By Avi Bell and Weiler and Zilbershats
Israel’s presence in the territories seized in the Six-Day War of 1967—a presence now signaled mainly by Jewish settlement activity especially in Judea and Samaria—has been for decades the object of intense opposition by the “international community.” Indeed, most governments, including that of the United States, regard those settlements as illegal under international law.
Now an official Israeli commission, headed by former Supreme Court Justice Edmond Levy, has concluded that, to the contrary, the settlements are lawful and “Israelis have the legal right to settle in Judea and Samaria.” The commission’s 90-page report—so far, only portions of the Hebrew original have been translated—was published last month to a storm of criticism in Israel and abroad.
With the aim of clarifying the issues involved, we present here two differing views of the Levy report, the reasoning of its authors, and the implications of its conclusions for Israel’s legal, political, and diplomatic position. —The Editors
The Levy Report: A Welcome Advance
By Avi Bell
In mid-July, Prime Minister Benjamin Netanyahu was presented with the report of the Commission to Examine the Status of Building in Judea and Samaria, headed by former Supreme Court Justice Edmond Levy. The report has drawn a flurry of overwrought criticism due to its inclusion of a section concerning the lawfulness of Israeli settlement activity.
In contrast with the misinformed and sometimes outright disingenuous criticism, the report’s discussion of the lawfulness of settlements is surprisingly modest in substance. The report does little more than endorse the traditional official Israeli position that the Fourth Geneva Convention does not apply de jure to the West Bank, and in any event does not bar Israeli settlements. While the report’s analysis is far from comprehensive, it is more detailed and more persuasive than that usually offered by anti-settlement activists.
The Levy report adduces one of two fairly compelling reasons for concluding that the laws of belligerent occupation do not apply de jure to Israel’s presence in the West Bank. One of the sine quibus non of belligerent occupation, as reaffirmed recently in an expert conference organized by the International Committee of the Red Cross, is that the occupation take place on foreign territory. While recent years have seen some debate on the meaning of foreign territory, considerable state practice supports the traditional view that captured territory is “foreign” only when another state has sovereignty. The Levy commission is on solid ground in observing that neither Jordan nor any other foreign state had territorial sovereignty over the West Bank in 1967 and that the territory cannot therefore be “foreign” for purposes of the law of belligerent occupation. Indeed, had the Levy commission chosen to so argue, it could have argued cogently that Israel itself was already the lawful sovereign over the West Bank in 1967.
Unmentioned by the report, Israel’s peace agreement with Jordan constitutes a second reason for questioning the de jure application of the laws of belligerent occupation to the West Bank. As Yoram Dinstein wrote some time ago, the rules of belligerent occupation cannot be applied to Israel’s presence in the West Bank “in light of the combined effect of . . . the Jordanian-Israeli Treaty of Peace of 1994 and the series of agreements with the Palestinians. There is simply no room for belligerent occupation in the absence of belligerence, namely, war.” While Dinstein qualified his observation by holding several idiosyncratic views regarding the definition of occupation and the status of the Palestinians, as well as by joining a small group of legal scholars who believe in a “post-belligerent occupation” that shares many of the rules of belligerent occupation, the majority position is still clearly that the rules of belligerent occupation do not apply to an agreed-upon peacetime presence.
On settlements, the Levy report likewise adduces several strong arguments to the effect that even if the laws of belligerent occupation applied to Israel’s presence in the West Bank, the Fourth Geneva Convention poses no bar to the kinds of actions that are subsumed under the term “settlement activities.”
The Fourth Geneva Convention forbids “transfers” and “deportations” by the occupying state of parts of its population into occupied territory, but not “settlements.” Officials of the state of Israel have provided services to settlers and sometimes encouraged them, but the state of Israel has not transferred any Israeli to the West Bank against his or her will. In fact, as even anti-settlement activists like Talia Sasson acknowledge, “there was never a considered, ordered decision by the state of Israel, by any Israeli government” on settlements. While some governments of Israel have favored the physical expansion of settlements or the increase of their population, settlement growth has been driven by the preferences of private citizens not by official Israeli population transfers. There is no precedent for any other state being adjudged to have violated the Fourth Geneva Convention simply on the basis of permitting or facilitating private preferences in the way Israel has done. Indeed, this is the reason that the Arab states sought to redefine the bar on “transfers” in international law by including a crime of “indirect” transfers in the Rome Statute creating the International Criminal Court. However, Israel is not a party to the Rome Statute and it is therefore not bound by the alternative, more restrictive standard.
The Levy commission notes that even if facilitating private Jewish residential preferences in the West Bank were otherwise suspect “transfers,” sui generis rules apply to the area. Article 6 of the Mandate of Palestine demands “encourage[ment], in cooperation with the Jewish Agency . . . [of] close settlement by Jews on the land, including State lands . . .” As the late Eugene Rostow, one-time dean of Yale Law School, noted, this command is preserved by article 80 of the UN Charter, and, if the West Bank is under belligerent occupation, by article 43 of the Hague Regulations. Additionally, if, as Israel’s critics contend, the International Covenant on Civil and Political Rights applies to Israeli actions in the West Bank, articles 3, 12, and 26 of the Covenant lend urgency to Israeli efforts to protect Jewish housing rights in the West Bank in light of the Palestinian Authority death penalty for land sales to Jews coupled with senior Palestinian officials’ open call for a Jew-free state of Palestine.
Talia Sasson, author of her own controversial 2005 report on outposts, has criticized the commission on the grounds that its conclusions are contradicted by Israeli Supreme Court rulings. But contrary to Sasson’s assertions, while the Supreme Court has adjudicated cases on the basis of Israel’s voluntary assumption of selected duties of a belligerent occupant, the Court has never ruled that the Fourth Geneva Convention applies de jure to the West Bank.
In opposing the Levy report, Aeyal Gross and David Kretzmer have claimed that if the laws of belligerent occupation do not apply de jure to the West Bank, Israel lacked the authority to empower a military commander to undertake actions such as seizing property in the territory. However, Gross and Kretzmer err. Israel’s administrative law determines the powers given to an Israeli military commander, not international law, and there is nothing to prevent Israel granting various powers to its commander in the West Bank, in the absence of a de jure belligerent occupation. History supplies more extreme examples: the United States applied full military regimes to defeated Confederate states after the civil war, and to Puerto Rico following a peace treaty with Spain, even though the states were American territory and there was clearly no de jure belligerent occupation.
Some have argued that the Levy report is foolish politically, arguing that by asserting its legal rights, Israel will signal that it is unwilling to entertain “land for peace” compromises. This seems a doubtful thesis. Israel has asserted its legal rights to Jerusalem for decades, but yet repeatedly offered compromises on its rights in the city.
Others have objected that the Levy report’s conclusions can be disputed by international jurists, including by a controversial and non-binding advisory opinion of the International Court of Justice. It is true that like many legal controversies, the questions addressed by the Levy commission are capable of being analyzed in a number of ways. The Levy commission’s conclusions are logical applications of reasonable understandings of the rules in an area where no authoritative resolution of the dispute has yet been rendered.
The Levy report has reinvigorated the discussion of the legitimacy of Israel’s position under international law after many years in which Israel has been silent about its legal rights. That is a welcome development.
Avi Bell is a professor in the Rackman faculty of law at Bar-Ilan University and the University of San Diego school of law. This essay was originally published on July 31 by the Begin-Sadat Center for Strategic Studies as a BESA Center Perspectives Paper (No. 176), and is republished with permission.
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The Levy Report: A Note of Caution
By JHH Weiler and Yaffa Zilbershats
A 90-page report by a commission appointed by the government of Israel to look into the international legal status of Judea and Samaria has provoked a media brouhaha in Israel and beyond. To understand why, it helps to know that in reaching its conclusions, the commission, headed by Justice Edmond Levy, draws on legal arguments that are themselves the objects of controversy.
For the most part, those arguments were developed in the period following the Six-Day War of 1967 in which Israel, defending itself against concerted Arab aggression, seized Jordanian, Syrian, and Egyptian territories. The arguments are associated principally with the names of such distinguished American authorities as Eugene Rostow, Julius Stone, Arthur Goldberg (then the American ambassador to the United Nations), Judge Stephen Schwebel of the International Court of Justice (also known as the World Court), and, most notably among Israeli scholars and diplomats, our esteemed friend Yehuda Blum.
But the case advanced by these figures was hardly accepted universally at the time—in Israel itself, it was subjected to strong criticism by, among others, Yoram Dinstein of Tel Aviv University—and it has been rendered increasingly irrelevant by later developments.
Most states, including Israel, accept Resolution 242 of the United Nations Security Council, adopted in the aftermath of the Six-Day War, as the political and legal “cornerstone” of efforts to resolve the conflict. The resolution balances Israel’s right “to live in peace within secure and recognized boundaries free from threats or acts of force”—a statement that opens the prospect of security-driven border adjustments in the context of any eventual peace treaty—with (a) “the inadmissibility of the acquisition of territory by war” and (b) the principle of “[w]ithdrawal of Israeli armed forces from territories occupied in the recent conflict.”
The hard-won wording of the last of these principles, especially the carefully phrased formula “from territories” rather than “from the territories” or “from all the territories,” was intended by 242’s drafters to safeguard the possibility that, in Ambassador Goldberg’s words, “territorial adjustments to be made by the parties in their peace settlements could encompass less than a complete withdrawal of Israeli forces.” In the intervening years, however, some have construed this formula as indicating an Israeli right either to hold on indefinitely to the bulk of the conquered territories or to act as sovereign in them, or both.
The late Dean Nathan Feinberg of the Hebrew University law school characterized that view as being “without a firm legal foundation . . . unconvincing, not helpful to peace, and one that does not add honor to Israel.” A similar judgment might be entered on the conclusions of the Levy report.
Today, most international lawyers, whether friendly or hostile to Israel, are agreed that although Israel legitimately seized the conquered territories in a war of self-defense, and that therefore its occupation of those territories was not illegal, Israel’s status, pending an agreed-upon peace agreement with the Palestinians, remains that of a “belligerent occupier.” This is also the position of the World Court and of practically all governments, friend or foe. Israeli governments of both the Left and the Right have proceeded under this assumption, and the Supreme Court of Israel has operated under the same premise. A statement in a 2004 case is typical: “The point of departures of all parties—and this is our point of departure as well—is that Israel is holding the territories under [the law of] belligerent occupation.” Likewise, a broad legal consensus, accepted by Israel, recognizes the Palestinians as a people with an attendant right to self-determination within the territories.
The status of “belligerent occupier” bestows neither sovereignty over the territories nor permanent title to them, but instead grants certain rights and imposes certain duties. According to the prevailing view, most Israeli settlements, for example, are unlawful under the law of belligerent occupation. The Supreme Court of Israel has stated that since the occupation of the territories is temporary, the future of the settlements will be decided in international agreements to which Israel will be a signatory.
All this militates against the relevant conclusions of the Levy report—specifically, its position that Israel is not an occupying power under the law of belligerent occupation, and that Israelis have a legal right to settle in the West Bank. Indeed, if the legal approach of the Levy report were to be adopted, it could ultimately lead to making the territories part of Israel proper. This in turn would issue in two equally unpalatable choices: either Israel would grant citizenship to the Arabs living in the territories, with demographic consequences that would compromise and potentially undermine the Zionist ideal of Israel as the state of the Jewish people, or Israel would adopt a governing structure for the territories amounting to a form of apartheid, thereby compromising and undermining the state’s democratic character—another core aspect of the same Zionist ideal.
The logic of the arguments developed in the Levi report thus opens a juridical Pandora’s box. In recent times, Israel’s very legitimacy has come under increasing international attack, reminiscent in its intensity of the precarious early years of the state. One front in that campaign is the relentless and increasingly sophisticated use of international law to wage “lawfare” against Israel, its leaders, and its soldiers. In these circumstances, to destabilize the internationally accepted status of the territories risks creating a perverse legal boomerang, further destabilizing the status of Israel itself within its present, internationally recognized boundaries.
So far, the government of Israel has neither endorsed nor adopted the conclusions of the Levy report. Instead, the report is “being studied.” In our view, this is a wise and a good thing.
JHH Weiler is University Professor and Joseph Straus chair at New York University’s law school, and co-director of NYU’s Tikvah Center for Law & Jewish Civilization and the Straus Institute for the Advanced Study of Law & Justice. He is editor-in-chief of the European Journal of International Law.
Yaffa Zilbershats is a professor of international law at Bar-Ilan University, where she also currently serves as deputy president.
@ Bernard Ross:1-Dear Mr. Ross: These are my comments. 1. Were UN Charter members, and/or succeeding admissions, legally obligated to “encourage close settlement of Jews west of Jordan River”?
Answer. Article 80 specifically addresses this question:
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. As of 1948 the World Jewry had a beneficial interest in the political rights to Palestine, at the very least to CisJordan. On the abandonment of the trust, it seems to me a court of equity would give the legal title to the beneficiary. Or in any event, by the time it would have decided, the tacit condition to obtaining legal title to the trust res, i.e. the political or national rights to Palestine would have been satisfied, as by 1950 the Jewish population inside the Green Line was a majority.
Also, the UN had permitted Israel to assert independence and Israel, with its blood and treasure held some of its political rights against all agressors.
2- Although the Jordanian invasion and occupation were unrecognized by the UN was Jordan, if relevant, legally obligated to “encourage close Jewish settlement west of the JOrdan River” and if so was Jordan and UK(its occupation supporter) in legal breach of UN Charter and relevant treaties.
Answer: Yes. “… the UN Charter outlaws war, but by specifying on the other hand which wars do not fall under this proscription. It expressly permits the use of war for self-defense or the defense of allies. ” http://www.ruthlesscriticism.com/international_law.htm So the 1948 invasion of the British Mandate, whose legal title to its political rights had devolved to the Jews, was in violation of the obligations of the members of the UN. It also failed under its obligations under Article 80. Finally, In its Partition Resolution, Jerusalem was proposed to go temporarily to a UN protectorate, and the UN failed to protect its protectorate leaving Israel to defend it against aggressors with its blood and treasure. Julius Stone, a famous International Lawyer said this is the historic way nations gained sovereignty. I would rely principally on the San Remo Grant. The 1967 war was a defensive war as Jordan commenced shelling Jerusalem. Israel passed a note to Abdullah, asking him to stay out of the conflict and they would ignore the initial shelling. Abdullah declined to do so. Article 51 of the UN Charter permitted Israel to defend itself.
3)Was there any action, treaty etc. which cancelled or succeeded to the right of Jews to “.. settlement west of the Jordan River.
Answer, Only the Oslo Agreement. The Arabs are in material breach of it by their unilateral efforts to obtain a declaration of statehood by the UN. That justifies its termination by Israel. However its rights East of the Jordan appear to have been canceled by its Peace Treaty and Boundary Agreement with Jordan.
4)What is the state of Israel’s position regarding the “Jewish people”. Has it succeeded legally to the Jewish agency; has it succeeded to the UK as Mandate Trustee; is it merely a non sovereign administrator of the “occupied” territories. Do any of these positions relive Israel of the legally binding obligation to facilitate “..close settlement of Jews west of the Jordan river”
Answer: It seems to me that Israel is the agent of World Jewry. One can fire one’s agent. But of course Israel has an army and the World Jewry has not.
These are difficult questions and these answers are my comments “off the cuff”. I reserve the right to amend if further study shows I overlooked something.
@ Bernard Ross:Amen.
@ Wallace Brand: Thank you for your post and filling in some historical legal perspective. I am curious as to the legal position and obligations of the concerned parties as a result of UN Charter, Britain’s abdication from mandate and Jordans unrecognized(except for GB & Pak.) invasion and occupation of the west bank. Here are my legal questions:
1-were UN Charter members, and/or succeeding admissions, legally obligated to “encourage close settlement of Jews west of Jordan River”?
2- Although the Jordanian invasion and occupation were unrecognized by the UN was Jordan, if relevant, legally obligated to “encourage close Jewish settlement west of the JOrdan River” and if so was Jordan and UK(its occupation supporter) in legal breach of UN Charter and relevant treaties.
3)Was there any action, treaty etc. which cancelled or succeeded to the right of Jews to “.. settlement west of the Jordan River”.
4)What is the state of Israel’s position regarding the “Jewish people”. Has it succeeded legally to the Jewish agency; has it succeeded to the UK as Mandate Trustee; is it merely a non sovereign administrator of the “occupied” territories? Do any of these positions relive Israel of the legally binding obligation to facilitate “..close settlement of Jews west of the Jordan river”?
5-Do you see any legal impediment to the state of Israel facilitating the “encouragement of close legal settlement of Jews west of the Jordan river” at this time. (Key word is LEGAL). Are the pursuit of Israeli state claims and Jewish settlement claims mutually exclusive?
babara Said:
It appears that you do not understand my argument or I have written poorly. Please note that the gist of my argument was to separate arguments concerned with the state of Israel’s claims(sovereignty, occupation, etc.) from arguments concerned with the rights of the “JEWISH PEOPLE”. You are referring to claims regarding the state of Israel which proves my point: that arguments of Israeli sovereignty rights or claims are red herrings which obfuscate the right of Jewish settlement. The rights of Jewish settlement were overtly and specifically granted by the world community and by prior treaties in the UN Charter and these rights were “WEST OF THE JORDAN RIVER”. To my knowledge these legal rights have never been cancelled, expired or replaced by succeeding legally binding agreements. UNGA partion res. 181 in 1947 was not legally binding and was never consumated. JOrdans invasion and occupation, strangely reognized only by pakistan and perfidious albion(the palestine mandate trustee) put a stop on jewish settlement west of jordan river: was this stop legal? My understanding is that all signatories to the UN Charter were legally bound to that charter and especially those who guaranteed the former relevant treaties. The fact that Israel has breached its trust, either as succesor agent of Jewish people or as succesor to mandate trustee(GB), does not cancel JEWISH rights to settle. It is my view that anyone who is in charge of administering the west bank(be it israel, jordan or uk) has an obligation to continue to encourage jewish settlement west of the jordan river. The fact that everyone ignores it, including Israel, does not cancel the legal rights of jews. It is the ongoing legal rights of jews to settle, plus the ongoing legal obligation of UN members to encourage that settelement, west of the jordan river which i believe is the most convincing argument legally if one is pursuing legal avenues. The pursuit of the legal avenue in international law may not be enforceable but it serves as a reasonable basis for unilateral action and a reasonable basis for those who support the jews generally to also support jewish settlement anywhere west of jordan river.
babara Said:
The world community does not recognize the China’s occupation of Tibet, among other things unrecognised by the world community, and yet “it aint mean a thing” to China’s annexation. The only things that “mean a thing” are military might and ability to absorb world sanctions. I see no world power or the UN who will take on Israel militarily who is not already at war with Israel, I do not believe Israel has a military problem with the world community. If Israel were to seize the oil resources of the mideast(not animpossible task) we would see the shift in world opinion, especially from those who depend on mideast oil, from anti israel to pro israel. The efficacy of the pursuit of legal rights and claims based on international law is mainly a form of PR. It gives a reason for acting unilaterally(eg enforcement of legal obligation to encourage close settlement of jews west of jordan river). It gives a reason for nations to overtly and covertly support Israel at UN. If allowed to be dissemination it can be expected to improve Israels image and SUPPORT. The greatest impediment to the dissmination of these jewish rights is the state of israel whose corrupt leadership conveniently ignored jewish rights for supposed “security” reasons. (barak, olmert, sharon,etc are all jewish leaders who give up something of the Jews and at the same time are embroiled in scandal)Non enforcement for security reasons does not require hiding jewish rights.
babara Said:
Agreed, however Israel, and the jews, have in the past been under the duress of extortion from the former jew killers. Now tihngs have changed and Israel and the jews may, due to military strength, pursue their legal rights through unilateral action.
babara Said:
Is that why you write here? A seed is worth less than half a fig but a seed, nurtured and fed, may grow to be a full fig. I keep writng my point of view regarding the still existent rights of JEWS to close settlement west of the jordan river because I have not yet heard one legal argument of any merit which rebuts it. All argument concerning jewish settlement is based on arguments of Israel’s state rights or occupation. I believe there is great merit in the exposure and pursuit of the simple, unexpired, uncancelled, unreplaced, internationally legally binding right of JEWISH SETTLEMENT WEST OF JORDAN RIVER regardless of which nation is administering the area.
@ Bernard Ross:
Israel can even claim its RIGHT TO OUTER MONGOLIA. or Tasmania. It aint mean a thing unless that right is acknoweledged by the world community. Insofar as the territories are concerned, there is not even one nation that accepts Israel’s claim, particularly because Israel has never made that claim. What is recorded on Israpundit is not worth half of a fig.
I am mostly in agreement with Avi Bell, but I disagree completely with the “consensus” approach to determine questions of law instead of using the Judicial Process. Wellman and Zilbershats prefer the consensus approach to deciding questions of law. Wasn’t it Moses who said the Jews are a government of laws and not men? We should not take a vote to decide questions of law. We should look at the Levy Report and see if it is a sound application of legal principles to the credible historical facts at hand that are a preponderance of the evidence.
Professor Berman of Brown university came up with the “consensus” approach also. This is my reply:
Professor Berman of Brown University, in an article in the Times of Israel entitled “San Remo in Shilo[sic] http://blogs.timesofisrael.com/san-remo-in-shilo-the-settlements-and-legal-history/, has derided the Levy Report that parallels my own views, published as a two part op ed at Part 1: http://www.israelnationalnews.com/Articles/Article.aspx/11408
Part 2: http://www.israelnationalnews.com/Articles/Article.aspx/11412 See also this simplifying video: Debunking the Palestine Lie” http://www.youtube.com/watch?v=O7ByJb7QQ9U.
Professor Berman claims my view should be ignored because it is a minority view of International Lawyers, a very small minority.
International Law by consensus is no better than science by consensus. See: Michael Crighton, Aliens Cause Global Warming,http://wattsupwiththat.com/2010/07/09/aliens-cause-global-warming-a-caltech-lecture-by-michael-crichton/ Science is done by the scientific method, by individual scientists testing hypotheses. Before Semmelweis it was the consensus that obstetricians need not wash their hands before helping a woman deliver a baby and these doctors wore their blood soaked aprons from previous births as a badge of their expertise. Infant mortality was high from puerperal fever when this consensus did their work and they gave Semmelweis a very hard time for expressing his novel views, 180 died out of 1,000. The idea conflicted with both the existing medical concepts and more importantly, with the image that doctors had of themselves — that the doctors were helping, not killing their patients. That intransigence consigned large numbers of mothers to painful, lingering deaths. The scorn and ridicule of doctors was so extreme that Semmelweis moved from Vienna and was eventually committed to a mental asylum where he died. My dermatologist recently told me that at 82, I have a thinner skin, but even though thin skinned, I can take the derision of Berman. He and his consensus are killing Israel.
Berman seems to forget we are a government of law, not a government of men. We do law by the judicial process and not by voting.
The key to understanding what was intended by the Balfour Declaration and the agreement at San Remo and the cession of Palestine in Article 95 of the Treaty of Sevres (confirmed sub silentio by the Treaty of Lausanne) is a memo of the British Foreign Office on the cusp of its publication in 1917. That was a memo dated September 19th, 1917. It has apparently been overlooked by Berman. It was issued by the British Foreign Office to respond to critics of the proposed Balfour Declaration. The chief argument of these critics was that although the Jews had had a plurality of population in Jerusalem dating from 1845 and a majority since 1863, in all of Palestine (which was what was under consideration in the grant to the Jews), the Jews had only 60,000 population out of a total population of 600,000. They argued that sovereignty by a 10% minority would be antidemocratic. Woodrow Wilson was a chief proponent of this argument. That is not a bad argument. The French gave the Alawite minority in Syria sovereignty and look at the bloody mess now. The British Foreign Office also agreed with the argument in concept, but said that as applied to the proposed Balfour policy, the antidemocratic argument was :imaginary”. This was the memo written by Arnold Toynbee (later an anti-semite) and Lewis Namier. The reason they gave that it was “imaginary” was because the political or national rights WERE TO BE GRANTED TO THE JEWS IN TRUST, not to vest until the Jews had attained a population majority and were ready to exercise sovereignty just as any other modern European nation-state. England or the US were contemplated as possible trustees.
That this prediction by Toynbee and Namier actually occurred was confirmed by Winston Churchill to a visiting delegation of Arabs following WWI, and by David Lloyd-George at the Paris Peace Conference.
What is a “mandate”? It is a thing devised by Jan Smuts and defined in Article 22 of the League Covenant or charter. It was Part I of the Paris Peace Treaty. Look at it and you will find it is intended to be based on the British legal concepts of “trust” and “guardianship”. So to understand what was done, one must think not in terms of a hard bench law court, but in terms of the woolsack, of equity jurisprudence. It then becomes perfectly clear that the intention was to give the trustee or mandatory power the legal interest in the political or national rights to Palestine, and the beneficial interest to the World Jewry. Then, by not ceding any of these rights to a Foreign Power during the period needed to build a Jewish majority population, by engaging in close settlement on the land, and by facilitating Jewish immigration for the purpose of attaining a majority population ultimately, the interest of the Jews would change from a beneficial interest to a legal interest and they could commence the exercise of sovereignty.
This framing of the grant in terms of equity jurisprudence also leads to another conclusion. That is that by volunteering to be a trustee at the meeting of April 25, 1920 at San Remo, England undertook the obligations of a trustee. These are fiduciary obligations, the obligation to put the beneficiary’s or ward’s interest before those of your own. Perfidious Albion betrayed these obligations. The people in charge changed, their interests changed, and you can see it in the British White Papers of 1922, 1928 and 1939. First Churchill urged the League of Nations to suppress close settlement by the Jews in TransJordan temporarily citing “local conditions”, then he got them to cede all of Palestine East of the Jordan River to Abdullah, a foreign power. Then it blocked the immigration of the Jews into Palestine that it, as trustee, was required by the trust document to facilitate.
Why did it do this? In the case of the change for Transjordan, it was because of its secret agreement with the French, the Sykes-Picot agreement that placed Syria in the French sphere of influence. After the war, it placed Feisal, one of King Hussein’s sons on the throne of Syria. After the Battle of Maysalun, the French deposed him. Abdullah, a more warlike son of Hussein, marched his tribe to Eastern Palestine from the Hejaz in the Arabian Peninsula and made ready to attack the French at Damascus. To remedy these problems, Churchill decided to place Feisal on the throne of Iraq, and to give Transjordan to Abdullah and his Hashemite tribe. To soften the impact of this sudden reversal, the favoring of Abdullah was initially termed as a temporary situation in a new Article 25 of the mandate as presented by England to the League for confirmation in 1922. Later the grant became a permanent grant.
When England abandoned its trust in 1948, the Jewish population of all Palestine was still only one third. However the UN initially awarded Israel those parts of CisJordan (Palestine West of the Jordan) to the Jews that had the greatest Jewish population and likely had a majority of Jews. In any event by 1950 the Jews had a population majority. And it is only reasonable that when the trustee abandons his trust, the trust res devolves to the beneficiary, even thought the tacit condition of population majority had not been fulfilled.
Berman ignores this. He wants to have law by consensus, not by judicial process. He is wrong.
One reason that Berman can boast his is the majority view, is the difficulty of disseminating the above view to those who would be interested in the subject matter. I tried doing this at a recent conference at Harvard on March 3,4, 2012 and at another one at UCLA on May 15th. I was unsuccessful in getting an opportunity at either conference. The conference at Harvard was dominated by Arab intellectuals such as Sara Makdisi and Israeli post Zionism history revisionists such as Ilan Pappe’ . Professor Alan Dershowitz referred to it in an article in NewsMax as a anti-semitic and anti-Zionist Hatefest. At UCLA there was an alleged debate between Islamic extremists Reza Aslan and Hussein Ibish. You can find a full account of all this at israelagainstterror.blogspot.com/2012/06/salubrius-responds-to-eli-hertz-myths.html
Ted, I am trying to delete my last post because i inadvertently put entire post in quotes rather than just the title of the article. I try agian here.
I would like to add that even the title of this article
focuses on Israel’s rights rather than the unexpired and unclaimed Jewish rights of settlement WEST OF JORDAN RIVER. If Jews cant claim at least their legal rights as guaranteed then what can be claimed in arguments with others. Israel has clearly stated that it does not settle jews on the west bank “due to security reasons” It has clearly decided that its interests trump jewish rights. The inability to fulfill its obligations to settle Jews does not mean the rights do not exist. That is the same argument as saying I do not owe you money because I have no money to pay you. It just means that Israel is neither a proper successor to the Jewish Agency nor to the Mandate Trustee(UK)
I would like to add that even the title of this article
I have been saying for a long time what this article proves: that those detractors to Jews on the west bank are using the argument of Israeli sovereignty as a red herring to confuse and deny the rights of Jews. Please note that the main arguments concern Israel’s “belligerent” occupation. By proving, or even implying, that Israel may be in “occupation” it is believed by all that this would mean no jews in Y%S. However, when one separates the rights of Jews from the rights of Israelis it becomes obvious that the IDUSPUTABLE, LEGALLY BINDING, UNEXPIRED INTERNATONAL LAW of the UN Charter and its relevant antecedents, which mandates the “encouragement of the close settlement of JEWS WEST OF THE JORDAN RIVER” is an unassailable argument. certainly I have not seen one argument speaking against the “.. encouragement of the close settlement of Jews west of the Jordan river”. All arguments involve Israel and its state rights. As long as this confusion is allowed to remain there will always be acceptable arguments against Israeli sovereignty and jewish settlement. Even the first Pro settlement argument leaves out “west of the Jordan River”. Whoever is in charge of the west bank is legally bound to encourage the close settlement of JEWS(not Israelis) west of the JOrdan river according to prior law. This is why the occupation arguments create a red herring. Even the levy report makes the occupation argument the prime issue and the strongest argument for Jewish settlement is buried. Israel should proceed to settle the Jews based on its obligation to “encourage jewish settlement west of the JOrdan River” If that legal obligation were to be fulfilled then the original goal of the mandate would proceed automatically: that of a jewish state west of the jordan river. Everyone will deny the rights of Israel but will they be as quick to deny the still legally binding Jewish rights. They can reasonably argue that 242 was agreed by Israel and as such succeeds the mandate. However, 242, if applicable does not cancel the legal settlement rights of Jews only those of Israel. I would like to hear any argument which states that those jewish rights are no longer existent, certainly this article’s argument against settlement did not mention this issue(probably because there is no reasonable argument against it). IN fact I maintain that Jordan was legally obligated under the UN Charter to settle Jews west of the Jordan River and that their breach needs to be mitigated by an affirmative action jewish settlement program.