To better understand the legal status of Judea and Samaria under international law consider the following:
AXIOM: In 1967 Israel liberated occupied Jewish Palestinian territories. This was done not only for the enemies of Israel, but also to appease Allies and a majority of Israelis. However, the world community, and the enemies of Israel hold forth that during the Six Day War, Israel “captured” the same liberated Jewish Palestinian territories. Furthermore, Israel is accused of then installing its’ “settlers” with impunity and in obvious violation of international law. Which is true, the AXIOM of 1967 or the current interpretation of international law by the enemies and critics of Israel? For obvious current political and diplomatic reasons, the truth has been swept beneath a new wave of anti-Semitism. However, in order to clarify the legal status of Judea and Samaria under international law, we only need to examine HISTORICAL DOCUMENTS which many have chosen to forget or ignore. Upon examination of said HISTORICAL DOCUMENTS the only factual conclusion to arrive at is the critics (whether Arab, American, European, or the Israeli Extreme-Left) who accuse Israel of “occupation” are wrong.
Prof. Eliav Cho'hatman, lawyer and lecturer at the Graduate Institute of Law "Shaare Mishpat” wrote: "When I heard of two states for two peoples, I understood why ... Balfour and San Remo”. To understand this issue, we must go back to November 2, 1917. At that time, Lord Balfour, Foreign Minister of Great Britain, in writing agrees with Chaim Weitzman, then president of the World Zionist Organization. Lord Balfour, in an official letter to Lord Lionel Walter Rothschild, (honorary president of the Zionist Organization of England) writes that the UK is in favor of the establishment of a national home for the Jewish people in Palestine. This is the famous "Balfour Declaration" when in the aftermath of World War I, the League of Nations entrusted Britain with a mandate over Palestine.
Three years after the Balfour Declaration in 1920, a conference is held in San Remo, during which the great powers share the "spoils of victory”, namely the conquered territories during the war. At this conference, it was decided to introduce the 1917 Balfour Declaration, The San Remo Treaty of 1920 (its terms are in effect in perpetuity) and the British Mandate for Palestine as trustee for the Jewish people. This decision confirms the international recognition of the Jewish right to “self-determination” in Palestine. Furthermore, Britain is entrusted to work towards the realization of this statement (Balfour. note): “to found a national home for the Jewish people in Palestine." Furthermore, and of great importance, The San Remo Treaty, and documents thereto, DID NOT state of any other nation or people; ONLY the Jewish people were allocated ALL of Palestine.
It must be noted that including the incorporation of the Balfour Declaration in the Palestine Mandate of the United Kingdom, the text is the same international resolution supported by 52 member countries of the League of Nations, and the United States, which becomes a member of the international organization a few years later.
In paragraphs 5, 6 and 7 of the Protocol of San Remo, we read: "No territory of Palestine will be sold or leased or held in any way under the control of the government of any foreign power." Also: "The Administration of Palestine, while ensuring that the rights of other parts of the population are not altered, shall facilitate Jewish immigration under suitable conditions and encourage, in cooperation with the Jewish Agency The dense settlement of Jews on the land, including State lands and waste lands not required for public purposes."
Furthermore, the text states: "The Administration of Palestine is responsible for the adoption of a law on nationality. Must be included in this law provisions framed so as to facilitate the acquisition of Palestinian citizenship by Jews who acquire permanent residence in Palestine." At that time, it must be remembered, Palestine is not just the West Bank of the Jordan, but also, and most importantly (at 70% of the territory) the East Bank, where today is located the new State of Jordan. Per the above stated documents, Jordan is in fact unlawfully occupying land which belongs to Israel.
Mi'kmaq of the British Empire:
What happens next is related to internal political changes in Britain and the election of a government hostile to the creation of a Jewish homeland throughout the territory of Palestine. Britain, having clearly supported the conclusions of the San Remo Conference of 1920, decides to change its’ mind. Britain begins to weave tenuous diplomatic ties with the Arab countries surrounding the area of Palestine and with several Arab leaders in an effort to control natural resources, such as oil. It was after this rapprochement in 1921 that Transjordan is created. Transjordan is a semi-autonomous state compared to the British, led by Abdullah Hussein, son of Sharif Hussein of Mecca Ibn Ali, and great-grandfather Abdullah, the current king of Jordan.
In regards to the West bank of the Jordan River, and the West Bank - Judea and Samaria - nothing changed: these regions are still part of the territories over which should be established the Jewish national home.
According to many lawyers, including Prof. Dr. Cho'hatman with Talya Einhoren and American lawyer Eugene Rostow, (one of the drafters of the famous U.N. Resolution 242), the Partition Plan of 29 November 1947 DOES NOT change the legal right of Israel either. Indeed, having been adopted by the U.N. General Assembly and NOT by the Security Council, the Partition Plan cannot be considered legally binding. At most, it is only a recommendation that only obtains legal validity upon endorsement by the parties in question: The Jews and the Arabs. It must be noted, since the Partition Plan was rejected by the Arab powers, its status remains protocol.
For other lawyers, ignoring documented claims, the Partition Plan has somehow transformed the Judea and Samaria territories into a status which remains cloudy. On one hand, they are not part of the state of Israel created in 1948. Yet, Judea and Samaria do not belong to Jordan which occupied the territory during the War of Independence until the 1967 war liberated it.
The Jordanian occupation Did the Jewish people lost temporarily the rights to Judea and Samaria with the Jordanian occupation between 1948 and 1967? For many lawyers, the answer is no. Jordan formally annexed the West Bank on April 24, 1950. However, the annexation was held illegal and void by the Arab League and others. Jordan proclaimed sovereignty of the territories the support of only two countries, Britain and Pakistan. Moreover, the same Jordan decided in 1988 to abandon its sovereignty in Judea and Samaria. Incidentally, the term West Bank would therefore no longer be needed.Does the dissolution of the League of Nations, which was replaced by the UN, and the end of the British Mandate for Palestine cause any change in the rights of the Jewish people to their land? Again, the answer is no because, under section 80 of the UN Charter, "nothing in this Chapter shall be construed as affecting directly or indirectly in any manner the rights whatsoever of any states or any peoples or the terms of existing international instruments to which Members of the Organization may be parties. " Clearly, this means that the UN is committed in 1945 to protect the legitimacy of the Jewish land rights established by the League of Nations.
For Professor Eugene Rostow, mentioned above, the UN CHARTER above clearly holds that "the right of the Jewish people to settle in the land of Israel has never been interrupted on all the territory west of the Jordan River, and since a peace agreement has not and will not be signed between Israel and its neighbors.” He later wrote that "Israel has an undeniable right to establish settlements in the West Bank."
No unilateral approaches Did the Oslo agreements affect the status of Judea and Samaria under international law point of view? Again, the answer is to be found in the texts themselves. Indeed, it is stated in the preliminary agreement in 1993 that the final peace agreement will be signed by both parties "through negotiations". The agreement called Oslo II, ratified in 1995, provides for its part that neither side "does not initiate or commence proceedings can change the status of the West Bank and the Gaza Strip to the end of negotiations on the final peace agreement." In other words and clearly stated, ANY unilateral approach - such as the announcement in September by the Palestinians of an independent state - will therefore be in stark contrast not only with the Oslo agreements, (which may be null and void), but also with resolution 242 of the UN that supports each party has the right to "live in peace within secure and recognized borders." The borders of a Palestinian state proclaimed are of course far from being "secure and recognized" the point of view of Israel ... Incidentally, Resolution 242 does not speak of at all about ''Palestinians'', but only of existing states, that is to say, Jordan, Egypt and Syria.
The above text and documents, written in black and white and dating, for some, a century old are easy to read and understand. Yet, it seems hardly anyone in the Prime Minister's office, the Minister of Foreign Affairs, or that of Hasbara, has taken the time to build a strategy based upon these documents. Documents which clearly prove Israel is NOT the colonial and occupying power it is accused of being since 1967.
Moreover, when considering the media archives that preceded the Oslo Accords, it is evident that the official Israeli narrative concerning the Israeli presence in the West Bank was much less ''scared'' than it is today. Until 1993, Israel gave the impression of much less need of justification for founding Jewish settlements beyond the Green Line. Until that time, Israel did not seem to beg for the international community, and the Arab world in particular, to grant Israel the ultimate favor of keeping the famous "settlement blocs." According to Prof. Eliav Cho'hatman, lecturer at the Graduate Institute of Law "Shaare Mishpat”: “there is no doubt that the Oslo Accords marked the starting point of this attitude” which he deemed as "catastrophic." He explained, “Until then, our leaders did not hesitate to brag of our rights over all the land of Israel from the point of view of international law, but since the agreements were signed, only security patterns are referred to beg that part of these territories we are entitled to remain in our hands." Prof. Cho'hatman says he sent to Prime Minister Binyamin Netanyahu during his first term (1996-1999) his work on the above, but regrets such effort was to no avail.
Do not just be right, but also know. There are other arguments for the legitimacy of the Jewish presence in Judea and Samaria. For example, the fact these territories cannot be considered ''busy'' since they do not belong, de facto, to an enemy state. Nor can be considered the inconsistency of the term ''1967 borders”, which are NOT “borders” but the cease-fire line between Israeli and Jordanian armies at the end of the War of Independence of 1948. Based upon Documents and International law, the only fully supported rational legal conclusion is Israel has the right to full expectations of “TERRITORIAL INTEGRITY”. As such, and under International Law, any imposition by force or coercion of a border change is “an act of aggression”. Yet the above arguments are not raised. The reasons? They are many: Israel and the Israelis became convinced themselves that they were a colonial power and archives in the world will not be able to release this distorted image. Also in Jerusalem, it probably feels that right or not right, the world has already chosen sides. In the corridors of the Foreign Ministry, it is even said that under international law, "it is 99% opinion, and 1% policy of law." But in Israel, there is another expression that says it is not enough to be right, but you must also be smart. Thus, it is time now for the good of the State of Israel, to be smart and to make the world know what is right.
The Jewish and Arab Refugee resolution
Since the late 1940's the Arab States have expelled over a million Jewish people. The Arab States confiscated Jewish assets, businesses, homes and Real Estate which amounts to approx. 120,440 Sq, Km. or 75,000 sq. mi. The confiscated land is about 5-6 times the size of Israel and with the other confiscated assets is valued in the trillions of dollars. The Arab States, like the Nazis, could not then, and cannot now justify such confiscation. The State of Israel has resettled the majority of the million Jews expelled from the Arab countries in Greater Israel. The Arabs claim that about 600,000 Arabs were displaced from their homes during the 1948 war. What seems to be forgotten is the fact most of the Arab population abandoned their homes at the request of the 5 Arab Armies who were sure to defeat the newly reconstituted Jewish State. About 300,000 Arabs stayed.
Since then the Arab and Jewish population has increased dramatically. Many new Arabs have moved into the area and many new Jews from the Holocaust and other areas have immigrated to Israel. It is about time that the Arab countries that expelled over a million Jews should resettle the Arab refugees in their vast lands. Instead of funding weapons and war, the Arab countries should utilize the funds to help the Arab refugees to relocate, build housing, schools, commerce and industry and resolve this tragedy once and for all. This simple solution will bring peace and tranquility to the region.