Sunday, May 06, 2012

Benzion Netanyahu And Why The West Bank Is Part of Israel According To International Law

The existence of Israel in accordance with international law--including Jewish rights to Gaza and the West Bank-- precedes the 1967 War, and the 1948 War. The legal basis for the reestablishment of the State of Israel goes back to the Treaty of Versailles.

Following WWI, the Treaty of Versailles established a system of mandates for parts of the Ottoman Empire to aid them in becoming independent. That is how Lebanon, Syria and Iraq came into existence--and ultimately Jordan too. The mandate for the Palestinian territory was for the re-establishment of a Jewish home, putting the Balfour Declaration into effect, based on "the historical connection of the Jewish people with Palestine and to the grounds for reconstituting their national home in that country."

Here is the sequence of events:

  • On April 25, 1920--the mandate for Palestine was given to Great Britain to fulfill at the San Remo Conference.
  • On June 24, 1922--the Council of the League of Nations ratified the mandate itself.
  • In March 1925--a special American-British Palestine Mandate Convention was ratified
    (March 2, 1925 by President Coolidge and March 18 by Great Britain).
As a result of that ratification, the agreement of both the US and the League of Nations was required in order to make any modification to the mandate.

And the  fact that the League of Nations no longer exists does not change anything--as the UN Charter itself states in Article 80:
Except as may be agreed upon in individual trusteeship agreements, made under Articles 77, 79, and 81, placing each territory under the trusteeship system, and until such agreements have been concluded, nothing in this Chapter shall be construed in or of itself to alter in any manner the rights whatsoever of any states or any peoples or the terms of existing international instruments to which Members of the United Nations may respectively be parties.
And now historian Jerold Auerbach notes that Benzion Netanyahu Helped Put Article 80 in the U.N. Charter:
After World War II, Benzion Netanyahu, along with Irgun activist Peter Bergson, nephew of Mandatory Palestine Chief Rabbi Abraham Isaac Kook, and liberal American Rabbi Stephen S. Wise, drafted an article for inclusion in the United Nations Charter that could yet save the Jewish state.

The article became known as the “Palestine clause” for the protection it afforded to the right of Jewish settlement throughout the Land of Israel west of the Jordan River. Article 80 extended the guarantees to Jews afforded by the League of Nations Mandate for Palestine following World War I. The Mandate had recognized “the historical connection of the Jewish people with Palestine” and “the legitimacy of grounds for reconstituting their national home in that country.” Jews were guaranteed “the right of close settlement” throughout Palestine.

...Article 80 was unaffected by the Six-Day War, which obliterated Jordanian control over Judea and Samaria (its “West Bank”). According to Security Council Resolution 242, Israel was permitted to administer that land until “a just and lasting peace in the Middle East was secured.” That has not yet happened, to be sure, but even then, Israel would only be required, under its carefully drafted language, to withdraw its armed forces — civilians were not mentioned — from “territories,” not from “the territories” or “all the territories.”

The “Jewish right of settlement,” according to Eugene V. Rostow, then America’s state undersecretary political affairs, “is equivalent in every way to the right of the existing [Palestinian] population to live there.”
In fact, The International Court of Justice itself has consistently held that the League of Nations mandates continue to have force and are not abrogated by the dissolving of the League of Nations:
When the League of Nations was dissolved, the raison d'etre and original object of these obligations remained. Since their fulfilment did not depend on the existence of the League, they could not be brought to an end merely because the supervisory organ had ceased to exist. The Members of the League had not declared, or accepted even by implication, that the mandates would be cancelled or lapse with the dissolution of the League.

The last resolution of the League Assembly and Article 80, paragraph 1, of the United Nations Charter maintained the obligations of mandatories. The International Court of Justice has consistently recognized that the Mandate survived the demise of the League.
Bottom line: the Palestine Mandate which provides for the sovereignty of Israel in accordance with international law continues to be in force and binding to this day--and predates the UN.

And this Jewish sovereignty over the territory outlined by the Palestinian Mandate includes Judea and Samaria--land that is known today as the West Bank.

Whether a "Palestinian" state will some day exist in Judea and Samaria remains to be seen--but if it does, it will be because Israel agreed to cede its land to the Arabs to make a state.

And Israel will only do that on the basis of negotiations--but don't expect Israel to wait forever for Palestinian Arabs to finally agree to sit down and agree to negotiate with Israel.

Detailed information about Israel's rights in accordance with international law can be found in This Land Is My Land--"Mandate for Palestine": The Legal Aspects of Jewish Rights by Eli Hertz

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