Guest Post: Arial Conference Part VI – The Position of Judea and Samaria in International Law

This post is part six in a seven part series discussing the Arial University Conference.  These are notes taken by Mark L. Levinson.

The Position of Judea and Samaria in International Law

Marc Zell, an attorney and a member of the board of governors at the Ariel University Center, did not let the next session start before pointing out that women were fairly represented this time, being 50% of the group on stage.

He recounted that the Ariel University Center had sent a team from its school of architecture to Spain as competitors in a “solar decathlon” only to have them disqualified on the grounds of European Union guidelines regarding occupied territories. Zell sees the incident as a grave one because the delegation came to Spain under a valid contract, enforceable under Spanish law.

Zell quoted Abba Eban, as interviewed by Edward R. Murrow: “International law is the law that the wicked do not obey and the righteous do not enforce.” Zell went on to review some history. When Israel was founded, David Ben-Gurion’s attitude was that since the United Nations was not bothered by Arab attacks across the borders that it had suggested, Israel would not be bound by those borders. The world at large accepted the ceasefire lines at the end of the War of Independence in place of the UN-suggested borders. The USSR was an exception, and of course so were the Arabs. It was because of the Arabs’ opposition that the ceasefire lines did not become borders.

Following the Six Day War, Israel extended the jurisdiction of its law to further territories including East Jerusalem. This was not a case of annexation because of what is known formally as the missing reversioner: no one else had legal sovereignty in those territories when the war started. We crossed no border when we took the territory in self-defense and by historic right. Nonetheless, the world expects Israel to abide by the Geneva Conventions with respect to the West Bank and Gaza because of the belief that the Geneva Convention applies if force was used.

Having rejected the 1949 ceasefire lines as borders, the Arabs insisted after 1967 that those were indeed borders and that Israel must withdraw to them.

Why is it that the world, which was content with Israel’s acquisition of extra territory in the War of Independence, did not want it keeping territory won in the Six Day War? One reason is that for demographic reasons, Israel did not extend the jurisdiction of its law over the territory won in 1967. Another reason is that Jordan withdrew its claim to sovereignty over the West Bank (although only Britain and Pakistan had recognized Jordanian sovereignty there anyway). With Jordan out of the picture, the Palestinian Arabs were in a stronger position to claim self-determination. The Oslo agreements too strengthened that claim with a sort of recognition. So the situation is not what it was.

International law works fine between friendly nations but it doesn’t look promising where nations conflict regarding matters vital to their existence. On the one hand, we should uphold the legal legitimacy of our position. On the other hand, we should not expect a legal solution until we already have a political solution.

Nothing wrong with population exchange

Talia Einhorn, a visiting professor of law, continued the point. She said that although the law will not solve our problem, the rhetoric of law is the framework in which the problem is debated.

She presented her own review of our history, noting that for centuries no one valued the country, no one made Jerusalem their capital. The British mandate was unique in that whereas other mandates were dedicated to the wellbeing and development of the people presently residing in the territory, the British mandate was explicitly dedicated to helping Jews return and settle the land. Not that we are here by grace of the mandate, or that the British obeyed its stipulations. We are here because we proved able to defeat our enemies. It is our responsibility to defend ourselves, and we should rightly hold other states responsible for any attacks from within their borders.

Population exchange is not unthinkable. The exchange of populations in Cyprus was rewarded by a Nobel Prize. Only here in Israel is there a government that finds itself expected to take responsibility not only for those of its own people who are refugees but for the other side’s refugees as well.

Self-determination can’t be for everyone at once

Professor Michal Pomerance of the Hebrew University agreed that our conflict is taking the form of lawfare, battles of legal rhetoric.

We need to base our arguments not only on justice as we see it but also on what is likely to persuade others. Unfortunately, what were once some of our best arguments are no longer even on the table. Why is that? Were they poorly presented to academics, the press, and other opinion-makers? Were they poorly timed?

It seems that since the Oslo agreements, more countries have turned against us; but Israel itself has had a part in making reversion to its old stands difficult.

Especially since the aftermath of World War I, the slogan of self-determination has been a powerful one but much misunderstood and oversimplified. The words of the Talmud could be turned into useful advice for anyone claiming the right of self-determination: “Be aware of where you came from, where you are headed, and who will be rendering judgement.”

Unfortunately, the kneejerk majority of the UN and European Union have adopted a self-determination resolution that legitimizes their anti-Israeli stance while they ignore the same standard’s applicability to other countries. Although the UN resolution is not a binding one, it does have its impact.

Until the 1960s, self-determination was treated as a political principle rather than as a human right. Robert Lansing, a US secretary of state after World War I, recognized its ambiguity. Evidently Sir Ivor Jennings, an authority on constitutional law, said that “the people cannot decide until someone decides who are the people.” (My notes imply that Prof. Pomerance’s speech attributed that quotation to Lansing. In 1921 Lansing said, to the same effect but less wittily, “Without a definite unit which is practical, application of this principle is dangerous to peace and stability.”) Is the unit with the right to self-determination a unit of race? Of geography? Of community? And in which chapter of the history book do we seek that unit?

Self-determination is not something that can be viewed in all-or-nothing terms. Israel is not a colonialist enterprise.

If the UN and EU have the authority to cut through the ambiguity and decide who the “self” is that deserves self-determination, then their perception is all that counts. The Arab side understands this and works to legitimize itself and delegitimize us. It strives to anchor Israel in the Holocaust rather than in the British mandate.

We should invoke the British mandate as proof that the right of the Jewish people to the Land of Israel was formally and internationally recognized in advance of the Holocaust. However, we should not imply that the terms of the mandate have legal force today. The mandate has lapsed, and today as a source of practical legal precedent it is more useful to the Arabs, because the mandate led up to the partition plan of 1947, than it is to the Jews.

We shouldn’t renounce the Oslo agreement, and we should remember we accepted the Road Map. Where we should make a stand is that negotiations do not restart from the point where the other side rejected or violated the deal. We should point out the flaws in the Arab arguments and stress that to delegitimize us is illegitimate.