International law and the State of Israel

By Ted Belman    July 2018

For thousands of years, nations came and went, pursuant to the rule, to the victor go the spoils. This included the right to rape the women, enslave the men, confiscate their wealth and rule the country as they saw fit.

By the beginning of the nineteenth century, this rule had changed considerably but the right of the victor to change borders and transfer populations of conquered countries was enshrined in international law.

So, in accordance with international law, the victors of WWI, Great Britain, France and the US negotiated the Versailles Treaty and forced Germany to accept it. This treaty changed borders of the defeated nations and moved populations. Their right to do so was never questioned.

Similarly, Britain, France, Italy and Japan met in San Remo in 1920 to dispose of the Ottoman Empire. They decided to break it up into various countries. These countries would start as Mandates under the newly formed League of Nations and would remain so until they were ready for independence.

(Yet, the Palestinians and other Arabs refuse to accept that the victorious powers had the right to create Israel.)

In deciding what countries to create, they held hearings, recorded evidence and then made decisions which were set out in the San Remo Resolution. It is argued by leading authorities that the decisions were Res Judicata i.e., legally decided. In other words, they were legally binding.

One of those decisions was to create the Palestine Mandate, which would become the Jewish Homeland. In accordance with this intention, the Jews were given the right of close settlement of the land. The land covered by that mandate included all of what is now Israel and Jordan.  Two months before this document was signed by the League of Nations, the Mandatory Power, Great Britain, inserted a new clause in the draft mandate which restricted the area of close settlement by Jews to the lands west of the Jordan River. This was in violation of what had been decided at San Remo but no one cared, except the Jews.

The land east of the Jordan River was called Trans-Jordan and it’s rulers declared independence as Jordan in 1946.

After WWII and the crushing defeat of Germany and its allies, the victors changed borders and moved populations. It was their right.

Der Spiegle reported;

“But the people fleeing the Red Army were unaware that the Allies had already agreed with the Polish government-in-exile to hand over large parts of eastern Germany to Poland and resettle the Germans who were living there.

“All those who didn’t manage to escape in time fell victim to the frenzied expulsions that were carried out until July 1945. The organized resettlement of Germans and ethnic Germans from Germany’s former eastern areas and the Sudetenland began in January 1946. In all, some 14 million Germans lost their homes.”

These expulsions were often done in a brutal manner and were carried out as part of a broader programme of nation-building pursued by the new communist government between 1945 and 1949. “The centre-piece of this programme was an attempt to achieve the ethnic homogenization of the state, to ensure as close a match as possible between its ethnic and political borders.”

At no time did the allies object to this “ethnic homogenization”.

The flight of the Arabs from the Palestine Mandate and Israel, whether voluntary or forced, must be viewed in this context. It happened at the same time. The hypocrisy of the West is glaring. In post war Europe, they insisted on the ethnic cleansing as the path to stabilization and peace whereas in the case of the “Palestinian refugees”, the UNGA passed Res 194 in Dec 11/48 even before the war was over in which they recommended that the Refugees should be permitted to return. Fortunately for Israel, a  recommendation has no binding affect and can be ignored.

On November 29, 1947 the newly formed United Nations, which took over from the now defunct League of Nations, passed non-binding Res 181 in the General Assembly which proposed a line partitioning the land west of the Jordan River, between Jews and Arabs and invited both to declare independence over their respective parts.

The Jews accepted the invitation and declared their state of Israel on May 18, 1948.

The Jewish Virtual Library recalls:

“Before the United Nations voted in favor of the Partition Plan on November 29, 1947, the Arab Legion of Jordan attacked Jerusalem. Their forces blocked Jerusalem’s roads and cut off the city’s access to water. After bitter fighting, the Jewish Quarter of Jerusalem’s Old City fell to the vastly superior arms and numbers of the Arab Legion. The surviving Jewish inhabitants fled to the “New City,” the four-fifths of the capital that Israel successfully held.

“Nearly twenty years later, during the 1967 Six-Day War, Israel’s army liberated Jerusalem’s Old City, finding the area completely neglected and virtually destroyed.

“All but one of the thirty five synagogues within the Old City were destroyed; those not completely devastated had been used as hen houses and stables filled with dung-heaps, garbage and carcasses. The revered Jewish graveyard on the Mount of Olives was in complete disarray with tens of thousands of tombstones broken into pieces to be used as building materials and large areas of the cemetery leveled to provide a short-cut to a new hotel. Hundreds of Torah scrolls and thousands of holy books had been plundered and burned to ashes.”

“So much for the Arab respect for Jewish holy sites and their regard for the Al Aksa Mosque situated on the Temple Mount, which they today claim, is the “third holiest site in Islam.”

The Arabs on the other hand rejected Resolution 181 and declared war rather than a state. Not until the Arabs were losing the war in 1949 did the international community arrange a ceasefire. The ceasefire line was based on who controlled what and thus Israel ended up with more lands than the Res 181 had set aside for them.

The Israel-Jordan Armistice Agreement, was signed on April 3, 1949 and Israel became a member of the UN on May 11, 1949.

This armistice agreement made no mention of what to do with the newly created refugees even though Jordan had raised the issue.

Jordan ended up in possession of the West Bank and of the Old City of Jerusalem and formally annexed them. The international community, except for three countries, rejected this annexation.

So clearly the West Bank does not belong to Jordan or the Palestinians for that matter, and Israel itself was legitimately created.

So, who does the West Bank, otherwise known as Judea and Samaria, and the Old City, belong to?

Some people argue that the Palestinians have a right to create a state there but they never quote the legal foundation for such a right. They simply reject the Balfour Declaration and its implementation. They claim that they, the Arabs, are indigenous to the area and therefor entitled to sovereignty over the land but international law does not support such right.

Professor Eugene Kontorovich is the head of the international law department of the Kohelet Policy Forum and a fellow of the Jerusalem Center for Public Affair. He answers the question, “how can the legal position of Judea and Samaria [West Bank] be defined?”, in Israeli rule in the West Bank is legal under International Law .

“The question that should be asked is: What were the borders of Israel when it was first established? What defines this is the borders at the moment of independence. Israel was created, like most countries, after a successful war where no one came to its aid. In international law, there is a clear rule regarding the establishment of new countries: the country’s borders are determined in accordance with the borders of the previous political entity in that area. So, what was here before? The British Mandate. And what were the borders of the British Mandate? From the Mediterranean Sea to the Jordan River.”

Thus, he argued, Israel liberated its own territory in 1967. Therefor the Fourth Geneva Convention (FGC) does not apply and the settlements are legal. And if the FGC doesn’t apply then Israel has the right to expel Arabs from these territories just as the victors expelled Germans from the land they conquered.

The international community chose not to see it that way and passed UNSC Res 242 at the end of the Six Day War in 1967. It began with a misstatement of the law, when it recited; “Emphasizing the inadmissibility of the acquisition of territory by war…” In fact, International law holds that victors, in a defensive war, can keep the land acquired.

Nevertheless, the resolution did not demand that Israel withdraw from all territories but gave her permission to remain in the territories until the following conditions were met:

“Termination of all claims or states of belligerency and respect for and acknowledgment of the sovereignty, territorial integrity and political independence of every State in the area and their right to live in peace within secure and recognized boundaries free from threats or acts of force;”

Clearly these conditions are far from being met.

It is worth noting that the 67 War was a continuation of the 48/49 war and was made necessary by the violation of the ’49 Armistice Agreement by the Arabs. Looked at in this light, Israel totally defeated the Arabs just as the Allies totally defeated the Germans and their allies after WWII. Thus, Israel has every right to reject the return of any Arab refugees and to keep all the lands acquired to the Jordan River.

January 20, 2024 | 14 Comments »

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  1. The word “Arab”: does not occur Palestine mandate document approved unanimously by the League of Nations in 1922. Neither does the word “Palestinian.” The word “:Muslim” does occur in the the document with reference to “Muslim wakfs,” or nonprofit benefit societies devoted exclusively to serving the needs of Muslims, such as charity for the Muslim poor. The document promises to respect all wakf property-probably including the Wakf that owned the land where the mosques were built on the site of the Temple Mount. But the only other promise made to Palestine’s non-Jewish inhabitants is to respect the “civil and religious rights of existing non-Jewish communities.” On the other hand, a promise to promote the “establishment of a Jewish national home in Palestine is mage repeatedly, especially in the early paragraphs of the document. The document even gives the “Zionist organization” comsiderable authority to build the Jewish national home, in effect making it an authority that would share in the trust given to “:His Britannic Majesty,” and be the secondary trustee for the land. This also implies that when and if the British ever withdrew from Palestine, the Zionist Organization would as the secondary trustee would become the government of the country. And that is more or less what happened in 1948.

  2. Are there any lessons to be learned from Shigemetsu’s life that is relevant to Israel and the United States? I think so. What if the United States and/or Israel had a foreign minister who was as courageous as this guy, and was propared to “speak truth to power” and openly and firmly criticize “Uncle’s” treacherous behavior and confront :Uncle” and demand changes of policy and honesty.

  3. Mamoru Shigemitsu is the name of the Japanese diplomat who signed the official Japanese surrender document on the USS. Missouri. According to his biography on Wikipedia. Shigemitsu worked tirelessly between 1931 and 1941 to persuade the Japanese government to maintain peaceful relations with China, Britain, and the United States, and all other countries, and to withdraw all Japanese military forces from all occupied territories. He advocated a peace treaty between Japan and China that recognized China’s sovereignty over all of its internationally recognized territory, and renounced Japanese claims to any Chinese territory. He advocated that such a treaty would recognize China and Japan as co-equal neighbors .
    He opposed Japan’s
    invasion of Manchuria in 1931 and 1932 and its invasion of the rest of China in 1937.After Japan did invade China in 1937, he urged an immediate withdrawal of all Japanese troops.

    In 1941, he tried to persuade the Japanese authorities not to attack the United States and Britain. He urged the imperial government to sign a treaty of alliance, including a military alliance, with the United States instead. He tried to arrange a
    personal meeting between the Japanese Prime Minister at the time and President Roosevelt. He visited Washington, D.C., where he urged the Japanese ambassador to the United States, also a good guy, to continue his negotiations with the U.S. secretary of state in a last ditch effort to avoid war.

    Obviously, the Japanese military leaders considered Shigemetsu with all his peace mongering to be a royal pain the ass and in a thorn in their side. However, when MacArthur demanded a formal and public surrender, what was left of the Japanese government suddenly remembered Shigemitsu, re-appointed him foreign minister, and made him suffer the disgrace of being the head of the delegation that signed the surrender on the deck of the U.S.S. Missouri.

  4. As far as J&S are concerned, let me remind the readers once more that possession is better than all the arguments. At this point, Israel has possession but for some completely stupid reason, Dayan gave away the authority to rule the holy sites to the Waqf. This needs to be corrected and if memory serves, the Waqf actually proposed not long ago to depart and “let the Jews face the music”.
    The only real fly in the ointment is the Gaza strip which, it seems, nobody wants. Of course the Arabs use it regularly as a stumbling block to any agreement as Donald will soon find out once more. I hope he has a plan B for this situation.

  5. I made a significant amendment to the article this morning.

    The problem was that I equated WWII with the War of Independence.. That was very wrong because the victor in WWII totally vanquished the enemy but in the W of I Israel was happy to accept a cease fire.

    But I went further and said the 67 WAR was a continuation of the W of Independence. In that war Israel totally vanquished the Arabs.

  6. @ Russell:

    I agree wholeheartedly with your benign post, and thank you indeed for the blessing.

    However, I would doubt that the Canadian Liberal Party is embarrassed. the word embarrass and politician are mutually exclusive, They have skins which would make elephants envious.

    Any party, or indeed country, which could propose and elect an Islamic loving cretin like Trudeau is far beyond being embarrassed by anything Just my opinion.

    ******There is a medical term below “cretin” but above “idiot”, which I can’t think of, but that’s where I would place Trudeau. (It may be “imbecile”)*******

  7. @ Edgar G.: Thanks Edgar G. Corrections accepted, no anexation, just build and settle the land. As you say, Britain was extremely dishonorable in its dealings with Israel and continues to betray them at the UN by weal abstentions rather than opposing and vetoing ludicrous resolutions. I’m British and somewhat ashamed at this behaviour but not surprised at the extent of it. Thanks again for the information. G-d bless you, Ted, all supporters of Israpundit. And of course Israel. Not surprised by this article being taken down by MSM Fake News Canada. Liberals hate the truth it spoils their agendas and embarrasses them.

  8. @ Russell:

    Israel should have no need to annex what already legally belongs. As fro the \british betrayal, that would make a wonderful, and apt title of a book “The British Betrayal Of The Jews”….. They did betray not just this once, but on continuing basis. Apart from appointing Herbert Samuel as High Commissioner, from then on it was a downward slope, temporarily halted in 1925 by the appointment of Lord Plumer, a dedicated, and honest British general of fame gained in WW1.

    The British officials were almost to a man, Arabophile and anti Jew. They helped the “Grand” Mufti Al Husseini in his plotting against the Jews, Husseini had been placed in an artificially made position by Samuel who thought to appease the Arabs. They actively provided information and weapons to the Arabs and placed stumbling blocks at the feet of the Jews. They acted as Sovereigns rather than as Trustees.

    Through the 1930s, the British Govt. made laws which hindered Jewish immigration, and helped the Arabs to increase their majority, culminating in the infamous Chamberlain 1939 “White Paper” which allowed only 15,000 Jews to immigrate per year to a maximum of 75,000 total. Any more could only be allowed if the Arab majority approved.

    Well… Thanks to our strong spirited Jewish heroes, we eventually prevailed and chased the British out.

    The British “may” have talked to the French about it, The French were difficult, and didn’t trust the British, especially since Feisal, the eldest son of Sherif Hussein of Hejaz, an ally of the British, had sat himself on the throne of Syria in Damascus, a part of the French Mandate.. The French hearing of this, promptly chased him away.

    The British, then appointed Feisal as King of Mesopotamia. Around the same time, the British,gave Trans-Jordan, which they previously reserved from Mandatory Palestine, to Abdullah, ostensibly to deter him from attacking the French to avenge his family honor, “wounded” by kicking his brother Feisal out of Syria.,

    It’s very likely that the British had prepared for this event in advance, and even if they did consult with any other powers, they likely gave specious reasons for it. In the Mandatory Agreement there was a clause which forbade the offering or giving any part of the Mandate away to another.. However, The British Empire was the major actor in the Great War victory, and as always, ruthless in their rarely honest, devious genteel way.

  9. I hold that Britain betrayed Israel by taking Mandated land and creating Trans-Jordan. I don’t know if this was a unilateral decision or with approval of the L of N. Can Ted or one of you learned commenters. help me out here? Statutes, Agreements perhaps. I also agree that the trrm Palestinians is a misnomer, they are Arabs and since most of those in Gaza were born there, they are Gazan Arabs. I love Israel, a brave and tolerant nation but whilst calling upon Hashem, it shows a lack of faith by not taking His promises and rather obeying UN and International opinions by not annexing lands that rightly belong to Israel. May G-d Bless Israel.

  10. Edgar G. Said:

    I believe, this should read, “local Arabs as well as other Arabs”…or just “The Arabs”

    Absolutely. Why should we adopt misleading definitions?

    “Some people argue that the Palestinians have a right to create a state there but they never quote the legal foundation for such a right.”

    This is one of those unfortunate formulations that leaves many an unsuspecting reader misinformed.

    As if some hypothetical beings, so-called ‘Palis’ have supposedly an alleged right to a State located on top of the land of Israel. But this is ridiculous.

    Israeli Jews, today make up 80% of the inhabitants of the State of Israel, and they determine that Israel is a Jewish State. That by the way is most fundamental democracy.

    Thus the sentence above could be rephrased for example:

    “Some people argue that Arabs have a right to create a state there, displacing the rights of the 80% majority of the citizens who are non-Arab”

    That alone puts the argument by ‘some people’ to shame and ridicule.

  11. Can we assume that Britain cut off the “East Palestine Province of Trans-Jordan” unilaterally, without the permission of the other 3 major Powers…

    A point; near the beginning of the article, an excellent, easily understood and accurate one in my opinion, there is a sentence (in parentheses) which refers to “Palestinians and other Arabs”. I believe, this should read, “local Arabs as well as other Arabs”…or just “The Arabs” or “The Arab countries”. In no way are “Palestinian” Arabs different from any other of the 350 million Arabs in a variety of countries. This, according to numerous assertions by prominent Arab leaders, historians and others.

  12. Only one is at fault, the STATE of ISRAEL. The’ve allowed others to determine ISRAEL’s rights to it’s land. the’ve ruled using jurdan law. They treat citizens as horse manure, surprised JEWS of J-S don’t need passports and visa to come and go.

  13. International law holds that victors, in a defensive war, can keep the land acquired.

    “how can the legal position of Judea and Samaria [West Bank] be defined?”, in Israeli rule in the West Bank is legal under International Law .

    “The question that should be asked is: What were the borders of Israel when it was first established? What defines this is the borders at the moment of independence. Israel was created, like most countries, after a successful war where no one came to its aid. In international law, there is a clear rule regarding the establishment of new countries: the country’s borders are determined in accordance with the borders of the previous political entity in that area. So, what was here before? The British Mandate. And what were the borders of the British Mandate? From the Mediterranean Sea to the Jordan River.”

    Pro Israel commentators should use the above positions in debates on Israel’s legal rights in Judea/Samaria.

    Also for the Golan it is applicable that, “International law holds that victors, in a defensive war, can keep the land acquired.” The Syrians attacked Israel for 19 years from 1948 until 1967. They forfeited their rights to the Golan due to this. Israel can not be safe from attack without the Golan Heights.