Daily Israel Report

Hague Professor: This Is No "Occupation"

Prof. Talia Einhorn writes that the Israeli presence in Yesha does not constitute "occupation," and moreover, that the U.N. Partition Resolution of 1947 is a "recommendation" and not obligatory.
First Publish: 5/29/2003, 7:15 PM

Prof. Talia Einhorn, of the T.M.C. Asser Institute, an institute for international law in The Hague, writes that the Israeli presence in Yesha does not constitute "occupation," and moreover, that the U.N. Partition Resolution of 1947 that mentions a "new Arab state" is of the "recommendation" type and not the "mandatory" type.

In light of Prime Minister Sharon's recent use of the word "occupation" in reference to Israel's presence in Yesha, and despite his subsequent retraction, Arutz-7's Ruti Avraham quotes Prof. Einhorn's explanation as to why Israel is not an "occupying force" in Yesha:
"Up until 1948, Judea, Samaria and Gaza were a part of the British Mandate. In the 1948 War of Independence, Egypt illegally grabbed the Gaza Strip, and Jordan took Judea and Samaria, the 'West Bank.' Egypt did not claim sovereignty in Gaza, but Jordan deigned, in 1950, to annex Judea and Samaria. This annexation was not recognized by international law. The Arab nations objected to it, and only Britain and Pakistan recognized it - and Britain did not recognize the annexation of eastern Jerusalem. In 1967, after the Six Day War, these territories - which were originally meant for the Jewish Nation's National Home according to the Mandate Charter - returned to Israeli control." Einhorn adds that in 1988, King Hussein of Jordan rescinded its legal and administrative ties to Judea and Samaria.

"According to international law," Einhorn writes, "Israel has full right to try to populate the entire Land of Israel with dense Jewish settlement, and thus actualize the principles set by the League of Nations in the original Mandate Charter of San Remo in 1920. At that time, the mandate to the Land of Israel was granted to the British, and the introduction to the mandate charter states clearly that it is based on the international recognition of the historic ties between the Jewish People and the Land of Israel. Clause II of that mandate charges Britain with 'ensuring the existence of political, administrative, and economic conditions that will guarantee the establishment of the Jewish national home in the Land of Israel.'"

"Even the White Paper of 1922," she continues, "which restricted Jewish immigration to the land, emphasized the Jewish Nation's rights to the national home in the Land of Israel - while at the same time tearing away almost 80% of the mandate's area on the eastern side of the Jordan and giving it to Emir Abdullah."

Prof. Einhorn says that there is nothing in international law that requires a Palestinian state between the Jordan River and the Mediterranean - not even the UN Partition Resolution of Nov. 29, 1947. That resolution states that "independent Arab and Jewish States and the Special International Regime for the City of Jerusalem" shall come into existence in Palestine. However, Prof. Einhorn notes the widely-overlooked fact that the introduction to the resolution states specifically that it is merely a "recommendation" and nothing more: "[The General Assembly] recommends to the United Kingdom, as the mandatory Power for Palestine, and to all other Members of the United Nations the adoption and implementation, with regard to the future Government of Palestine, of the Plan of Partition with Economic Union set out below."

The fact that the Arab states did not accept the Partition Plan, explains Prof. Einhorn, voids the recommendation of any legal basis.

She further writes that Resolutions 242 and 338, which call for negotiations and a "withdrawal from territories" (not "withdrawal from the territories") captured in 1967, are similarly "recommendations." These resolutions were drawn up under the UN Charter's Clause VI, which deals with non-mandatory recommendations - as opposed to Clause VII resolutions, "which are mandatory, and which deal with a threat to world peace, such as those taken earlier this year against Iraq."