International Law is on Israel's Side - Why Doesn't it Use it?

International legal expert outlines Israel's clear legal right to Judea-Samaria, wonders why Israeli leaders won't say it out loud.

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Shimon Cohen, Editor, 'Sovereignty Journal',

What to do with Judea and Samaria?
What to do with Judea and Samaria?
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Prof. Eliav Shochetman, an expert in international law, states: according to documents of international law accepted by the nations, the rights over Judea and Samaria belong exclusively to the Jewish People and to its national home. So why is it that everyone is convinced that international law is not on our side and why doesn’t Israel use these arguments?

These days, when Leftist organizations are warning about the dangers presented by the court in the Hague and international law, Prof. Eliav Shochetman, a world-renowned expert in international law, listens to the Israeli reaction and cannot understand why Israel keeps repeating security justifications and totally ignores the best card in her hand – Judea and Samaria are areas that belong to it according to any reading of international law, in addition to the historical justification.

It turns out that what the radical Left has managed to embed within the Israeli public’s consciousness during three and a half decades simply lacks any factual basis. And while the average Israeli might define our position in Judea and Samaria by the familiar cliché – occupation-  it seems that the international documents state the total opposite: it is not occupation, but Israel standing up for the right of the Jewish People as it was determined by the nations, and yes, even if we have not understood it until now, it relates to Judea and Samaria also, and not just to Tel Aviv and its surroundings.

In order to understand the background and the sequence of events, Prof. Shochetman has set out a short but essential historical survey for every Israeli. “The right of the People of Israel to the Land of Israel was recognized by the League of Nations in 1921 with the end of the First World War. This international organization determined the partition of states that was necessitated as a result of the changes in the Ottoman Empire and in Europe. Within the framework of this assemblage it recognized the right of the People of Israel to the Land of Israel”.

This recognition was achieved with the international adoption of the Balfour Declaration, which, until then, had only been accepted by the British government and from this moment on, became accepted by all of the nations. “This decision was unanimously taken in San Remo by all of the 52 countries that were members of this organization”.

“After the People of Israel had been in exile for so many years, its right was recognized to return to its Land. The practical translation of this recognition of the right of the Jewish People to its land was expressed in the text of the British Mandate for the Land of Israel, within which framework, Britain was named to be the executor of the plan to establish a national home for the People of Israel”, Shochetman explains.

The text of the Mandate prohibits Britain from transferring any territory of the Land of Israel to a foreign sovereignty

The way to implement this international decision was to add to it several clauses, which also dealt with increasing Jewish immigration to the Land of Israel, the Jewish People being a small minority in the Land, faced with an absolute Arab majority. “In addition to this, in order to assure that the government of Britain would indeed carry out this plan, a specific clause was defined in the text of the Mandate in which it was stated that the government of Britain was forbidden from transferring any of the territory of the Land of Israel to a foreign sovereignty.

This decision did not differentiate between the western part of the Land of Israel and the eastern part. Actually, every necessary step was taken in the framework of the text of the Mandate to assure the establishment of a national home for the Jewish People in the Land of Israel”.

“Within a short time, the government of Britain that had led the Balfour Declaration, the government under the leadership of Lloyd George, whose foreign minister was Lord Balfour, fell, and was replaced by another government, which was hostile to the Zionist idea and within a short time it led to an interpretation that allowed territory of the Land of Israel east of the Jordan River to be removed from the area in which the British mission was to establish a Jewish homeland and this territory was transferred to the Royal Hashemite family”. Prof. Shochetman does not wish to enter into pedantic political arguments about Britain’s authority (whether it had such authority or not), to act in this manner since ultimately the present, concrete reality until today is that on the eastern side of the Jordan River, the government of Jordan exists and this is not the time to deal with questions of “what if”.

The UN Charter enshrines and reinforces the rights set forth and approved by the League of Nations

After the British government’s about-face, only the western part of the Land of Israel remained, from the river to the sea, in the area that was intended to establish the national home for the Jewish People. Prof. Shochetman clarifies: “Clearly, there is no basis for any other sovereignty besides that of the Jewish People on territory within the western Land of Israel. This is how it is, according to international law. Since then until today nothing has changed regarding international law, rather the opposite. This view has even been reinforced in international law after the Second World War. The League of Nations ended its role then and in its place the UN was established and in the UN Charter there is a special clause, no. 80, in which it is said that all of the rights that were recognized in international law by the League of Nations still exist and are still binding. This clause was stated so that it would be clear that there was no validity to the idea that since a new organization had been created, the rights that were recognized by the previous organization are canceled”.

Shochetman adds a comment that testifies to the historical uniqueness of clause 80, which, in accepted diplomatic jargon, was call the “Palestinian clause”, since its entire purpose is to assure the rights of the Jewish People, despite the fact that the name of the Land of Israel is not mentioned.

This international paragraph received more reinforcement a few decades ago in the shadow of the African conflict, which, seemingly, does not relate to the Jewish People. “In southwest Africa, in the country that today is called Namibia, there were arguments about the rights that had been recognized by the League of Nations. In the decision of the court in The Hague, it was said that all of the rights that had been recognized by the League of Nations are still binding and still exist. This is correct regarding Namibia and of course, it is also correct regarding the rights of the Jews in the Land of Israel, and this thing takes on even more validity from the international court in The Hague”.

Prof. Shochetman summarizes these things with a clear and resolute statement: “there is no document in international law that grants rights of sovereignty to anybody other than to the Jewish People. This is the legal position”.

If this is so, it is really not clear why the State of Israel does not officially make use of this argument in international arenas.

“It is just as unclear to me as it is to you”.

“To the best of my understanding, there is no answer to this argument”

Shochetman adds that there is no answer to this legal argument that he presents except, at the most, a legal claim that touches on appropriate treatment of the Arabs located in Judea and Samaria. “This is indeed a practical problem, but not a legal one. Legally, to the best of my understanding, there is no answer to this argument”.

These words are said not only by Shochetman, but also by Israeli jurists, who do not have access to the public stage in order to say them, but also by international jurists in the world. Prof. Shochetman mentions a few examples – Prof. Julius Stone, Prof. Shnabel and others.

Shochetman proves the claim from another direction. According to him the legal claim that he presents here was at the basis of the view that guided the government of the United States after the Six Day War when resolution 242 was passed in the UN, which talked about Israeli withdrawal from territories and not from the territories. “Why, if Israel had been considered an occupier, they would have called on her to withdraw from all of the territories and would have used the term ‘the territories’. The reasoning here is that since it is not occupied territories at issue, but territories that Israel has a legal claim of sovereignty over, she need not withdraw from all of the territories but only from territories according to negotiations that would occur between the sides. From this as well, it seems that the world sees Israel’s position not as an occupier, but a state with rights over the territories”.

Despite all of this, the government of Israel mystifyingly withholds this winning argument and ignores it. Prof. Shochetman has no solution to this diplomatic-political-legal mystery. “These are things that in the past would have been acceptable to Israeli governments, but for many years, unfortunately, it refrains from using this argument, which works only in its favor. I do not understand, I really do not understand why they do not use this argument, but only the security argument”.

This article was originally published in Sovereignty Journal by Women in Green. It has been reproduced here with permission from WiG.