The Presidents of the European Union and South Africa made the common claim: Israel occupies Palestinian territory. They sought to stop the ‘wrongful’ labelling, ‘Product of Israel’ and substitute it with, ‘Made in a settlement in the ‘Occupied Palestinian Territories’ (OPT)
Martin Schulz, ex President of the EU, warned Israel that Europe will have its way.
"There is enormous pressure, also in the European Parliament, to label products because a lot of my colleagues consider the settlements illegal. They think the rule should be that products coming from regions with an illegal status couldn’t have normal access to the European market."
Advocate for Israel
My Lord, the court will hear evidence that the real estate given the name, ‘Occupied Palestinian Territory’ (OPT) is not real. There are two hard reasons for that:
(1) War records turn up nothing to support the name.
(2) Law and statutes turn up nothing to support it.
Evidence will be led that OPT reflects a political policy or aspiration. There really is no Palestinian territory to be occupied.
Evidence will be led that the move to debar Israeli products made in the ‘OPT’ has everything to do with lobby groups and politics but nothing to do with informing and protecting the customer. To the contrary, the label would trick unwary customers. It would also cast suspicion on any product labelled thus, and be used as a backdoor trade boycott of Israel.
To begin, certain facts of history are too real to dispute. In the 1948 War Egypt took the Gaza Strip, and Jordan took Judea and Samaria, the so-named “West Bank.” Egypt did not claim sovereignty in Gaza, but in 1950 Jordan annexed Judea and Samaria. The annexation was not recognized by the international community, other than Pakistan and the UK. Even the Arab countries objected to what Jordan did. They threatened to kick it out of the Arab League.
After the Six Day War in June 1967 the territories,which were earmarked for the national home of the Jewish people by the (binding) Mandate Charter of San Remo of 1920, finally came under Israeli control. So much for the foundation facts.
With My Lord’s permission I call my first witness. Professor Judge Stephen M Schwebel was elected to the ICC in January 1981. He was subsequently re-elected twice, serving as president of the court from 1997–2000:
"A state [Israel] acting in lawful exercise of its right of self-defense may seize and occupy foreign territory as long as such seizure and occupation are necessary to its self-defence. Where the prior holder of territory had seized that territory unlawfully [Jordan], the state which subsequently takes that territory in the lawful exercise of self-defence has, against that prior holder, a better title. As between Israel, acting defensively in 1948 and 1967, on the one hand, and her Arab neighbours, acting aggressively, in 1948 and 1967, on the other, Israel has the better title in the territory… including the whole of Jerusalem, than do Jordan and Egypt.
"You hear that, Mr Presidents. Israel has more right than Jordan to be occupying the 'West Bank' and more right than Egypt to be occupying Gaza. Or had more right: today not one Jew blights the landscape of Gaza."
No “Palestinian” territory up to now. But don’t lose hope. It could be ahead of us, though the signs are not good. For 19 long years Jordan ruled the 'West Bank'. Between 1948 and 1967 it had the opportunity to create Palestine on the 'West Bank'. It did not. A crying shame, because then you could aver, with some credibility, that Israel occupies Palestinian territory. If only Jordan had not made 'West Bank' dwellers become citizens of Jordan.
So Mr Presidents, here you are, required to explain when and how the territories became Palestinian and occupied by Israel.
But wait. That would be putting the cart before the horse. You’d best tell the court at what point the Palestinians emerged as a people. After all, there must be a people by that name to claim their territory. I want you to refer to a single international instrument that refers to the Palestinian people.
How about starting in 1922 with the League of Nations Mandate for Palestine? It gave Britain, the mandatory power, the following obligation:
“The Administration of Palestine, while ensuring that the rights and position of other sections of the population are not prejudiced, shall facilitate Jewish immigration under suitable conditions and shall encourage, in co-operation with the Jewish agency…close settlement by Jews, on the land…”
No Palestinians, only “other sections of the population.” Let’s move on. Shall we try November 1947 and UN General Assembly Resolution No. 181. It provided for “Independent Arab and Jewish States and the Special International Regime for the City of Jerusalem…”
Note: an Arab not a Palestinian state. But try and try again.
The year 1967 would be the next time to look. By now Israel has taken Judea and Samaria off Jordan’s hands, and become the occupying power. Hopefully now we shall find the Palestinian people.
The place to look for them would be in UN Security Council Resolution 242 which contained proposals of the UN Security Council for resolving the “Arab-Israeli conflict.”
Note the word ‘Arab’. Nowhere in the UN resolution can we find a party to the conflict called the Palestinians. The resolution was adopted to end the state of belligerency then existing between the “States concerned”: Israel, Egypt, Jordan, Syria and Lebanon. No Palestinian people before 1967!
My Lord, at this point I can do no better than call on a Palestinian leader. Zahir Muhsein was head of the PLO Military Department and a member of the PLO Executive Committee:
“The Palestinian people do not exist. The creation of a Palestinian state is only a means for continuing our struggle against the State of Israel for our Arab unity. In reality, today, there is no difference between Jordanians, Palestinians, Syrians and Lebanese….The moment we reclaim our right to …Palestine, we will not wait …to unite Palestine and Jordan.”
Of course they won’t wait. Under Jordanian control for 19 years, Arab leaders in the territories were more than happy to be under Jordanian rule.
But let’s go past 1967 and see if we cannot give the Palestinian Arabs a right to have a state in the occupied territory. You shall not, Mr Presidents, be felled by the facts of history, however indisputable, or the opinion of one jurist, however exalted.
We call on Professor Talia Einhorn, from the T.M.C. Asser Institute for international law in The Hague.
“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 November 29, 1947…it is merely a recommendation and nothing more…. The fact that the Arab states did not accept the Partition Plan voids the recommendation of any legal basis.”
Thank you, Professor Einhorn. Still no sign of Palestinian territories.
To take us forward I now call on Alan Baker, the legal counsel for Israel in the drafting of the Oslo Accords. Perhaps the agreements still in force may give the Palestinians a right to the occupied territories.
Mr. Baker, could you start with the 1947 Partition Plan. Explain to the court why the Palestinians have no land to call their own.
“Had the Arabs accepted the Plan of Partition, passed by the UN in 1947, they too would have had a state, and that would have been the end to Jewish rights of settlement in Judea and Samaria (the West Bank). But the Arabs did not accept the Plan. Hence those Jewish rights to settle the “West Bank” did not end. Jewish settlements are not illegal.
"In 1993 Rabin and Arafat signed the declaration of principles on the White House lawn. This aimed to: “Establish a Palestinian Interim Self-Government Authority, the elected Council for the Palestinian people…for a transitional period not exceeding five years, leading to a permanent settlement. Observe: The Declaration made no mention of a Palestinian state as the goal; nor did it call for a cessation of Jewish settlement activity.
"Then, in 1995, Israel and the Palestinian Authority (PA) entered into an interim agreement. Again there was no mention of a Palestinian state as the final goal. It provided only for an unspecified “outcome. “Neither side shall initiate or take any step that will change the status of the West Bank and the Gaza Strip pending the outcome of …negotiations. Neither party shall be deemed… to have renounced or waived any of its existing rights, claims or positions.”
Thank you, Mr. Baker. So when Israel signed the 1995 interim agreement, in force to this day, it did not renounce any of its rights or claims to the occupied territories.
My Lord, as much as the Presidents of the European Union and South Africa want Gaza and the 'West Bank' to belong to the Palestinians, they cannot. There simply is no Palestinian territory for Israel to occupy. Territories by that name are no more than a political objective, an aspiration, a denial of events and the law.
Steve Apfel is an economist and costing specialist, but most of all a prolific author of fiction and non-fiction. His blog, ‘Balaam’s curse’ https://enemiesofzion.wordpress.com/ is followed in Europe, America, Canada, Asia, S. Africa, Israel, Australia and New Zealand.