Matthew M. Hausman, J.D.Matthew M. Hausman is a trial attorney and writer who lives and works in Connecticut. A former journalist, Mr. Hausman continues to write on a variety of topics, including science, health and medicine, Jewish issues and foreign affairs, and has been a legal affairs columnist for a number of publications.
Part II: Alternatives
In determining the permanent status of Judea and Samaria, many advocates believe Israel instead should be guided by the principles laid out at the San Remo Conference of 1920, during which the Supreme Council of Principal Allied Powers made decisions implicating the future of the territories they liberated from the Ottoman Empire during the First World War.
The Council, among other things, incorporated the Balfour Declaration into its program and recognized that the Jews comprised a people defined not solely by religion, but by nationality and descent as well. Moreover, it recognized that the Jews were indigenous to the Land of Israel and, accordingly, that they had the right to self-determination in their homeland.
The Mandate for Palestine of 1922 further guaranteed the right of “close settlement,” which recognized that Jews could settle anywhere west of the Jordan. No similar recognition was accorded Palestinian-Arab nationality at that time because it simply did not exist.
Rather, the local Arabs considered themselves to be culturally part of the greater Syrian community, and much of their population had accrued through late migration into the area only after the Jews had begun rehabilitating the land and creating economic opportunities that did not exist elsewhere in the Mideast.
The acceptance of the San Remo program by the League of Nations – and the restatement of its ambitions in the 1922 Mandate for Palestine – evidenced an acknowledgment of the Jews’ status as an indigenous people and their right to settle anywhere in their homeland, including Judea and Samaria, and thus underscored the legal basis for the reestablishment of the Jewish state.
Consequently, traditional recognition of the Jews’ indigenous rights should inform any proposals for resolving the Arab-Israeli conflict. This would be consistent with the ideals set forth in the “Declaration on Rights of Indigenous Peoples,” voted on by the U.N. in 2007. Of particular relevance is the language contained in Article 10, which states:
"Indigenous peoples shall not be forcibly removed from their lands or territories. No relocation shall take place without the free, prior and informed consent of the indigenous peoples concerned and after agreement on just and fair compensation and, where possible, with the option of return."
Though the true intent of this nonbinding declaration may have been to promote the Palestinian cause at Israel’s expense, it cannot be divorced from the long-standing recognition under international legal conventions that the Jews are indigenous to the Land of Israel. Accordingly, it implicitly reinforces the Jewish connection to lands the Palestinians now attempt to claim as their own, and provides justification for potential resolutions that are premised on legally-cognizable Jewish claims, rather than on politically-motivated or apocryphal Palestinian pretensions.
If a state of Palestine were to be created, any policies requiring the ethnic cleansing of Jewish inhabitants would violate international law as recognized at San Remo and under the original Mandate for Palestine, which the United Nations is currently bound to honor by virtue of Section 80 of the U.N. Charter.
Such ethnic cleansing would also contravene the precepts set forth in the Declaration on Rights of Indigenous Peoples and other conventions.
In order to exist in compliance with international law, such a state would have to provide for the Jews – as indigenous people – to remain on their ancestral lands in Judea and Samaria. It would also need to recognize the Jewish right of close settlement. Jewish residents of such a state would have to retain Israeli citizenship and be governed by Israeli law, and the Arab state subsuming their communities would have to recognize Israeli sovereignty within their enclaves.
Jews wishing to travel to Israel proper would have to be free to do so without harassment. Such arrangements exist in other parts of the world, for example, in North America, where Alaskans cut off from the mainland United States are permitted to travel through Canada in order to visit the lower Forty-Eight, or in Europe where citizens of EU countries are permitted to travel across national borders unimpeded. Indeed, the Quartet seeks to impose just such an arrangement on Israel by demanding that Gaza be connected by a corridor to a Palestinian State in Judea and Samaria.
It is unlikely, however, that a Palestinian state would recognize any Jewish rights or permit Jewish residency. It is equally unlikely that it would recognize Jewish autonomy or Israeli sovereignty.
A more realistic scenario – if there is to be a Palestinian entity – might be the creation of a federation or confederation in which some of the territories currently under Israeli administration would be linked with Jordan, where a majority of the population already identifies as Palestinian. A “confederation” could be created by ceding some territory for a semi-autonomous region that would then be joined with Jordan under an umbrella government of general, limited powers.
The concept of confederation provides that Jordan and a Palestinian entity would each maintain individual sovereignty and would exercise unilateral powers outside the scope of the general government’s jurisdiction. The authority of the general government would be limited to those powers specifically agreed upon by the constituent entities.
The risk of confederation, however, is that the entities could elect to separate in order to establish an independent Palestinian state.
A similar but distinct concept is “federation,” in which sovereign authority would be constitutionally allocated among the member states and the general government, but in which the structure of government could not be altered by the unilateral acts of its constituents. That is, neither entity could dissolve the union in order to establish an independent Palestinian state.
Such a federation would consist of Jordan and a Palestinian entity created on land transferred from Judea and Samaria, but would not include Jewish towns or population centers. Likewise, Israel would retain control of all land necessary to ensure her security and to protect her water rights in the Jordan valley. These same constraints on land transfers would apply to a confederation as well.
Regardless of the technical form, the resulting Palestinian-Jordanian entity would be independent from Israel and would include no land or power sharing in Jerusalem, which would remain exclusively under Israel’s dominion and control. Jerusalem was never the capital of any sovereign Arab nation, and Jordan’s illegal occupation from 1948 to 1967 does not provide a legal basis for Palestinian claims over the city.
In contrast, Israel does have a lawful historical claim to Jerusalem, in which Jews have constituted the majority population for generations, since long before Israeli independence to the present day. Moreover, Jerusalem was the ancient capital of Jewish kingdoms that were the only sovereign nations ever to occupy the land. Consequently, there can be no justification for dividing the city. Arabs residing in Jerusalem would remain subject to Israeli civil and criminal law, and Israel would continue to protect and facilitate access to all religious sites and shrines as she always has done.
Israel could enforce a similar arrangement between Gaza and Egypt, after which Israel would sever any remaining connection to Gaza. Thus, Egypt would be solely responsible for servicing Gaza’s infrastructure, utility, and humanitarian needs, leaving Israel to concentrate on consolidating and enhancing her security presence along her southern border.
These concepts are not new or unique, but rather were the subject of analysis and debate in the 1990s by the late Daniel J. Elazar, founder of the Jerusalem Center for Public Affairs, and others. Proposals involving these and similar models were put forth as alternatives to a free-standing Palestinian state.
A federal model was considered by many to be a more workable paradigm than independent Palestinian statehood for protecting Israeli security, particularly by those who recognized that the Oslo process tended to sacrifice Israeli rights and security concerns. Proponents of some kind of Arab federal union believed that the costs of administering a hostile population would continue to grow, but that an independent state of Palestine would threaten Israel’s security and pose an existential challenge to her long-term survival.
These ideas are regaining currency today in part because the political unrest now rocking the Arab world emphasizes the risk that an independent Palestinian state would be subject to the same destabilizing influences. It is likely that such a state would quickly become a terrorist haven and a hostile military threat, particularly if it were to be created from lands that currently provide Israel with strategic security buffers.
Not everyone believes that the creation of such entities will resolve the Arab-Israeli conflict.
In fact, there is growing support in some segments of Israeli society for formal annexation of Judea and Samaria, in whole or in part, or for de facto annexation through the extension of Israeli civil law into these territories.
Although there may be disagreement regarding the most appropriate strategy, there is increasing consensus among Israelis that they must create their own solutions based on their own needs and concerns, instead of waiting passively while a two-state plan is foisted upon them by outside powers who have no regard for Israeli sovereignty.
There is increasing consensus among Israelis that they must create their own solutions based on their own needs and concerns.
Despite international pressure for the creation of a Palestinian state devoid of Jews, Israel must be guided by her own priorities, and must not lose sight of the rights of Jews as indigenous people in their homeland, including those rights recognized at San Remo and reinforced by the Mandate.
A Palestinian state created by dispossessing Jews from their ancestral lands would be in violation of international law and would represent a repudiation of history.
Unfortunately, American and European support for a Judenrein Arab state illustrates that international law is not applied equitably when the net effect would be the validation of historical Jewish rights or Israeli national integrity.
Therefore, Israel must resist all calls for her to sacrifice her security needs and Jewish character, and should work instead to expose the double standard underlying the international community’s unjust and unreasonable demands.