Image courtesy of Gallup.
The following is an opinion contribution and reflects the author’s views alone.
A few months ago, I took an illuminating seminar through the Tikvah Fund, a self-described “philanthropic foundation and ideas institution committed to supporting the intellectual, religious, and political leaders of the Jewish people and the Jewish State.” The course, taught by Eugene Kontorovich, a George Mason University Scalia Law School professor and director of the school’s Center for the Middle East and International Law, was titled Israel and International Law. In it, Professor Kontorovich explored the implications of Israel’s policies in International Law.
The course was particularly shocking to me for two reasons. First, legally, the dispute over Israel’s established borders–specifically the West Bank–holds no water. I was taken aback by the facts on the subject, which led me directly to my second revelation: this information is not common knowledge. That is precisely why I am authoring this piece. I hope to do my best to clearly lay out an overview on the subject of Israel and International Law.
From 1516 to the First World War, the territory was one of many provinces comprising the Ottoman Empire. Upon the Ottoman capitulation to the allies, the British established military rule followed by civil rule under the Mandatory Authority of Palestine granted to them by the nascent League of Nations. In the words of Article 22 of The Covenant of the League of Nations:
“Certain communities formerly belonging to the Turkish Empire have reached a stage of development where their existence as independent nations can be provisionally recognized subject to the rendering of administrative advice and assistance by a Mandatory until such time as they are able to stand alone. The wishes of these communities must be a principal consideration in the selection of the Mandatory.”
The mandate now christened Palestine–recalling the territory’s Roman provincial name extended from the Mediterranean Sea to the western reaches of Mesopotamia and south from Arabia to the new French Mandate of Syria (until the Kingdom of Transjordan was carved out of this large entity in 1921).
The League of Nations declared that out of this mandate, a Jewish national home was to be reconstituted. This declaration did not bestow any special right on the Jews in Mandatory Palestine at the time nor did it grant them unique political powers. All it did was end the Ottoman Empire’s limit on Jewish emigration, thereby allowing Jews to make their way to the territory. The momentous three decades that followed saw British imperial fortunes wax and then cataclysmically wane with the conclusion of the Second World War. In 1948, Britain no longer had the will or the wealth to maintain its presence, so it departed. It was then that Israel declared its independence.
In international law, there is a principle in international law referred to as Uti Possidetus Juris, literally translating to “as you possess,” a Roman legal doctrine first cited in private municipal law.
Uti Possidetus Juris maintains that when a new country is created where there was not a separate country previously, the borders of the new country are identical to the borders of the last top-level geopolitical entity in that territory. Professor Kontorovich illustrated this concept with the example of Crimea, which the international community regards as currently occupied by Russia but truly part of Ukraine. The reason for this international consensus is that Ukraine declared independence upon the dissolution of the USSR–the last top geopolitical entity in the territory–thus taking on boundaries that included within it the newly-constituted independent Ukraine.
In May 1948, Israel declared its independence, meaning that by the accepted legal principle of Uti Possidetis Juris, the new state inherited the same borders as Mandatory Palestine, which came before it, specifically the land from the Jordan River to the Mediterranean Sea. It is important to note that Palestine did not declare statehood when Israel did. Instead, they willingly handed their fate to invading armies of a combined Arab force drawn from neighboring states. If the Palestinians had declared independence, then the two forces would have fought for the power to govern the new state with borders set by the mandate. However, that legal fight for governance never materialized. Therefore, when we apply the rule of international law that is used to determine the borders of all new countries, Israel must be recognized as the only successor entity to the mandate.
Now, let us turn to the legal weight of the U.N. Partition Plan. After the British plan to evacuate the territory that would become the State of Israel became clear, it seemed that Israel’s neighboring Arab countries would–as they boasted–wipe out the Jews upon Israel’s independence declaration. As a result, the United Nations created a Special Committee on Palestine (U.N.SCOP) and sent in authorities to author a report to avoid bloodshed and instead maintain peace in the region. U.N.SCOP recommended a plan to partition the territory into a Jewish state and an Arab state, with Jerusalem becoming a trusteeship of the British. This plan was not legally binding for two reasons, the first being that was denied by the British and the second being that the U.N. simply does not possess the power to legislate.
East Jerusalem and the West Bank
Many argue that Israel lost its claim to East Jerusalem and Judea and Samaria (the West Bank) in the 1948 War of Independence in which Egypt occupied the Gaza Strip and Transjordan captured East Jerusalem, Judea, and Samaria. As a result of Uti Possidetus Juris, however, these were simply military occupations; Egypt and Jordan held no legal (or historic) claim to these territories.
In 1967, months of escalating tensions along its borders and deployment of large concentrations of opposing forces under a unified Arab command culminated in closing off the only waterway leading out of Israel’s southern port of Eilat. This act of war triggered Israel’s pre-emptive attack, leading to its retaking of the Gaza strip from Egypt and Judea and Samaria from Jordan in the Six Day War. In doing so, Israel was reconstituting territory over which it already had sovereignty under Uti Possidetis Juris.
Many who oppose Israel’s right to exist in Judea and Samaria claim that Israel is violating Green Line Borders by remaining there. However, these so-called “Green Lines” were simply green lines on an armistice map acknowledging the status quo of forces at the moments the guns fell silent on a predetermined day and hour in 1949. Many use this document to divide Israel and the so-called disputed territories of East Jerusalem, Judea, and Samaria. This assertion is baseless because the treaty simply created a temporary cessation of hostilities between the parties involved. The lines of this document never represented national boundaries and in no way signaled that Israel was consenting to relinquish its territory. Nor should it have, because aggressive use of force cannot change the borders of existing countries.
Another source of contention is U.N. Security Resolution 242, which calls for the “withdrawal of Israel armed forces from territories occupied in the recent conflict.” The ambiguity in the language was intended to serve as a basis for future negotiations and adjustments. It says that Israel should withdraw from territories. It doesn’t say the territories or all territories. Professor Kontorovitch made the very important point that the IDF has already withdrawn its forces from over 95% of the territory claimed by Israel in 1967, more than satisfying the requirement put forth by the resolution. Even if one was to disregard this line of argumentation, Resolution 242 would not stand as a cogent argument against Israel’s presence in Judea and Samaria. No resolutions condemning Israel staying in the territories are legally binding.
Many have expressed their disdain for Israel’s decision to remain in the territories. These opinions, while widely circulated, are in no way legally binding. In the realm of international law, states can only be bound to compacts and organizations that they consent to join. Thus, groups like the International Court of Justice (ICJ) only adjudicate between countries that grant them such powers. Israel is not one of them, and ‘Palestine,’ despite the best acrobatics to define it as a sovereign state, is simply not (yet) one and thus has no standing before the Court by the ICJ’s own rules.
Many make the argument that the Israeli settlements violate the Geneva Convention. The Geneva Convention concerns the treatment of civilians in occupied territory during wartime. Critics of Israel point to Article 49 of the Geneva Convention, which protects against ethnic cleansing, as the basis for the argument. Article 49 states that “The occupying power shall not deport or transfer parts of its own civilian population.” This clause forbids the occupying power from acting; individual civilians acting of their own volition (such as individual Jews) could not violate this article. Further, the clause does not say that a power should keep its citizens from entering a territory. Thus, to violate this clause, the so-called occupying power—which Uti Possidetus Juris has already established Israel not to be—would have to act upon a people to cause their mass movement out of an area. Moreover, the phrase “part of its own civilian population” suggests sizable demographic groups, not individuals. Thus, large numbers of people would have to be transferred or deported to violate this article. The West Bank witnesses small amounts of emigrants, not exoduses.
In the current climate, the status and governance of Israel is about as divisive an issue as it gets. Terms like “occupation” are employed for dramatic effect and with little factual foundation. The true picture is much more nuanced and clear and does not warrant anti-Jewish diatribes, medieval blood libels, mindless boycotts, and vicious demonizations reserved for no nation on earth except Israel.
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