THE LEGALITY OF ISRAELI SOVEREIGNTY OVER JUDEA AND SAMARIA ACCORDING TO INTERNATIONAL LAW

T. Belman. This is very well written and very clear. Even so it is a summary of a larger article which may be found at the link.

By Karen Stahl-Don, LLM, MA

Summary: The Legality of Israeli Sovereignty over Judea and Samaria According to International Law

I. Introduction

The purpose of this report is to explain that international law supports Israel’s claim to sovereignty over Judea and Samaria and to debunk the claim that Israel is illegally occupying that land. This report demonstrates that the international community’s pervasive belief that Israeli settlements are illegal under international law contradicts the simplest and most logical reading of the documents through which international law has traditionally been construed. The basic legal historical documents speak the truth to all who choose to read them.

It is common to analyze the issue of sovereignty and legality of the settlements by either attempting to simply ignore history and deal with the present situation today. Many begin in 1947 with the UN General Assembly Resolution 181 “partition plan”, or with the Six-Day War in 1967. Any such analysis is a mistake to Israel’s great detriment as any starting point that omits the World War I era obscures the period during which the international community established the modern foundations of Israel’s sovereignty in Judea and Samaria. Failure to evaluate historical events and documents from this era will inevitably result in the improper application of international law and inaccurate conclusions.

Moreover, any narrative that circumvents the legal and historic events of the WWI era lends itself to the persistent misconception that modern Israel was created as a guilt response to the Holocaust. In fact, the Balfour Declaration and relevant documents preceded the Holocaust by almost three decades. These international documents clearly predate the Holocaust and acknowledge the Jewish nation’s perpetual physical and spiritual connection to Israel. Moreover, a post-WWI starting point facilitates glossing over the historically documented fact that although expelled and exiled, a Jewish presence nevertheless continuously remained in Israel from time immemorial.1 In fact, since 1830 Jews have constituted a majority of the population in Jerusalem.

This report develops the following analysis of international law:

1. Beginning with the Balfour Declaration in 1917, the international community supported the return of the Jewish people to reconstitute their national home in Palestine. The Balfour Declaration was incorporated into the British Mandate for Palestine (the “Palestine Mandate,” “the British Mandate,” or “the Mandate”). The International Court of Justice recognized the international Mandate as an international agreement with the status of a treaty.

2. The international community committed to creating a Jewish State in the entire territory designated in the Palestine Mandate, which included Judea and Samaria. Article 6 of the Mandate explicitly encourages Jewish settlement on this land.

3. Israel’s recognition as an independent state triggered the termination of the Palestine Mandate.

4. The Mandate, an offspring of the law of Trusts, was always intended to be temporary and to terminate when its mission was accomplished.

5. The explicitly stated mission was to facilitate the return of a sufficient number of Jews to their historic homeland in Palestine in order to create a Jewish National home with the ability to stand on its own.

6. Upon international recognition that this mission was accomplished, the Mandate terminated and, in accordance with the terms set forth within, the Jewish people acquired sovereignty over all of Israel—including Judea and Samaria.

7. Furthermore, the fact that Israel acquired sovereignty rights in this territory upon termination of the British Mandate—and subsequently liberated this territory from illegal Jordanian occupation during the Six-Day War—establishes the inapplicability of de jure (official, obligatory) application of the Hague and Geneva Conventions to Judea and Samaria.

8. To date, no binding international agreement or event has altered the inclusion of Judea and Samaria within the borders of the Mandate. No valid binding agreement or negotiation (including the “partition plan” UN Resolution 181 of 1947, Resolution 242, the Oslo Accords, the 2003 “Road Map for Peace”)has altered the borders of Judea and Samaria that were set down in the Mandate. The Israeli government has not altered or relinquished the sovereignty acquired upon termination of the Mandate.

II. International Acceptance and Support of the Balfour Declaration

Historical documents demonstrate a continuous Jewish presence in Israel since Biblical times. However, modern international recognition of the Jewish right to return to Israel began with the Balfour Declaration in 1917. In that Declaration, the British government stated that it favorably viewed the establishment in Palestine of a national home for the Jewish people, and would use its best effort to facilitate its creation. Numerous countries approved the Balfour Declaration itself, which was then prominently included in multiple international documents, including the 1920 Sévres Peace Treaty between Turkey and the Allies, which was signed by the Ottoman Sultan.2 Most important for the purpose of tracing relevant international law, the Principal Allied Powers explicitly defined the realization of the Balfour Declaration as the purpose of the Palestine Mandate. Specifically, on April 25, 1920, at the San Remo Conference, representatives of the four Allied powers of World War I—Britain, France, Italy, and Japan—distributed the Mandate for Palestine to Great Britain, stating that Mandatory (trustee) would be responsible for putting the Balfour Declaration into effect. It should also be emphasized that President Woodrow Wilson approved the Balfour Declaration before it was published, and the French and Italian governments also publicly endorsed the Declaration. Similarly, President Truman expressed approval of the Balfour Declaration, “explaining that it was in keeping with former President Woodrow Wilson’s principle of ‘self-determination.’”

III. The Creation of the Mandate System

It is essential to understand the history and function of the Mandate system. The victorious Allies found themselves in control of, inter alia, the former Ottoman and German territories at the end of World War I. Some Allied powers wanted to annex that land. Others, however, wanted to provide the inhabitants with self-determination. The Mandate system was a novel compromise between those two philosophies. The League of Nations Covenant, which created the Mandate system, forms the preamble of the Peace Treaty of Versailles and the other WWI peace treaties. Article 22 defined the Mandate system as a “principle of guardianship over certain undeveloped peoples.” Under the supervision of the League of Nations, the enlightened nations would act as guardians to these less advanced peoples temporarily until they could adapt to the “strenuous conditions of the modern world” and independently stand on their own. The Mandate system was viewed as a fairly radical institution at the time because this innovative “trust system” was designed to step up decolonization and promote self-determination in the region.

For this reason, it is ironic that the Mandate system, introduced as a vehicle to affect self-determination, is today attacked as being colonialist. It should be noted that those who argue against the legitimacy of the Palestine Mandate should also be questioning the legitimacy of Jordan, Syria, Lebanon, and Iraq, all of which were created through the same Mandate system. Indeed, the entire modern Middle East is comprised of nations that were created under a system of primarily French and British protectorates, redrawn borders, and colonies. Moreover, the principle of intertemporal law requires that acts be evaluated through the lens of the international law and mores of their own time. According to those standards, the Mandate system was progressive and enlightened in striving to achieve the autonomy of the territories. Commentators at the time, such as D. Campbell Lee in 1921, lauded the Mandate system as a “Charter of Freedom” and took “special pride” that Britain would faithfully apply the principles of trusteeship and thus fulfill the “sacred trust reposed in them.”

Although Mandates generally attempted to advance the autonomy of populations residing in the newly-acquired territories, the Palestine Mandate was unique. This Mandate was intended to develop the self-determination of the Jewish people, who did not constitute a majority in Palestine at the time of the Mandate’s formation. The Palestine Mandate specifically recognized “the historical connection of the Jewish people with Palestine [and] the grounds for reconstituting their national home in that country”. Thus, the international community was acknowledging the unique status of this displaced indigenous population returning to the land from which it had been expelled. Multiple provisions in the Mandate explicitly reflect the objective of creating a Jewish majority in what was recognized as the Jewish national homeland.

In short, the League of Nations and the international community viewed the Jewish people as a displaced nation worthy of international support in their return to the homeland from which they had been exiled. The Peel Commission confirmed the fairness inherent in granting self-determination to the Jewish nation, as “all other civilized peoples had a homeland somewhere in which they were the overwhelming majority, a country they could call their own, a State which gave those of them who lived as a minority in other States a more equal footing…[for the Jews], that land could only be Palestine.”

It is worth noting that the Mandate system applied Arab self-determination throughout the Middle East with Palestine as the solitary Ottoman territory in which the international community decided not to recognize Arab political autonomy. Moreover, it is often omitted from the narrative that the Palestine Mandate originally included the entire area of Jordan, the latter having been effectively severed from the Jewish area in 1922. Thus, the territory originally defined in the Palestine Mandate has already been divided once to allow for even greater Arab self-determination. This historic fact, often ignored, clarifies to an even greater extent that the final amended version of the Mandate for Palestine designated all of the remaining territory west of the Jordan River as the Jewish National Home – including Judea and Samaria.

IV. The Jurisprudence of the Mandate System – International Mandate as a “Trust”

While the juridical nature of a Mandate has been a continuing topic of legal discussion, the most prominent legal consensus defines the institution of the international mandate as analogous to a trust.

This analogy is derived from four major points:

First, Article 22 defines the Mandate system as a “sacred trust of civilization,” and designates that “securities for the performance of this trust should be embodied in this Covenant.” Second, the designated mandated territories were never considered to be in possession of the Mandatory trustee or part of the Mandatory’s country. Rather, the Mandatory power was granted authority to act solely within the dictates of the Mandate on behalf of the international community, equivalent to a guardianship for the benefit of a minor, designed from the onset to be temporary and to terminate when the infant reaches the age of majority. Hence, the designated peoples of a Mandate are compared to the beneficiaries of a trust. Third, jurists have considered sovereignty of the Mandated territory to be like the res (property) of a trust – that is, sovereignty was suspended until the beneficiaries demonstrated the ability to “stand on their own.”

Thus, the Mandate system introduced a modified concept of sovereignty. The Mandatory power, like a trustee, “obtains the guardianship of a people, and not the ownership and dominion of a territory; and the sovereignty is suspended or held in trust” for the eventual benefit of the Mandate’s designated population. Once the intended goal of a Mandate has been achieved—that is, the designated peoples are deemed able to govern on their own—the Mandate terminates, at which point sovereignty, which has been suspended or held in trust, vests in the newly independent state. Termination of the international mandate results in the accrual of sovereignty to the government of the designated beneficiaries.

It is worth noting that the obligation to facilitate a Jewish National Home in Palestine constituted a binding international agreement. Fifty-one countries comprising the League of Nations in 1922 unanimously ratified the language of the Mandate, contained in the Treaty of Versailles and the other international WWI peace treaties. Under Article 20 of the Covenant of the League of Nations, all nations “solemnly undertake that they will not hereafter enter into any engagements inconsistent with the terms [of this Covenant],” and if any member has “undertaken any obligations inconsistent with the terms of this Covenant, it shall be the duty of such Member to take immediate steps to procure its release from such obligations.”

As a result, it can be stated that all League member nations voted for and adopted the Mandate for Palestine in 1922 and obligated themselves to facilitate the creation of a Jewish National Home in all of the territory, including Judea and Samaria. In addition, on two separate occasions, the United States government formally supported the Mandate’s goal of establishing a homeland for the Jews in Palestine, despite the fact that America never became a member of the League of Nations.

Thus, the Mandate for Palestine created a binding international treaty—committing all members of the League of Nations, and also, by consent, the United States—to expedite the establishment of a homeland for the Jewish people in all of the territory west of the Jordan River. Hence, under the terms of the Mandate – and in line with the legal concept of a trust as reflected in the language in Article 22 of the Covenant – the Jewish people were slated to receive sovereignty over all of Mandatory Palestine when they were deemed able to “stand by themselves.”

v. The Legal Invalidity of UN General Assembly Resolution 181 (The “Partition Plan”)

The League of Nations ceased to exist as a legal entity on April 20, 1946. The League transferred virtually all of its duties as an international institution to the United Nations, established on October 24, 1945. Crucially, as the International Court of Justice has ruled, the Mandates survived and did not terminate upon the League’s demise. The Palestine Mandate had created an international status, “valid in rem,” (a right that is valid ‘against all of the world’) designating the borders of the Mandate territory as the national home of the Jewish people, while guaranteeing the rights of the non-Jewish population specifically as a protected minority within the Jewish state. This status and these rights survived the demise of the League of Nations.

On November 29, 1947, the UN General Assembly passed Resolution 181, which proposed the termination of the British Mandate and the partitioning of Palestine into two states – one Jewish and one Arab. The Jews accepted this plan and the Arabs did not. Nor did the Arabs declare a separate Palestinian state. Instead, they launched a war. In addition, although the Resolution requested the Security Council to execute the plan, the Security Council never did so. As a result, with no agreement and no implementation, Resolution 181, never took root and thus, could not affect the borders set forth in the Mandate.

Despite the fact that Resolution 181 is void, some entities continue to promote this proposal as a valid and recognized partition plan. This interpretation is wrong on multiple levels. First, Articles 10 and 14 of the United Nations Charter clearly indicate that the General Assembly can only make non-binding recommendations. Second, the name of the recommendation was “Plan of Partition With Economic Union“(our emphasis) – with partition being only one aspect of the lengthy, elaborate, and multi-point resolution, premised upon extensive economic cooperation and peaceful co-existence. Third, the Jewish acceptance of Resolution 181 in 1947 was an agreement of its time, one that assumed Arab cooperation with the entire Partition Plan. It is, therefore, absurd to argue that the partition portion of the resolution remains on the table today, with Jewish acceptance in 1947 constituting consent to division today. Any such conclusion flies in the face of logic and the most basic principles of general and international law. As a void and non-binding document, Resolution 181 failed to alter the legal status of any of the mandated territory and lacks legal significance.

VI. Termination of the Mandate Resulted in Israeli Sovereignty Over Judea and Samaria

On May 15, Britain withdrew as Mandatory. Importantly, a Mandate does not terminate simply because a Mandatory chooses to renounce its authority prior to the fulfillment of its purpose and does not affect the existence or essence of already created rights. Moreover, the Mandatory trustee never possessed the authority to decide on the termination of the Mandate or unilaterally alter its terms, any more than a trustee assigned with administrating a guardianship, estate or res (property) would have authority to affect the legal rights of the beneficiaries.

At midnight on May 15, 1948, the State of Israel declared its independence – and five Arab armies immediately invaded. In the midst of this war, Jordan seized control of Judea and Samaria. The fighting ended following a series of Armistice (ceasefire or truce) agreements, each containing explicit signed provisions that there be no international ramifications or political conclusions adduced from these lines. These ceasefire lines became known as “the Green Line.”3 Jordan proceeded to annex Judea and Samaria, the legality of which was recognized only by Britain and Pakistan.

In accordance with the well-recognized concept of ex injuria jus non oritur—illegal acts cannot create law or produce legal rights—Jordan’s illegal seizure of Judea and Samaria did not affect the sovereignty of the territory. As a result, neither Jordan’s illegal annexation of Judea and Samaria, nor the subsequent Armistice Agreements affected the legal status of the Mandate territory west of the Jordan River.

However, international recognition of Israel’s declared independence did alter the legal status of the Mandate territory. This validation terminated the Mandate and granted the Jewish people the sovereignty that had been previously held “in abeyance.” The purpose of the Palestine Mandate was realized when the Jewish population was a majority—or at least large enough to be internationally recognized as capable of building a country that could “stand on its own.” As Campbell Lee stated in 1921, “The sovereignty of a Mandate area is in suspense pending the creation of a new state, pending the time when the people are able to stand alone.” Once this occurred, the Jewish people accrued the res (object) of the Mandate-trust—i.e. sovereignty—in all of the territory west of the Jordan River, with the Mandate constituting the only legal and internationally recognized boundary.

Thus, the British Mandate terminated—and the Jewish people received sovereignty over Palestine in accordance with the terms dictated in the Mandate—the moment that the State of Israel received international recognition as an independent state. This recognition was documented on May 11, 1949, when the United Nations decided that “Israel is a peace-loving State” and voted to admit Israel as a full member.

The conclusion that Jewish sovereignty took effect within the borders of the Mandate is inescapable when tracing relevant international law and analyzing the jurisprudence and case law of the era, as documented and described in more detail in the report. Jewish sovereignty in Judea and Samaria is also the logical application of the principle of uti possidetis juris, a critical concept in international law that “defines borders of newly sovereign states on the basis of their previous administrative frontiers.”

VII. The Inapplicability of The Hague and Geneva Conventions

On June 5, 1967, Israel launched a war of self-defense against the Egyptian army, triggering the Six-Day War. In the midst of this war, the Israeli army liberated Judea and Samaria from Jordan’s illegal rule. Recognizing the delicate and political nature of Israeli administration of these territories—and in hopeful anticipation of a possible and imminent peace agreement—Israel refrained from exercising its legal sovereignty over Judea and Samaria. Instead, the government chose to de facto (for practical purposes) apply the “humanitarian provisions” of the international conventions designed for “belligerent occupation of foreign territory”: the 1907 Hague Regulations and the 1949 Fourth Geneva Convention. Moreover, as per Article 43 of the Hague Regulations, the government chose to leave in place most of the (primarily Ottoman and Jordanian) civil law that was in effect at the time.

It must be stressed that Israel’s de facto (practical and pragmatic) application of these provisions implies neither consent that these rules have de jure (obligatory, legal) applicability nor concession on any level. Furthermore, the argument that these regulations apply de jure is invalid. Israel received sovereignty rights in these areas upon termination of the British Mandate. Thus, labeling Israel’s presence as “belligerent occupation” is faulty. Nor does the fact that Israel has thus far decided to exercise its sovereignty only in certain areas of Judea and Samaria indicate that Israel has forfeited or acquiesced its legitimate right to apply sovereignty within the entirety of its legal borders.

VIII. Conclusion: The Mandate – A Basis for Sovereignty Under International Law

The British Mandate for Palestine terminated over sixty years ago. Upon termination, sovereignty vested in the Jewish state. Thus, this basic document—first set forth and agreed upon by the Principal Allied Powers in 1922—established the modern-day legal status of Judea and Samaria, and remains decisive today. In fact, the purpose of the Mandate has been fully executed and realized. Israel has become a Jewish homeland, civil and religious rights of the non-Jewish minority are protected, and access to the holy places in Jerusalem is guaranteed to all religions.

An international agreement, constituting a binding international treaty “in fact and in law,” designated Palestine as the intended national home of the Jewish people, and recognized the territory of “Palestine” as including the area of Judea and Samaria. No valid treaty, document, or resolution has altered this reality. All discussion can be premised upon the knowledge that Israel retains legal sovereignty over Judea and Samaria, and thus, a Jewish presence and Jewish communities in the area are legal according to international law.

1. Jews saw Israel as their home throughout their exile, central in Jewish prayers and liturgy, expressing their connection and striving to return: “When the Lord brings about the return to Zion, we will be like dreamers. Our mouths will be filled with laughter and our tongues with songs of joy…” (Psalm 126, recited after meals every Sabbath and holiday.) Return to Israel and Jerusalem have remained central in Jewish prayer, blessings, poetry, songs and longing throughout the exile.

2. In the Treaty of Sévres, Turkey relinquished ownership of most of the territories of the former Ottoman Empire—including Palestine—to the League of Nations. The Treaty was not formally ratified due to the overthrow of the Ottoman Sultan during the revolution led by Kamal Ataturk. Ataturk negotiated the Lausanne Treaty in 1923, which was signed and ratified.

3. These demarcation or armistice lines, drawn in green ink, continue to carry great impact, despite the lack of any rational or legal basis whatsoever for such prominence or status as a political border.