By David Solway
FrontPageMagazine.com | Wednesday, July 30, 2008
The Israeli government's present intention of holding on to a sliver of the West Bank within the perimeter of the security fence is an issue of serious import and is widely regarded as an illegal land grab. Yet the issue is by no means as simple as it has been made out to be and cannot be cursorily decided to the advantage of the hypothetical Palestinian state.
The historical record makes it nonsense to regard the formation of a Palestinian state as anything other than a collective, internationally-approved land grab in itself in an area mandated by the League of Nations as a Jewish homeland.
First and foremost, this is the same West Bank from which Jews were expelled in 1929. It was never "Palestinian" territory in the first place and no political entity called "Palestine" ever existed except as a Roman provincial designation revived in the twentieth century as a Mandatory appellation. The West Bank was conquered from Jordan in a defensive war and Jordan subsequently waived its claims and rights to the area. Military and demographic considerations remain justifiably paramount in official Israeli thinking. Along with the entirety of Gaza, fully 94% of the disputed territory (altogether, 97.5% if one includes Gaza in the calculation) would be ceded to the Palestinian Authority.
Indeed, the original Article 24 of the PLO Covenant explicitly states that "this Organization does not exercise any regional sovereignty over the West Bank…" It was only in the wake of the 1967 war, after Jordan had lost the territory, that the article was revised to assert the Palestinian claim.
The historical record makes it nonsense to regard the formation of a Palestinian state as anything other than a collective, internationally-approved land grab in itself in an area mandated by the League of Nations as a Jewish homeland. Article 22 of the League of Nations Covenant of 1919 specifies that the tutelage entrusted to the "advanced nations" over the "colonies and territories which as a consequence of the late war have ceased to be under the sovereignty of the States which formerly governed them" should be "exercised by them as Mandatories on behalf of the League" (italics mine).
This Article, which is the source of the Palestine Mandate of 1922, envisioned the preparation of the colonies and territories under its administration for self-rule on a country by country basis, with Palestine forming a special case. The special status of the Palestine region was underwritten in Article 95 of the Treaty of Sèvres in 1920, thus differentiating treatment of this region from the Mandates for Syria and Mesopotamia, owing, obviously, to the unique factor in the administrative equation presented by the Jewish element.
No less important, Article 95 affirmed the Jewish right to plenary settlement, determining to "put into effect the declaration originally made on November 2, 1917, by the British Government, and adopted by other Allied Powers"; and the San Remo Resolution in 1920 incorporated the terms of both the Balfour Declaration of 1917 and of Article 22 of the League of Nations Covenant, as did the Treaty of Sèvres. The League of Nations Palestine Mandate recognized both "the historical connection of the Jewish people with Palestine" and the right to "reconstitute their national home in that country." It further stipulated the right of the Jewish people to settle in the whole of the Mandated territory, as per Article 6 which encouraged "close settlement by Jews on the land, including State lands and waste lands not required for public use." (This article was confirmed by Winston Churchill who wrote that "a Jewish state will arise in our day on the banks of the Jordan"—note the use of the plural.)
These legal obligations were later violated by the British, who, adding one injury to another, also transferred the greater portion of the Golan Heights, intended as part of the future Jewish state, to the French Mandate of Syria in a private arrangement known as the Franco-British Boundary Agreement—an act in direct contravention of Article 5 of the League of Nations Mandate which stated that "The Mandatory shall be responsible for seeing that no Palestine territory shall be ceded or leased to, or in any way placed under the control of, the Government of any foreign Power."
Since all the Powers involved in carrying out the Mandate were "foreign" and a sectoral agreement was in place specifying regional control of designated areas, the Golan transfer remains contestable since it entailed the cession of territory from one Power to another. Thus the Golan was never legally a part of the French Mandate nor, following a second "transfer," could it be considered under the force of international law as part of the Syrian nation. In any event, what we now call "Palestine" is nothing less than an attempted political and demographic usurpation of Jewish mandated as well as ancestral territory which, in the formula applied at the time of the Mandate, was to be settled by Jews "as of right and not on sufferance."
Considered from the standpoint not only of the long historical record but of the original League of Nations framework, which was flagrantly contravened but never legally vacated, it seems, then, just as reasonable, if not more so, to speak of Occupied Israel as of Occupied Palestine. For the obligations imposed by the League of Nations Mandate were validated by Article 80 of the United Nations' founding Charter, Paragraph 1 of which unequivocally states that "nothing in this Chapter shall be construed in or of itself to alter in any manner…the terms of existing international instruments to which Members of the United Nations may respectively be parties."
Since the British government returned the Mandate to the UN in 1947, the unassailable conclusion is that much of the territory now earmarked for Palestinian governance, which has never ceased to be the cadastral address for Jewish consciousness, was historically as well as legally an integral part of Israel. Additionally, Article 70 (1 b) of the Vienna Convention on the Law of Treaties convened by the United Nations, signed on May 23, 1969 and extended on March 21, 1986, states that the termination of a treaty "does not affect any right, obligation or legal situation of the parties created through the execution of the treaty prior to its termination." Which is to say that all previous relevant and lawful treaties, regardless of circumstances, remain in force as international instruments. The Vienna Convention, known informally as the Treaty on Treaties, further consolidates Israel's legal right, already determined as irrefrangible, to the territory which was stripped from it.
It is often asserted by Israel's detractors that the country is in violation of the Fourth Geneva Convention, in particular Article 49 which stipulates that: "The Occupying power shall not deport or transfer parts of its own civilian population into the territory it occupies." But as Ted Belman points out in American Thinker (August 30, 2007), citing legal expert Talia Einhorn, "this territory was not 'occupied' in the sense of the Geneva convention, since those rules are designed to assure the reversion of the former legitimate sovereign which, in this case, does not exist."
And again: since these territories "had not been taken from a legitimate sovereign, the Fourth Geneva Convention and The Hague Regulations 1889/1907 were inapplicable there." Former US Undersecretary of State for Political Affairs, Eugene W. Rostow, who was also one of the framers of UN Resolution 242, is very clear about this: "the Convention applies only to acts by one signatory 'carried out on the territory of another.'
The West Bank is not the territory of a signatory power, but an unallocated part of the British Mandate…The controversy about Jewish settlements in the West Bank is not, therefore, about legal rights but about the political will to override legal rights" (The New Republic, April 23, 1990). In ceding the whole of Gaza and 94% of the West Bank to their Arab claimants, it may be persuasively argued that successive Israeli administrations have overridden the legal rights of the Jewish settlers in these areas.
Michael I. Krauss and J. Peter Pham, in an article for Commentary (July-August 2006), have also shown that, from the standpoint of international law, the West Bank cannot be described as "occupied." "The British withdrawal from the territory of the Mandate," they write, "resulted in a lapse or vacancy of internationally recognized sovereignty. The West Bank was, in legal jargon, res nullius: a thing belonging to no state." In other words, neither Jordan (which acquired the West Bank through armed aggression) nor Turkey as the residue of the dismantled Ottoman empire, could later lay legitimate claim to the area. "In such a case," the authors continue, "sovereignty in international law may be acquired by any state in a position to assert effective and stable control without resort to unlawful means…" Since self-defence is a legal entitlement in the jus gentium (rule of law common to all nations), Israel's defensive wars of 1967 and 1973 fulfilled precisely these internationally recognized conditions. Therefore, the notion "that Israel's presence in the territory constitutes an 'occupation' is utterly specious."
Equally spurious is the common belief that the current status of the Territories is the casus belli which must be defused at Israel's expense. Since Israel had no presence whatsoever in Gaza and the West Bank prior to 1967, what then could possibly have motivated Egypt to close the straits of Tiran to Israeli shipping—which constituted an Act of War—and to mobilize its army, along with those of Syria and Jordan, on Israel's borders? Egyptian Radio's "Voice of the Arabs," broadcasting on the eve of the war, provides a pretty straightforward answer: the "extermination of Zionist existence."
Historian Michael B. Oren, author of Six Days of War: June 1967 and the Making of the Modern Middle East, who has studied the original Arabic documents, unearthed the details of a certain "Operation Tariq," which reveal that the three belligerent countries had planned "the expulsion or murder of much of [Israel's] Jewish inhabitants in 1967."
Ruth Wisse puts the case succinctly in her Jews and Power, an essential book on the so-called "Jewish Question": "Since the disputed territories were Israel's as a result of Arab aggression, they could not retroactively have become a cause." In repulsing the Arab invaders and conquering Gaza and the West Bank in the process, Israel asserted a claim universally justified by the laws of war.
Consequently, from whatever angle we want to examine the issue, whether historically, juridically or militarily, the argument against Israel does not hold water. The legitimacy of the Israeli right to settle in the Territories or to regard them as an Israeli allodium does not derive, as many have contended, often derisively, from a divine injunction or the world's bad conscience.
"We have really such an overwhelming case," wrote Arthur Koestler in an aide mémoire to Victor Gollancz, "that it is idiotic to base our claims on Bergen Belsen or Abraham's interview with God." Further, when in 1994 Israel and Jordan signed a peace agreement, Jordanian control of the West Bank was relinquished to Israel and not to the Palestinian Authority; again, from the legal perspective, there is no—and never was—an Israeli "occupation," as understood by the political echelon, the press and a profoundly misinformed public. This line of reasoning may be regarded by Israel's critics as merely academic or inapplicable in the context of realpolitik; but if we believe in the validity of international law—which, be it said, is often mobilized against Israeli interests—then we have no logical or ethical alternative but to endorse it fully. Otherwise we are in bad faith.
The common tendency is to regard such issues and provisions as mere legalisms that do not impact "facts on the ground"; yet when adduced against the Israeli brief, they are suddenly transformed into legalities. One can't have it both ways. This is the essential point. If the concept of international law is to have any meaning at all, if its dispensations are understood to be valid and to apply in all circumstances, and if we intend to be consistent as moral agents and political actors, then we have no option but to accept the conclusion that Israel is not an "occupying power," that the territories in question are its legitimate possession, and that it has every right to dispose of these lands as it sees fit. If we reject this conclusion, not to put too fine a point on it, we are merely cynics wedded to the politics of expediency or temporizers divorced from the dictates of conscience. Cosi fan tutte, perhaps; nevertheless, it remains a scandal.
What we might call "the argument for Israel" is not a question of hairsplitting exegetics which can be readily disregarded in a real-world context—and in actuality, the nuances are by no means that subtle to begin with. The last institutional entity to exercise legal sovereignty over the area in dispute was the League of Nations, which upheld the terms and conditions of the Balfour Declaration. However we may like to fudge the issue, the constitutional authority of the League of Nations remains intact to this day. In the historical overview and under the auspices of international law, "Palestine," all of it, is the Israelitic homeland; by the terms of the Balfour Declaration, the League of Nations Mandate, and the various treaties which ensued and which are still juridically in effect via the United Nations' own Charter, it follows inescapably that the West Bank, the Golan Heights and, for that matter, Jordan itself, are Israel. It is plainly too late to file a writ of complete replevin, but to insist that we are only dealing with finespun distinctions or a blizzard of clauses and protocols that have no bearing on practical matters is only a way of throwing a sop to the devil in the details, holding the rule of law in contempt, playing selectively with facts and principles to foster an agenda and thereby exempting ourselves from the labour of interrogating our biases.
Perhaps the most conspicuous instance of this abortion of truth was furnished by the International Court of Justice in The Hague which found against the Israeli security fence and West Bank settlements without examining the full dossier of relevant documents, many of which were suppressed and others misread. But to reiterate, international law is international law; it cannot be applied unevenly or preferentially without damaging or abrogating the very concept itself.
It must be bluntly said that the anti-Israeli consensus concerning the Territories is tantamount to the annulment of the principle of law, to revoking what is commonly understood to be imprescriptible. But Israel is not the only victim of such chicanery; the convention of international law is equally damaged, if not vitiated. Counter-intuitive as this may sound, it is indisputably the case. The most mordant irony of all is that the very institutions, such as the ICJ and the United Nations itself, which are predicated on the existence and sanctity of international law and which are sworn to preserve it against all depredations, have become its prime despoilers and are no better—and possibly worse, given the authority they command—than the world's rogue regimes which routinely flout its provisions.
It is only fair to say that there are occasional rays of light that penetrate a desolate cloud cover. Every now and then one comes across an enlightened Muslim cleric who declares his support for the Jewish right to the West Bank. Sheikh Abdul Hadi Palazzi, Director of the Cultural Institute of the Italian Islamic Community, affirmed that "the territories of Judea and Samaria are the home Allah granted to the Jewish people" and that Jews are "morally obligated to struggle for the integrity of the Land of Israel." Palazzi's argument is obviously not a jurisprudential one. For him, the Land was God's gift to Isaac; the descendants of Ishmael "received plenty of territory in other locations." Be that as it may, such sympathetic voices are extremely rare and, regrettably, will not significantly influence, in Palazzi's words, "the nations of the world…once again preparing bad days for the Jewish people" (IsraelNationalNews.com, December 21, 2007).
The momentum of public opinion, abetted by an unending media campaign and the relentless ideological blitzkrieg of the intellectual and political classes against Israel, has now become almost irreversible. Many Israelis, chiefly of the Left, the "Peace" movements and the emasculated political establishment, have also fallen for this presumed concession to reality and sanctioned a complete reversal of historical provenance and de jure merit. Such Jews have, sadly, forfeited the traditional practice of midrash, or the habit of close reading that fills in textual gaps, which would have served them in good stead today, just as their counterparts in the democratic West are in default of their own liberal heritage founded on the rule of law, statutory precedent and the binding nature of contractual indenture. For a pervasive falsehood has been accepted as an ineluctable fact so that even the mere possibility of principled reconsideration seems like a will o' the wisp. People know the truth. Israel is guilty, the land belongs to the Arabs, and the world is flat.
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