A week ago, I posted a letter to Ban Ki Moon, signed by 60 attorneys, which said A UN Resolution to Recognize a Palestinian State within “1967 Borders” Would Be Illegal. One of the people signing was Marc Zell who pratices law in Jerusalem and was formerlly a law partner in the firm of Feith and Zell.
He sent me this email he wrote in response to a email criticizing said letter
To So and So
Your note to the Jerusalem Center for Public Affairs has been forwarded to me by Ambassador (Ret.) Alan Baker. I, along with Amb. Baker, am one of the authors of and a signatory to the Legal Forum for the Land of Israel’s letter to UN Secretary-General Ban Ki-moon to which your remarks are directed. I would like to reply to certain points raised in your e-note.
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(1) “Whatever the League of Nations may have ruled, it was the UN and not the League that was instrumental in the establishment of the state of Israel”.
Neither the League of Nations nor the United Nations is or was authorized to create states. The State of Israel exists because the Jewish People, having returned to the Land of Israel after 2,000 years of exile, re-established sovereignty over the Land by creating national institutions, forming a robust and viable society, restoring the Land physically and economically for the benefit of all its inhabitants, declaring the establishment of the State and otherwise fulfilling the requirements for statehood under customary international law.
The international legal foundation for the establishment of that state was laid down in a series of acts, treaties and resolutions issued during and in the aftermath of World War I (e.g., Balfour Declaration, San Remo Agreement, Treaty of Versailles, Treaty of Sèvres, League of Nations Covenant and Mandate for Palestine, the Treaty of Lausanne and the Anglo-American Convention on Palestine). These actions comprised international legal recognition for the first time in modern times of the historical rights of the Jewish People in the Land of Israel (Palestine). The closest the United Nations (established in 1945) ever came to affecting matters was the UN General Assembly vote in 1947 (UNGA Res. 181) to recommend transforming part of the Mandate into a Jewish state (and another part into an Arab state). It is significant that the very authority of the General Assembly to consider the issue in the first place was because the United Kingdom in its capacity as the Mandatory Power referred the question of the future of its League of Nations mandate under the UN Charter. The UK’s status obviously derived from the League of Nations mandate which expressly endorsed and implemented (Article 6) the Balfour Declaration of November 2, 1917 under which the British Government supported the “establishment in Palestine of a national home for the Jewish people.”. In any event the General Assembly resolution became irrelevant following its unanimous rejection by the Arab League and the Arabs of Palestine by way of a formal declaration (February 1948) and a massive multi-front military invasion of Palestine and the nascent Jewish State. (May 1948). The military gambit ultimately failed with the result that due to the military prowess and national will of the fledgling Jewish polity, the State of Israel came into being –despite the efforts of the UN and many of its member states. What is more, the Mandatory Power refused to implement Resolution 181 — which was and remains a dead letter.
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(2) “Whatever the view you take regarding the “real” borders of Israel prior to 1967, the area occupied by Israel in the West Bank since then can in no way be legally acceptable for absorption into the state of Israel as it has been occupied AS A CONSEQUENCE OF MILITARY CONQUEST, and the UN has never accepted its right to belong to Israel.”
The State of Israel had no internationally recognized borders prior to 1967 other than the Mediterranean literal (where there was no other place to go). On all other fronts, Israel entered into armistice agreements with each of the neighboring Arab States (who had sought to obliterate the Jewish State militarily as noted). These agreements each expressly provided that the armistice lines demarcated therein were not final borders and were without prejudice to the position of the parties in any future negotiations with respect to the delineation of formal international borders. Much later the international borders between Egypt and Israel (1979) and Jordan and Israel (1994) were fixed by international treaty. There are no borders separating Israel from what you call the “West Bank” only the 1949 Armistice line (the “Green Line”) that once separated Israel and Jordan. The armistice line is now more or less a relic of history with no legal significance.
The area you refer to as the “West Bank” (a term invented by the Jordanians circa 1950 to refer to the area of Palestine known for millennia as Judea and Samaria) was unlawfully invaded and later annexed by Jordan. Jordan’s annexation was recognized only by one other country, its patron, the United Kingdom (and arguably Pakistan). Otherwise the Jordanian annexation of Judea and Samaria was rejected wholesale by the international community, including significantly the Arab League. When Jordan attacked Israel without provocation in June 1967, Israel responded in an act of self-defense in accordance with the United Nations Charter and international law. Consequently, Israeli’s entry into and presence in Judea and Samaria (the West Bank) and East Jerusalem were entirely lawful and remain so. Since the prior Jordanian occupation had itself been unlawful, that left the status of Judea and Samaria in dispute. Following the cessation of hostilities in 1967 Israel extended its law to East Jerusalem and unified the city. It did not do so with respect to Judea and Samaria but has never relinquished or waived the legal and historical rights of the Jewish People to reside in and develop Judea (notice the name) and Samaria. Rather, the position of every Israeli government since 1967 is and has been that the political future of Judea and Samaria is a matter for negotiations. However, the legal status of Judea and Samaria remains in dispute. In the absence of an international agreement concerning the final status of the area (left open by the Oslo Accords), the only legal framework that applies to these territories is precisely the League of Nations Mandate and particularly Article 6 thereof which required the Mandatory power to promote the “close settlement” of the Jewish people throughout Palestine (including Judea and Samaria). By virtue of Article 80 of the UN Charter the obligations of the international community as embodied in the League of Nations mandate remained in effect after the formation of the United Nations and the demise of the League of Nations. Neither UNGA Resolution 181 (see above) nor any of the numerous subsequent GA and Security Council resolutions on the subject has ever altered this basic legal status and historical fact. As a result, the Jews residing in Judea and Samaria are there as a matter of right. There is nothing illegal about it.
The Palestinian Arabs also claim rights in the area (as they do throughout Palestine, including all of “pre-1967 Israel”), but their claims pale in comparison to the Jewish claims from a legal, historical and moral standpoint. Having said this, as Prime Minister Netanyahu explained in his recent address to the joint session of the United States Congress, Israel may elect to waive its historical, legal and moral claims in whole or in part to Judea and Samaria (the West Bank) as part of a negotiated political settlement, not because it must do so as a matter of international law, but because it may voluntarily choose to do so within the framework of a negotiated settlement. Regrettably, the Arabs do not yet appear to be serious about either negotiations or a settlement. In the meantime, Israel’s presence in Judea and Samaria remains lawful as is the presence of its more than 500,000 citizens, who reside there of their own free choice. That the UN has not recently accepted this reality is of no real consequence. Note, however, that Israel’s position is entirely consistent with the two Security Council resolutions which are the only legally pertinent pronouncements concerning this controversy: SCR 242 and 338.
We would also note that while it is true that modern international law does not favor claims of sovereignty based on military conquest, it is certainly not the case that military conquest nullifies all other claims of sovereignty. Here are just two examples of lands to which sovereignty has been extended following military conquest since the UN Charter: Goa (by India) and South Vietnam (by North Vietnam). As noted above, Israel’s legal rights to Judea and Samaria date back to the Mandate. They cannot be erased by serial acts of aggression (in 1948 and 1967) by Transjordan/Jordan or unilateral declarations or terror attacks by Palestinian Arabs and their representatives in Gaza and the West Bank. It is true that the UN has voted that Israel has no rights to the “West Bank,” just as it is true that various UN organs have voted that Jewish self-determination is unlawful, that Zionism is racist (later repealed), that potential Palestinian compromises in peace agreements are illegal, and that Palestinian terrorist groups have a right to engage in what they euphemistically call “armed resistance.” All these statements are incorrect as a matter of law, and, fortunately, the UN has no legal authority to make any of these incorrect determinations binding.
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(3) “Regarding the Israeli settlements, clearly there is much room for negotiation between Palestinians and Israelis. The Palestinians will at some point have to accept Israel’s right to exist. But they cannot reasonably be expected to do this NOW when Israel will not even freeze the settlements de facto (in the face of all US and other pressure)”.
You say that the Palestinians cannot be expected to accept Israel’s right to exist in the absence of an Israeli settlement freeze. But, of course, that is precisely what the PLO committed to do in 1993 – 1994 within the framework of the Oslo Accords. And, of course, you must not forget that the Palestinians turned a deaf ear to Israel’s invitation to negotiate even though Israel unilaterally imposed a 10-month moratorium on settlement construction. The Palestinians can, if they choose, be unreasonable in negotiations and preconditions for negotiations. However, they cannot lawfully do so in contravention of international law and their prior commitments. The incorporation of a terrorist group (HAMAS) in their government, denial of the legitimacy of the Jewish state, continued resort to terror against innocent citizens (including infants and children),desecration of holy sites, refusal to resolve disputes by good faith negotiations and unilateral steps to alter the status of the disputed territories are all violations of their legal obligations. They cannot be justified simply because the Palestinians wish to take advantage of foreign political pressure to advance their position on settlements.
You are quite correct in not condoning the unilateral efforts of the Palestinian Arabs to seek UN recognition (again) of a State west of the Jordan River. As noted, this campaign violates both the letter and spirit of the Oslo Accords. It is also an exercise in futility that will only inflame matters. If the Palestinians do succeed in their UN gambit, the State of Israel would, in our view, be free to take any action with respect to the legal status of Judea and Samaria that it determines is appropriate in its national interest. The decision to annex any part of Judea and Samaria is first and foremost a domestic Israeli political matter. It is by no means certain that any such initiative would succeed within Israel, but Israel would be within its legal, historical and moral rights to do so, as we have pointed out above. Given the current disposition of the international community, any unilateral Israeli action, however justifiable, would not likely meet with diplomatic recognition. That, however, is besides the point. The Palestinian Arabs must understand that their actions have consequences. They cannot wily nilly disregard their international commitments (as they have consistently done) and engage in provocative diplomatic adventures aimed at damaging or delegitimizing the Jewish State.
Respectfully, L. Marc Zell, Adv.
Legal Forum for the Land of Israel
Quite so.
We must ALL make a point of never allowing this misuse of the word ‘occupied,’ ‘occupier,’ ‘occupation,’ etc — as applied to Israel — to pass, without vociferous and persistent challenge.
dweller, the Muslim world and the anti-Semites of the world have it all wrong, pay no attention to it.
Their aim is to convince the Jewish people that they are the occupiers and if its said often enough it will be believed.
Remember G-d led the Jewish people back to the Holy Land and its theirs with G-d given rights and don’t let them forget it.
The Palestinians are the occupiers and should be removed.
How may a country be said to ‘occupy’ what is — by law and history — her own?
‘Occupied’ is somebody else’s term for it.
The territories are not ‘occupied.’
They are LIBERATED.
If you like,
they are redeemed.
the “real” borders of Israel prior to 1967, the area occupied by Israel in the West Bank ….. has been occupied AS A CONSEQUENCE OF MILITARY CONQUEST,
The military conquest was a Defensive war against Jordan.
In which Israel recaptured what is legally, and historically hers.
The Brits (the French and the US) continuously try still today to undermine the Balfour declaration by any mean.
The war of the Western powers against the Jews continues relentlessly.
Only idiots do not see it.
Daniel Doron:
“[At] the Versailles conference… a deal was struck whereby the Arabs received 99 percent of former Ottoman territories [i.e., of Turkey’s Asian possessions — dweller] with the understanding that 1 [one] percent would become a national Jewish home.
“The Arabs took the 99 percent, and then reneged on the deal.”
Daniel Doron, “Poisoning the American Mind,” Jerusalem Post, 11 Mar 09.
Unanimously endorsed by the Council of the League of Nations, but not by King Sa’ud (although I assume you mean, Abdul-Assiz Ibn Sa’ud).
The sovereign from the Arabian peninsula at the time the League Council unanimously ratified the Palestine Mandate Charter was the HASHEMITE King Hussein [Sharif Hussein of the Hejaz, NW Arabia] — whose kingdom would be violently usurped & absorbed a few years later by Ibn Sa’ud of the neighboring, central plateau, the Nejd, with the assistance of his Wahabist associates.
It was Hussein’s son, the Emir Feisal (later to become the first King of Iraq), who had represented the Arabs at the Versailles Conference where the Arabs were promised that 99 percent of the land, and who agreed there — as part of the same deal — that that remaining one percent would go to world Jewry to restore the Jewish national home in Eretz Yisrael. Feisal’s relations with the head of the Jewish delegation at Versailles — Chaim Weizmann — were warm, cordial & cooperative.
An excellent article, although for non-lawyer readers, smaller words, sentences and paragraphs might help. A few other things one might add:
For the world’s powers to recognize the Jewish right was hardly unfair vis a vis the Arabs. After all, they got about 99 1/2% of the Middle East land (I forget the prceise figure) while the Jews got only their tiny but precious sliver along the Mediterranean.
Not only was the Jewish right endorsed unanimously by the world’s countries, but by the Arab representative, King Saud.
It should always be emphasized that Israel’s rights did not begin in 1947 and do not derive from the U.N. The connection has been there for millenia, and in the modern era the rights derive from San Remo etc. When Israel liberated Judea and Samaria, it did not “seize” anything; it recaptured what had been ripped off by Jordan. When Israel recaptured the Golan Heights, it recaptured an area meant for the Jewish Homeland that had been ripped off from it by an act of imperial arrogance.
It is also useful to point out that Jordan is an illegal occupier of 78% of the land intended for the Jewish State.
An excellent letter and response.
Eretz Israel territorial limits were those on record until invaded by a sequel of foreign powers. The same ones that since have presumed to have the right to allocate what was never theirs. Whatever the post Roman Empire inheritors arranged amongst themselves.
Israel never engaged on conquest Wars but responded to aggression and today resides within the historical bounderies of our Land. One may agree or not with “negotiating” with intent to relinquist some parts of our Land, yet that is not a recogniton of anyone else being entitled to that.
Most of us expect violence again on the part of the islamics.
They will find us prepared… And so will anyone else in any way acting in support of that violence,
Is the law of nations time bound? Begins to be considered from a specific date forward? If not, then in fact every nation would then be in violation.
Zell said it all. The people seeking the dismantling of Israel are not concerned with legality, nor is the UN General Assembly. The UN is a club, consisting mostly of small states led by dictators. The President of the United States chooses to accept the dictates of these leaders as binding law in the US and elsewhere. If the US voters, Congress and Supreme Court choose to submit to this foreign rule, they have the right of might to enforce their decision; the might of countless armed government agencies such as the BATFE, the IRS and Homeland Security; but they are destroying the rule of law and of decency, and will reap the consequences in short order. The “Christian Spring” is not far off, as is the “Jewish Spring”. Devils beware.
Just one comment to the excelent response from L. Marc Zell, Adv. He states:
Actually, the Mandates System (spelled out in Article 22 of the Covenant of the League of Nations) envisaged the creation of sovereign states after a period of “tutoring” by the Mandatory Power. The Supreme Council of the Allied Powers set up a number of Mandates, some of which with the express purpose of creating new sovereign states where none existed before. This was the case for Syria, Iraq, South West Africa (now Namibia) and others. All these decisions taken by the Supreme Council in the 1920s were carried out on behalf of the League of Nations which approved the mandates. The same applied to the “Jewish National Home” in Palestine, which was a future state in the making notwithstanding British efforts to oppose it.
Of course, as Zell aptly notes:
But without the legal framework put in place by the League of Nations, those Jews “returning to the Land of Israel” would have been considered as unlawful intruders with regard to the law of nations.