Op-Ed: What Are We Negotiating?
It is unlikely that in 1967 the Eshkol government, acting on the advice of its top legal authority Meir Shamgar, could have foreseen the predicament we face today.
Recently, as many as 100,000 readers were delighted to receive their copy of the second issue of the new ‘Sovereignty’ political journal. This publication was started by Nadia Matar’s Women in Green movement and was made available in both Hebrew and English. The need for such a publication, and the important void which it has filled was long overdue.
For decades the right has left the war of ideas to the left and instead has focussed on changing facts on the ground. In light of the most recent push—led by US Sec. of State Kerry—to give up our heartland for the creation of another Arab state, the time has most definitely come to dispel the rhetoric that has plagued and infected the Israeli discourse for decades.
Even Bibi has apparently bought in to the left’s traditional arguments. Israel basically has two options, according to the now broadly accepted premise: Carry out a ‘two state solution’ in the creation of a ‘Palestinian’ state and in turn maintain Israel’s Jewish and Democratic character. Fail to do this and end up with a bi-national state in which either the Jewish or Democratic features will ultimately have to be sacrificed.
What Sovereignty has done, and is doing, is highlighting the fact that Israel need not be constrained to such a choose-one-or-the-other’ fate. It has thus far presented a number of different ideas that could be alternatives to the ‘two state solution’. Arguably the most right-wing alternative is Annexation of Judea & Samaria, and then coming up with solutions about how to maintain the desired characters of the state following that step. This idea denies that Israel must give citizenship to all 1-2 million Arab residents following annexation (something that is not outrageous by any means).
Does Israel really need an alternative? Does Israel need to formally annex the territories? I believe that after the nationalist camp has advertised the fact that alternatives do in fact exist, it will eventually need to band together around one single plan in order to succeed against those who would eagerly give up our land, our rights, and our sovereignty. There is that word again, ‘sovereignty’, and this is the idea—as is the name of the political journal—around which the right can and should be rallied.
The state of Israel, created in 1948, can trace its foundation back to a single and regularly overlooked document, the San Remo document of 1920. This document describes the outline of the ‘Land of Israel’, (or ‘Jewish National Home’) an important term when dealing with subsequent documents relating to Israel, the State of Israel, and Israeli law. The ‘Land of Israel’ was never changed in international law after San Remo, only facts on the ground changed, the most important of which was the creation of Trans-Jordan (Jordan), which cut off some 70% of the ‘Land of Israel’ (together with modern day Israel constituting the British Mandate for Palestine).
In 1948, following the War of Independence, Ben Gurion used an interesting law in order to formerly incorporate—not ‘annex’—territories held by the Israeli forces that fell outside of the 1947 partition plan lines. This included places such as Beer Sheva, where the world today doesn’t dare question Israel’s sovereignty.
Unfortunately and erroneously, on June 27, 1967, Section 11B of the Law and Administration Ordinance was enacted. Disregarding the 1967 victory, and till today, the law states that:
“Any law applying to the whole of the State of Israel shall be deemed to apply to the whole of the area including both the area of the State of Israel and any part of Palestine which the Minister of Defence has defined by proclamation as being held by the Defence Army of Israel”
Since Judea and Samaria were part of the British Mandate for Palestine, they are also part of the Jewish National Home as defined at San Remo, and since the IDF had declared its hold over the area by proclamation, both in 1967 and until this day by way of action, the law of the State ought to have been applied to it - and could have been applied to it, but wasn't.
According to the late legal expert Howard Grief, Israel thus
“failed at the appropriate moment to utilize the leading precedent established in his [sic Meir Shamgar] own country when, during the War of Independence, additional areas of the Land of Israel were recovered by the IDF, that were thenceforth subject to the law of the State. The above facts and precedent were simply ignored or never even thought of”.
If the precedent law would have been followed, or if it were to be followed, then another Israeli law would make the act of annexation at this juncture unnecessary.
Israel’s Basic Law-Israel Lands reads:
The ownership of Israel lands, being the lands in Israel of the State, the Development Authority, or the KKL, shall not be transferred either by sale or in any other manner.
It is unlikely that in 1967 the Eshkol government, acting on the advice of its top legal authority Meir Shamgar, could have foreseen the predicament we face today. While it is undoubtedly important and overdue to express counters to the ‘Two-state solution’, Israel’s right must rally around a single idea if they wish to see that form of national suicide defeated. And that idea is sovereignty, the rights enshrined at San Remo and later supported by Israel’s own laws.
Could it be that based on this rendition it is actually illegal vis-à-vis Israeli law for anyone to try and transfer any parts of the Jewish National Home to any other entity? Have all governments since 1967 that have negotiated parts of the Jewish National Home been acting in contravention to Israeli law?
After all, what is actually being negotiated at the moment? Our sovereignty.
In the late 1970’s, former Indonesian FM Malik said in reference to demands on the Philippines for Mindanao sovereignty; ‘no sovereign state worthy of the title could agree to such a thing’. "
*(Note:I must credit the great work of the late Howard Grief, ZT"L for his excellent research on the legalities of Israel's borders).