Is Netanyahu’s sovereignty plan contrary to international law?

Prime Minister Benjamin Netanyahu has committed himself to “apply sovereignty” to all Jewish communities in Judea-Samaria. Yet Alan Baker, a former legal adviser at the Foreign Ministry, has said that Netanyahu’s sovereignty plans are “contrary to international law.” 

 

As always, for complex legal issues, Baker’s viewpoint is not the only show in town. Netanyahu is “careful with words,” as The Jerusalem Post’s veteran correspondent Herb Keinon put it. Thus, Israel’s premier must be relying on legal experts other than Baker. The late Wallace Brand comes to mind: a retired, Harvard-educated US government lawyer, whose writings provided the legal underpinnings for application of sovereignty to the Jewish communities in Judea-Samaria. His analysis should be remembered now that the plan to apply sovereignty has been endorsed by Israel’s prime minister. 

 

In personal correspondence and in his writings, Brand explained that Judea-Samaria are “lands won by the Allies in a defensive war from the Ottoman Empire… Turkey relinquished its sovereignty over them… the Allies recognized the Jewish people as the rightful owners of the collective political right” to that territory due to “Jewish habitation for 3,700 years, and forming a sovereign nation with its capital in Jerusalem for many of those years and a vassal state for many more.” 

 

 The Balfour Declaration “recognized that… the Jews… would be able to exercise sovereignty… That right for Palestine was placed in trust until it was practicable for the Jewish people to exercise it,” Brand explained. He said that the conditions for Jewish rule were met in 1948 for a part of the territory of Eretz Israel/Palestine, and in 1967 for the remainder of that territory (e.g. Judea-Samaria). 

 

 Brand added that “These were the collective rights Chaim Weizmann wanted to save for the Jewish people when he persuaded the UN to adopt Article 80 of its Charter” and, due to that article, “the UN has no right to withdraw the previous adoption of the policy encompassed by the Balfour Declaration.” 

 

 Brand, an independent expert who was not an Israeli citizen, was a vociferous defender of Israel in the international legal community. Israel’s Deputy Foreign Minister Tzipi Hotovely, herself a lawyer by training, said of Brand that he “specialized in counter-attacking any Palestinian attack against Israel which cited ‘international law.’” Brand studied at Harvard Law School before working for the US Federal Energy Regulatory Commission and later at the Justice Department Antitrust Division. “Brand taught crucial legal arguments that would otherwise be forgotten,” Hotovely said, days after his death. In the era of courts (the court of public opinion and the “International Court of Justice”), educated Israelis must be cognizant of such arguments, and able to present them in civilized debate.