The status of Judea/Samaria: Examination of Israel's lawful rights
The status of Judea/Samaria: Examination of Israel's lawful rights

The winning card lies in Israel's legal - not its historical and religious - claims, but can the legal status of Jerusalem be determined?

With a new coalition in formation,Trump's "Deal of the Century" hovering in the air, and the Arab world continuing to vent its fury at the US for the Embassy's move to Jerusalem and daring to try to make a deal, Arutz Sheva talked to Amb. (ret.) Ran Ichay, who initiated the First International Legal Conference on Jerusalem last year, to examine the legal aspects of Israeli rights more closely. 

Ichay served at a crucial period as Israeli Ambassador to Kazakhstan, then moved to the Foreign Affairs Ministry and was, until his recent retirement, Director General of the Ministry for Jerusalem and Heritage under Minister Zev Elkin. He lives in Gush Etzion, serves in the Border Police, and is a graduate of the Netanya Bnai Akiva Yeshiva H.S. and Bar Ilan University.

Ran Ichay, Director General for The Ministry of Jerusalem and Heritage
Ran Ichay, Director General for The Ministry of Jerusalem and HeritageILTV

Why is it important to examine the legal status of Jerusalem?

Amb. Ichay: "We are used to the Jewish people justly claiming powerful religious, emotional and historical rights to Jerusalem –  while archaeological finds, the Bible and Roman writings make that truth self-evident – but we are just as used to the Arabs (and their willing UN helpers in UNESCO and other organizations) totally denying Jewish history, ignoring- if not destroying - archaeological finds and claiming that the city and the Temple Mount are holy only to Islam.

"The legal claim to Jerusalem, in contrast, is based on facts, but years of listening to unsubstantiated and downright false statements purporting to be truth have made most people unaware of the legal truths.

"Also, the international talk is predominantly legal. We seem weak because we talk history and religion, which the world sees as debatable in the first case and contested in the second. 

"Let's face it, the whole world sees us as criminals, so that the very fact of starting a debate is a healthy development.  The elite echelons are still against us but the conference brought about a change in that the ring is not empty anymore, not totally one-sided anymore. There is still a dispute, but there are two sides to it."

Amb. Ichay chaired the conference, titled Israel's Rights to Jerusalem, Judea and Samaria, and moderated by Dr. Tal Becker and Dr. Roy Schondorf of the Foreign Affairs and Justice Ministry. The featured presenters and the sponsors were an impressive array of world famous academics and/or legal experts on the topic.

Scholars of international renown who participated were Israel Prize winner Professor Ruth Lapidoth of Hebrew University, Professor David Ruziel, Legion d'Honneur, of the Sorbonne, Dr. Jacques Gauthier, Legion D"Honneur, legal expert on the status of Jerusalem, Amb. Dr. Alan Baker, former legal advisor to the Ministry of Foreign Affairs, Professor Eugene Kantorovich of the Kohelet Forum and Northwestern University. 

The three sessions set for the conference precluded having additional presenters, but, says Ichay, there was no shortage of legal experts who wanted to attend and expressed the hope that there would be more conferences in the future.

Who are we trying to convince?
"We have to convince ourselves first, in this order: Start with Israelis, then pro-Israel Jews and Gentiles, and last of all, anti-Zionist Jews and the rest of the world 

"To our hard line opponents, I say: I won't try to convince you, I am here to explain. If you don't accept the facts, what's the difference? It is still the truth.

"We have ignored the legal front for years and have reached the point where we ourselves have doubts about its validity. 

"The Jewish general public understands the historic, security, moral and even the religious rights we have, but we make the mistake of assuming that these should influence the world to recognize our legal rights even though we believe that we are the underdog legally. And that is not true, we are not the underdog. The reality is quite the opposite."

Is the public interested? And is the government?

"Minister Elkin feared the conference would not draw interest, but I convinced him to let me give it a try.  At one of our weekly meetings, then Senior Deputy of the Attorney General's office (and current A-G), Avichai Mandeblitt, an expert on land issues, told me to be careful, but I did what I felt was right.   

"To some, it seemed a bit old school to have scholars in a conference intended for the public. But what happened? We advertised a hall with 200 places and 400 people registered within a day. We had to close registration, still people sat on the steps, on folding chairs - and there were a good many people left outside.

"The diplomatic community and the legal community – they naturally go together – attended. Minister Elkin and Dep. Minister Hotovely did as well.

"And in the end, the government, for the first time, published an official work on the subject. The report of the conference was a joint effort of the Ministry of Foreign Affairs, Ministry of Justice and Ministry of Jerusalem.  (All 500 copies were snatched up, another printing is planned)

Was it hard to get speakers to agree to come?

"Although we decided on five speakers, there were many more we could have chosen. The only problem we had was one of ill health on the part of Professor Stephen Schwebel, former Judge of the International Court of Justice (1981–2000, President of the International Court of Justice (1997–2000),  and then Vice President of the International Court of Justice (1994–1997)[7] and Judge of the International Court of Justice (1981–2000). He was hit with a lot of criticism in the past for his forthrightness on Israel and Jerusalem.  Because of his age, we were set to interview him in Vermont and show it on a screen. Everything was ready, even the journalist to accompany us, but Judge Schwebel became ill and we cancelled our plans to fly there."

 (For excerpts from Professor Schwebel's writings, see the appendix to this article.)

Can you summarize some of the main points said at the conference that shed light on the legal situation of Israel and Jerusalem, Judea and Samaria in particular? 

The conference emphasized the legal history of the land. Speakers first dealt with a. the process of the allocation of title to the land meant for a Jewish homeland and then went on to discuss b. developments after the establishment of the Jewish state:

a. Allocation and title:

The decisions on granting a homeland for the Jews after WWI were authorized legally by those who had the legal right to do so. They clearly stated which map they used to delineate that homeland and why it was used and who became the titleholders of that land. This, in brief, is how it happened:

1, After WWI, the victors, who were Great Britain, France, Italy and Japan (The US did not enter a state of war with the Ottomans and Russia made a separate agreement.) became titleholders to the land that had belonged to the Ottomans since 1517 and had been recognized by the world as theirs.
2. The victors' representatives used the map taken from the 1915 edition of the Atlas of the Historical Geography of the Holy Land, designed and edited by George Adam Smith in 1894, in which the boundaries of the Kingdom of Israel are clearly defined and include both sides of the Jordan River. This is the area they decided to grant the Jewish people. We have the minutes of those meetings. We  have photos of the group.

Adam Smith Map appended to the Mandate
Adam Smith Map appended to the MandateINN: RI

3. Great Britain received the mandate over the Land of Israel until the Jewish homeland could be established (when more Jews immigrated to the region), ratifying the declarative 1917 Balfour Declaration and making it binding. The mandate Britain received from the nations at the 1920 San Remo Conference of the League of Nations was that the land was to be held in trust for the Jewish people on behalf of the nations. It was dubbed "the Magna Carta of the Jewish People". Turkey signed its agreement to the mandate at the Treaty of Lausanne in 1923.
4. The UN inherited this trust and extended its validity.
5. The British announced that the trust would end on May 14, 1948, making the Jews of Israel the titleholders.

That is the story in a nutshell, omitting many additional details, but it is most important to realize the idea behind it as seen in the minutes of the San Remo Conference:

The plan in dividing up the defunct and defeated Ottoman Empire was to give the Jews the area on the map that had been the historic kingdom of Israel and the Arabs all the rest of the Ottoman Empire. Just as the Jews could not exercise national rights in the Arab lands in which they lived for millennia, but had to go to the national home designated for them to do that, so the Arabs (no one said Palestinian then for any Arabs – in fact, at the 1919 Faisal-Weizmann talks, Weizmann signed for Palestine -!- and Faisal for the Arab state) had to be in Arab-titled lands to do that. 

b. Developments:

1. The British hacked off much of the land they had held in trust for the Jewish Homeland to reward the Hashemites for helping them in WWII. The Jews remained the legal titleholders of that land.  Jordan took possession of Judea and Samaria in an aggressive action, but was not the titleholder of that land and only two states afforded it recognition. In 1988 Jordan relinquished rights to Judea and Samaria.

2. The UN General Assembly passed Resolution 181 the Partition Plan, hacking off even more. The resolution was not binding because the General Assembly  only has the power to give recommendations, and its decisions are not enforceable. 

3.  The experts at the conference stressed the difference between UN decisions that have the status of recommendations and those that are enforceable decisions. General Assembly (GA) resolutions are recommendations, while the Security Council (SC) has the choice of basing a decision on Chapter 6 of its charter, which means it is a recommendation, or on Chapter 7 which means it is enforceable. The proof of the status of GA Resolution 181 is that the Jews accepted it, mainly so as to have a state for Holocaust survivors to come to. The Arabs didn't and attacked, 

As Amb. Alan Baker said: 'The Arabs declared war not on the fledgling state of Israel but on a UN General Assembly resolution.'  This aggression made 181 null and void, no matter how many times the Palestinian Authority chairman says it is not.

2. The GA Resolution called Jerusalem corpus separatum, but, as Professor David Ruzie said: "That is a breach of the fundamental principle of the UN charter, the right to self determination. Since there has been a Jewish majority in Jerusalem for at least 100 years, it is Jewish.

3. The experts also discussed the legal status of land gained as a result of aggression as opposed to wars of defense, the rights of a victor in a war of defense and in a defensive war (South Korea's borders, for example, are farther north than originally designated because of the defensive war it fought with North Korea)  Although the Arabs, realizing this, tried to convince the world that the Six Day War was due to Israeli aggression, that vote did not pass and Israel has the right to the land it conquered as a result. 
4. UN Security Council (SC) Resolution 242 called to "return territories" now under Israel's aegis due to that war. The law includes the fact that it is based on Chapter 6 of the UN Charter meaning it contains only recommendations, although passed unanimously in the SC.  It carefully did not say "all the territories," and those who wrote it are on record saying that this was done on purpose – after all, it also says that Israel has a right to defensible borders, which contradicts giving up all the territory. The Arabs saw to translating the resolution into French and added the word 'all.' 

When Israel relinquished the Sinai for a peace agreement with Egypt, it gave up 90% of the territory gained in the war, and therefore actually did as recommended in the official wording of Resolution 242.                                                                                                                                           .

Which, in your mind, are the most misleading misconceptions and relating to the conflict?

"The world talks about our record on human rights. Human rights? We introduced the concept to the world. Before the Bible, nations were leaving the disabled out to die, let alone sacrificing their children to idols.

I ask myself why the hypocrisy – look at the Falklands and Gibraltar, which no one talks about, for starters. Israel has a much stronger claim than they do.

Why ignore the fact that six European monarchs claim to be kings of Jerusalem because of the Crusade conquering of the city. When President Chirac came to the Old City, he called it French soil. The king of Spain calls himself rei de Jerusalem. They don't see it as Arab territory.

Focus has been turned from what is important to the use of the misplaced term "occupation." The Geneva Conference, which is not applicable here at all, is constantly invoked, while legally binding San Remo is ignored.

There is purposeful mistranslation of UN Resolutions and misrepresentation of which ones are binding."

How can we get this information to help Israel?

"Let's be realistic:  Under no circumstances even if Jews become more numerous than Arabs in the world, will it make a difference in the ICC and Hague – they are political institutions. Nor will it make a difference to the Arabs.

"The Arabs, aided by the West, will always be antisemites and anti Zionist They fight us on what they consider moral, legal and historical grounds, on security and religion. The truth is no object. They use oil as a weapon and threats as blackmail. 

"They totally deny the history, blacken our names morally with falsities and "won" the legal battle in the public's eye a long time ago.

"Australia reviewed the legal materials for the first time and had to realize that it was not "occupied" territory but "disputed" territory, but Arab pressure made them backtrack.

"We tried to change the talk in the Jerusalem Ministry office: Historically, by running archaeological exhibits, Legally, through this conference. 

"And as I said, the goal is to teach our supporters the truth.

"If more pro-Israel people know the legal facts, their love for the country will be bolstered by a matter-of-fact rationale."

Do we still have those sovereign rights, are we still the title holders? Didn't we give them up in some areas?

"Dr. Jacques Gauthier said: 'There is the test of reality.  If I had to defend Israel's rights in Judea and Samaria, I could. But Jerusalem is even stronger because until 1967 Jordan was thought by many to have the legal rights and did not implement them.'

"From 1967 on, Israel could put have put its rights into practice but did so only in Jerusalem, yet it did not abrogate its rights even in the Oslo Agreement.

"From 1967 up until 1993 (Oslo) we had the Civilian Administration in charge, sovereign by law, and it took full responsibility for the area and what was in it, so we did implement our rights to a certain degree. We just didn't formalize them.

"Did PA autonomy mean waiver of rights? No, it is open to negotiation. In Area A, totally under PA control, we go in when we need to. We gave them a chance for us to be uninvolved and they failed. 

"We didn't give up rule (meshilut),  Autonomy is self-government not sovereignty.

"Gaza is different because we left of our own accord.. There we have a problem to regain rights. 

Can you tell us the most salient facts  in the list of facts you designed at the start of the report on the conference?

"Briefly, they can be summed up as the following:

-San Remo was never reversed
-181 is not a reversal;. It was voted for by the inappropriate body and never accepted 
-242 is not valid, only recommended (based on chapter 6 not 7) and not accepted
-The British said what they meant and those who wrote it down corroborated that interpretation
- Self defense acquisitions are legal
-We gave up more than 90% of the territory with withdrawal from Sinai. 

Can you choose a few sentences from those said at the conference?

"Professor Lapidot: When Britain left the area at the end of the Mandate, it left a vacuum of authority which could be filled only by a state that acted lawfully. Israel, in defending itself, acted lawfully and therefore could fill the vacuum of sovereignty.

"Dr. Gauthier: Ten years of research sans opinions and sentiments, 3500 footnotes, give  me the self-confidence to tell you to just look at the facts and if you want to be fair, realize that Jewish Israelis are here as a right. ..I read the minutes of San Remo and saw the photos. The nations wanted the border to be derived from the Adam Smith map. 
"Professor Kontrovich: There really is no case like this, in which the ongoing de facto capital of a recognized country is not recognized as its capital. 181 is some kind of special disability the Jewish state has to contend with in order to determine its own capital.

"And I, as organizer of the conference, would like to posit that President Trump's decision was on firm legal standing. We have to inculcate these facts and use them to stand strong on our legal rights to our land and its holiest city, Jerusalem."