestine is southern Syria and Syria is northern Palestine”.

In an interview with Matt Lauer on NBC’s The Today Show on October 1, 1997, Secretary of State Madeleine K. Albright related to building in Yesha and said: “I wasn't happy…I felt that going forward with those kinds of buildings was not helpful. Mr. Lauer pressed her and stated: “ It's legal. “

And Albright admitted: “It's legal.”

The need for this legal commentary stems from the fact that Arabs aligned with the PLO have announced that Jewish communities established in the territories of YESHA are a priori “terrorist” in nature and are a form of “aggression”. Having thus defined Jewish civilian in this way, Arabs make the claim that they are defending themselves and are justified in using all means at their disposal including shooting, bombing and stabbing such as has been used in this latest wave of violence. We reject such an approach as immoral, illegal and reminiscent of war crimes of the recent past.