Judea and Samaria are not “unallocated sovereignty”
By Ted Belman.
In the last few days, David Singer used this term to refer to the “West Bank” territories properly called Judea and Samaria, not for the first time. I had heard this term before and had trouble understanding what it mean and its origin. So I googled the phrase.
Howard Grief, of blessed memory referred to the phase many times in his groundbreaking, The Legal Foundation and Borders of Israel Under International Law:. When you go to this link, it is easy to find all the times it is mentioned in the book.
Howard was a Canadian Lawyer who made aliya. We often met and corresponded. He was the emmanant authority on Israel’s legal status.
I then added “Grief” to my search and came up with the motherload. What follows is a letter written by him to Dr Joel Fishman, another friend of mine, which is very informative.
September 3, 2009
Dr. Joel Fishman
[..]
However, for the sake of accuracy, I would like to point out one major error in Gurfinkiel’s article that affects me personally.
Gurfinkiel refers to Professors Eugene Rostow and Julius Stone as his sources for stating the fact that “Israël n’est pas un occupant, mais un souverain légitime” in regard to the “zones conquises”, i.e. Judea, Samaria and Gaza, which in the original Israeli terminology were called the “held territories” of Eretz-Israel both in 1948 and 1967. Neither Rostow nor Stone, great jurists though they may have been, ever in fact made this assertion as Gurfinkiel says. On the contrary, Rostow said the very opposite while Stone raised it only as a possibility (p.115 of his book: Israel and Palestine: Assault on the Law of Nations – 1981). Furthermore, he stated that “in the days of the League of Nations … no conclusion emerged, despite herculean labours, as to the location of territorial sovereignty in Mandated Palestine.” (p.122)
I have read a good many of the articles written by both jurists. Rostow referred to the “held territories” as the “unallocated territories” of the Mandate for Palestine based on information he received from my late departed friend, Dr. Paul Riebenfeld of New York who originated that term. I personally told Dr. Riebenfeld more than once that this phraseology was wrong since these territories had in fact been allocated to the Jewish People at the San Remo Peace Conference on April 24-25, 1920. Rostow even believed that those territories were “occupied territories” subject to the provisions of UN Security Council Resolution 242, a far cry from saying they were under Israeli sovereignty.
Julius Stone, who was a staunch advocate of Israel, also never claimed as already noted that the “held territories” were under Israeli sovereignty. Like Rostow, he deemed them to be “residual territories” of the Mandate whose status had never been officially determined. In his excellent book he even stated that had the Arab side accepted the UN Partition Resolution of November 29, 1947, the Resolution “would then have acquired [binding] force” (p. 62 and p.101).
However, in my opinion, the UN Partition Resolution was illegal or null and void ab-initio regardless of whether “the parties at variance accepted it” (Prof. Stone, p.101) because it violated the terms of the then existing Mandate, in particular Article 5 thereof, as well as Article 80 of the UN Charter. Under the terms of the Mandate only Jews had national and political rights to the Land of Israel/Palestine, while the local Arab inhabitants enjoyed “civil and religious rights” as stated in Article 2 of the Mandate. In contravention of the Mandate, the UN illegally awarded national and political rights to the Arab population over a substantial area of Western Palestine. It is evident that since Prof. Julius Stone believed that the partition plan would have been valid had all the parties concerned accepted it, then the Jews did not enjoy sovereignty over the entire land.
In Prof. Stone’s own words (p.62), “the effect of [an Arab acceptance of the Partition Resolution had it taken place] would have been to allocate sovereign titles inter alia to Israel, the proposed new Arab state, and the proposed corpus separatum” for Jerusalem. In making this statement, Prof. Stone based himself on the principle known as pacta sunt servanda – i.e. agreements or contracts must be observed or enforced. However, this principle only applies when the agreements or contracts are not contrary to existing law. In the case of the Partition Resolution, the existing law was indeed violated, which meant that this rule did not apply to the situation, as Prof. Stone thought.
To set the record straight, I originated and advanced the thesis as far back as the mid-1980’s that all of the Land of Israel including the so-called “unallocated territories” of Judea, Samaria and Gaza was reserved exclusively for the Jewish People upon whom sovereignty was devolved under the San Remo Resolution, even though this was not explicitly stated in this Resolution itself but can be logically inferred as a natural consequence of the adoption of the Balfour Declaration as the legal basis for creating and governing Mandated Palestine in conjunction with Article 22 of the Covenant of the League of Nations. Jewish sovereignty over Palestine in the de jure sense extended to all parts of the country, even those parts that later fell under the de facto rule of Arab states. During the Mandate period, the British Government exercised the attributes of sovereignty, but was not legally vested with sovereignty over Palestine. Such sovereignty was vested only in the Jewish People, even though it was not exercisable while the British governed the country. When the Mandate period ended at midnight May14-15, 1948, sovereignty over Palestine/the Land of Israel was then transferred to the State of Israel, the legal creation of the Jewish People.
Israel’s legal case is not advanced by spreading misinformation, or in Gurfinkiel’s case, by misattributing to noted jurists what they never wrote or said.
In my article, International Law and the State of Israel, I referred to Eugene Kontorovich’s recent article in which he argued that when Israel declared its independence, that international law provided that the boundaries of the British Mandate became Israel’s borders. So he agreed with Grief but for a different reason.
According to this legal reasoning I was right to reject to the use of this term by David Singer or anyone else..
Ted:
I had a post up here yesterday that has been removed. Any reason?
This is the second occasion this has happened in the last two days. I didn’t keep a photoshot of this one but I did of the one above.
@ Bear Klein:
Although you know “next to nothing about Australian affairs” you certainly that the correct spelling is …”r-e-n-e-g-i-n-g” . and that a gratuitous “g” is useless –like the Bush letter.
@ david singer:
I also went into it in great detail in this article.
https://www.americanthinker.com/articles/2009/12/obama_aims_to_impose_a_solutio.html
@ david singer:
I wrote about it many times. Here’s one extract.
@ david singer:
You said the USA voted against the Democrats because they did not honor the letter. That statement is what is not even remotely accurate. Site one USA poll that would reflect that in the slightest. There is no basis for that comment. Not the content of the letter. Israel is not a big deal in USA elections for the most part.
If you did poll in the USA asking if they even knew about this letter my guess is at most 1 or 2% would have heard of it.
You know about it because you are very interested in Israel. My guess is that no more than 5 or 10% of the Jews would know about the letter. The same for evangelicals.
@ Ted Belman:
Ted Belman Said:
Did you ever write about it?
I did – and this is what I said on 28 January 2014:
“President Obama and his Secretary of State John Kerry have a lot on their minds as they grapple with conflicts and political issues involving countries like Syria, Iran, Iraq, Sudan and Afghanistan – which no doubt must be causing massive overloading of their respective memory banks.
Yet this would be a lame excuse for them forgetting about – or seeking to minimize – the existence and crucial importance of the letters exchanged on 14 April 2004 between President Bush and Israel’s then Prime Minister – Ariel Sharon – who died recently after languishing in a coma for eight years
These letters enabled courageous and highly dangerous decisions being taken by Sharon to kick-start President Bush’s stalled 2003 Road Map – whose goal had been to end the Jewish-Arab conflict by 2005.
President Bush’s letter provided the catalyst – and the political justification – for Israel unilaterally evacuating the entire Jewish population of 8000 from Gaza and withdrawing Israel’s army totally from there – without any preconditions or undertakings being sought from the Palestinian Authority.
The Presidential letter set out the framework that Bush would support in negotiations between Israel and the PLO – conditions that Obama cannot possibly now discard as Kerry finalises his own framework agreement.
President Bush’s letter clearly – and unambiguously – assured Sharon that;
1. The borders of any Palestinian Arab State would not encompass the entire “West Bank” despite successive Arab leaders having demanded this outcome for the previous 37 years,
2. Jewish towns and villages in the “West Bank” would be incorporated into the borders of Israel
3. The Arabs would have to forego their demand to be given the right to allow millions of Arabs to emigrate to Israel and
4. Israel’s existence as a Jewish State would be non-negotiable
Bush’s commitments to Sharon were approved – almost unanimously – by both the US House of Representatives and the Senate.
It didn’t take too long, however, for these Congress-endorsed commitments to be downplayed by Bush and his advisors.
In an editorial – published on 14 May 2008 – former Jerusalem Post editor – David Horovitz – revealed the extent of the American resistance to remaining bound by President Bush’s 2004 letter following a meeting Bush had in the White House with a group of Israeli journalists:
“Secretary of State Condoleezza Rice, however, has been known to minimise the significance of this four-year-old letter. Just last week, for instance, she told reporters that the 2004 letter “talked about realities at that time. And there are realities for both sides….
Bush’s National Security Adviser Stephen Hadley has also given briefings to the effect that Israel had tried to overstate the importance of a rather vague letter, which was issued at a time when Sharon was seeking to bolster support for the pullout from Gaza.
“And in answering my question, Bush did not at first even realise that I was referring to the 2004 letter. Hadley, who was also in the Oval Office, had to prompt him. ‘Okay, the letters,’ the president then said, remembering.”
This was far worse and more sinister than mere memory loss. An attempt was being made – as early as 2008 – to renege on America’s clear and unequivocal commitments given to Israel as the price for Israel’s total evacuation of Gaza.
Israel had already paid a high price relying on Bush’s Congress-endorsed letter.
Gaza had become a de facto terrorist State – with Hamas firmly entrenched as the governing authority.
Israel had – since its evacuation of Gaza in 2005 – been subjected to a sustained barrage of rockets and mortars fired indiscriminately into Israeli population centers from Gaza by a bewildering variety of terrorist groups and sub-groups who would have had no chance of operating so freely from Gaza if the Israeli Army had remained there.
Israel’s Prime Minister – Ehud Olmert – who succeeded Sharon – had neither forgotten nor overlooked the critical significance of President Bush’s letter when agreeing to resume negotiations with the Palestinian Authority in 2007.
At the international conference held in Annapolis in November 2007 to announce a breakthrough in the resumption of those negotiations – Olmert told Bush and the world leaders gathered there that:
“The negotiations will be based on previous agreements between us, U.N. Security Council Resolutions 242 and 338, the road map and the April 14, 2004 letter of President Bush to the Prime Minister of Israel.”
The subsequent failure of those negotiations can be directly attributed to the Palestinian Authority’s refusal to countenance the Bush commitments made to Sharon.
As Obama gets ready to approve Kerry’s framework agreement – he and Kerry need to have their memory banks updated to remind them of the importance of honoring Bush’s commitments.
Any attempt by Obama and Kerry to retreat from or circumvent Bush’s Congress-endorsed commitments to Sharon will torpedo any prospects for success in the current negotiations – leaving Obama and Kerry with no one but themselves to blame for bringing the current negotiations to an ignominious end.
The idea that any American President would not consider himself bound by the written commitments of a former President – as endorsed by Congress – would undermine America’s very democratic foundations.
Disavowing the Bush commitments would prejudice the integrity of American diplomacy world wide – ensuring any political decisions by the current administration would not be worth the paper on which they are written.
Sharon has left behind a bitter pill – which Obama and Kerry must reluctantly swallow.
Congress will be there to make sure they do.”
Ted: Your unsubstantiated statement is – with respect – a load of nonsense. As a lawyer – I would expect better from you. Substantiate your claim now or withdraw it.
@ Ted Belman:
You are so right on this. It is actually like the voters in the USA except for handful of Jews and foreign policy geeks had ever even heard of the Bush letter.
Evangelicals mostly vote GOP or sit home. The Jews by 70% vote Democrat. These are the two largest groups who care about Israel to various degrees and the letter was never discussed.
Australia is very far from both the USA and Israel. Without insulting Mr. Singer as an intention he is very far out of touch. Then I know next to nothing about Australian politics either.
david singer Said:
It was never an issue. Everyone knew she disavowed the letter. I have no idea how you come to your conclusions. It was not hidden in the slightest.
@ Ted Belman:
True – but attempts by Hillary Clinton and John Kerry to conceal its existence backfired badly on the Obama administration and its failure to be bound by the Congress – endorsed commitments made by Bush to Israel. This no doubt contributed to Clinton’s defeat in the 2016 Presidential elections.
Voters do not like cover ups and renegging on Presidential commitments.
@ david singer:
You care about diplomacy. I care about the lives and security of Israelis, first and foremost.
The letter was near worthless after Obama came into office. If the news has not yet reached Australia, since Israel left Gaza there has been three wars and a fourth maybe near. 10,000 plus rockets have been shot at Israel.
This is a success according to you Mr. Singer? That Israel got a piece of paper from Bush that did not stop one rocket from Gaza. The anti-Israel crowd still says Israel is responsible for Gaza.
@ david singer:
Obama made short shrift of it as soon as he came into office.
@ Bear Klein:
Israel’s unilateral withdrawal from Gaza was only undertaken after Sharon had procured a letter from President Bush dated 14 April 2004 – whose terms were overwhelmingly endorsed by the Senate and House of Representatives 502 votes to 12.
Israel has indeed paid a high price for procuring that letter from President Bush but it has proved of inestimable value in the diplomatic arena – especially in America’s current support for Israel..
What matters most in the middle east who has the power and will to control land and not what came out of someone’s book in the year xxxxx. The Pal-Arabs do not care they make up their own history to nullify actual history and are promote it widely.
What matters most is facts on the ground and control of the ground. Ceding land to people who want to use it to destroy you is suicidal in the middle east. Many of us said before the Gaza withdrawal that doing this was not going to lead to stability but an expansion of terrorism. We were correct. The IDF never should have left. When the IDF was in Gaza it was easy to split it in parts to keep from being able to operate militarily.
Israel CAN NOT allow the Pals to have contiguous territory in Judea/Samaria as it could end up being a military problem and security issue.
@ david singer:
Thank you for this valuable addition to our discussion. I am impressed to hear of your involvement.
What matters to me most is that I now understand the term and its origin and the arguments pro and con.
Ted
So now your own research tells you that three eminent jurists Riebenfeld, Stone and Rostow have used the term “unallocated territory” in reference to the remaining territory of the Mandate where sovereignty is still unallocated between Arabs and Jews.
What you fail to recognise is that Israel can still claim all of that unallocated territory in negotiations between Israel and Jordan.
Reject the use of that term – “unallocated territory” – if you will. That is your prerogative. I will continue to use it to accurately describe the existing legal situation in Judea and Samaria.
You have not.
We must therefore agree to disagree – just as we do as to the wisdom of your backing Mudar to replace Abdullah.
Disclosure:
1. Riebenfeld was the head of the Policy Committee of “Jordan is Palestine International Committee” (JIP) of which I was the Convenor. I was present at a meeting between Riebenfeld and Grief where Riebenfeld made it very clear he did not accept Grief’s opinion on this very issue. Riebenfeld devoted his life to the study of the Mandate. His evidence to the Committee on International Relations of the House of Representatives in 1975 is an outstanding work of scholarship and research and became the foundation of the JIP campaign..
2. I organised the book launch of Professor Stone’s book by the then Prime Minister of Australia on 29 November 1981. Stone was my lecturer in international law and enthusiastically endorsed the work of the JIP Committee. I appered with him and Martin Indyk on a community panel in 1980. He was a towering giant in the international law community. I suggest you read the section of his book “The Kingdom of Transjordan (Jordan) As A Palestinian Arab State” (pp 22-25)
At the book launch Stone said:
“the State of Jordan, to which negotiation could add much of the West Bank, is already an ample homeland for Palestinian Arabs, four times the area of Israel.”
3. I never met Rostow – but I refer you to his article: “The Peace Making Process:UN Resolutions 242 and 338” – published in 1993 – in which he states;
“These two Resolutions, read together constitute a binding prescription for Jordan and Israel to fix permanent boundaries between them. The territories concerned – the West Bank and the Gaza Strip – are unallocated parts of the territory of the Mandate for Palestine, that is, remnants of the territory which have not yet become parts of any recognized state.” Riebenfeld had persuaded him to that view.
Good Research Ted!