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Tuesday, October 21, 2014

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Israel’s right to the land undisputed

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Donald Carr

“Occupiers,” “Palestinian lands,” “Arab east Jerusalem,” “contrary to international law.”

These catch phrases, and others with similar implications, have been used incessantly – not merely by Arab or Muslim sources, but by U.S. President Barack Obama, EU Foreign Secretary Catherine Ashton and countless writers and commentators. They have become part of the standard lexicon to decry Israel’s territorial position since 1967 and after. The 1967 armistice line known as the “Green Line” has magically and cavalierly also been referred to as a “border.”

The fallacy of this almost universally accepted usage was the subject of a conference in Israel on the status of Jerusalem under international law and future options for that city.

According to Jacques Gauthier, an international lawyer from Toronto whose presentation was the centrepiece of the conference, legal title to what was Palestine in 1919 (the current State of Israel; Gaza; the West Bank, also known as Judea and Samaria; and Jordan) belongs exclusively to the Jewish People, as represented today by the State of Israel.

Gauthier’s conclusion has never been refuted in any accepted analysis of international law. It was first presented by Howard Grief, an Israeli lawyer who made aliyah from Montreal many years ago, in an article written in 2004. However, it has never been researched as carefully and with such detail and references as by Gauthier.

Israeli (Jewish) sovereignty arises through a series of declarations and international treaties that followed the defeat of Germany and its allies at the end of World War I.

The chronology, in brief, is as follows:

1. The 1917 Balfour Declaration of the British Government declared the intention of Britain to create a “national home for the Jewish People” in Palestine.

2. Prof. Ian Brownlie said in his Principles of Public International Law: “After the defeat of the Central Powers, the leading victor states assumed a ‘Power of Disposition’ to be exercised jointly over the territory of the defeated states.”

As a result of the exercise of that power, huge tracts of national lands in Europe were ceded by the defeated countries.  These included what are known as Poland, Lithuania, Latvia, Finland, Rumania, Yugoslavia, Thrace and part of Turkey.  Those dispositions were confirmed by treaties signed by the defeated states.  Nobody has ever questioned the rights thus created.

In the Middle East, the Arab peoples’ claims were submitted by Emir Feisal to the “Principal Allied Powers” (Britain, the United States, Japan, Italy and France) at the Paris Peace Conference. The Jewish claims were submitted by Chaim Weizmann.

3. The claims of the Arabs were satisfied by a Mandate allocated to France, being the territory that later became Syria and Lebanon, and by a Mandate to Britain of lands that later became Iraq.

The claims made by the Jews resulted in a Mandate for Palestine, given to Britain. That Mandate repeated explicitly the operative parts of the Balfour Declaration.  The Mandate included all of the lands to the west of the Jordan River as well as the huge territory that lay to the east of that river. Britain was to hold all of those lands in trust for a national home for the Jewish people. Britain’s Mandate was adopted by the Supreme Council of Allied Powers at the San Remo Conference in April 1920. It was confirmed by the Treaty of Sevres, Aug. 10, 1920. Turkey was a party to that treaty.

4. Upon the creation of the League of Nations in July 1922, Article 22 of its covenant reconfirmed the French Mandate and the British Mandate relating to Iraq.

However, in 1921, acceding to further claims by Emir Feisal, Britain proposed to lop off that part of Palestine to the east of the Jordan River to create Trans-Jordan, later known as Jordan.

On behalf of the Arabs, Feisal, formally and in writing, abandoned any claims to the lands west of the Jordan River, then known as West Palestine. The League of Nations approved that dismemberment of Palestine. The Jews were impotent to do anything about it.

5. In Article 80 of its charter, the United Nations confirmed the then-existing mandates, thereby recognizing Jewish sovereignty to the whole of Palestine west of the Jordan River.

Subsequently, of course, came the Partition Plan, adopted by the United Nations and accepted by the Jewish People, the creation of the State of Israel, the 1948 war, Security Council Resolution 242, the later wars, the peace treaties with Jordan and Egypt, the disengagement agreements with Syria after the 1967 war and the Oslo accord.

It is argued that by accepting the partition of Palestine and engaging in the subsequent “arrangements,” Israel gave up its legal rights to lands west of the Jordan, other than those constituting what is recognized generally as Israel, including Jerusalem. It should be pointed out, however, that all of the Arab states, as well as representatives of the Palestinian Arabs, either rejected or, with respect to the Oslo accord, breached so many of its provisions that Israel’s legal rights, if they ever were surrendered, have not been lost, or were revived.

Jerusalem, no matter how that city is defined territorially, presents a somewhat different set of issues, as Israel has never given up any claims to it and has, indeed, formally annexed large parts of it. 

 Donald Carr is the president of  The CJN.

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