1. The overriding principle of International Law
What is the overriding principle of international law in relation to Palestine? To answer this we observe that rights of nations that were obtained by virtue of a mandate of the League of Nations are still valid and enshrined in the Charter of the UN. That such is the case has been confirmed by the International Court of Justice and applied, for example, in South West Africa.
Specifically, the League of Nations mandate for Palestine includes the following:
"The Mandatory shall be responsible for placing the country under such political, administrative and economic conditions as will secure the establishment of the Jewish national home...The Mandatory shall be responsible for seeing that no Palestine territory shall be ceded or leased to, or in any other way placed under the control of the Government of any foreign Power...shall facilitate Jewish immigration...and shall encourage...close settlement by Jews on the lands, including State lands and waste lands not required for public purposes"
These Jewish national rights were later "postponed or withheld" in Transjordan (what is today called Jordan), which is also part of Palestine, the Palestine to which the original mandate referred. They were not postponed in all of the territory west of the Jordan River, i.e. in all of Western Palestine. The mandate imposes a special urgency and allows no delay in creating the Jewish state in all of Western Palestine. Thus Jewish settlement in all of Western Palestine is not only compatible with international law, but in fact international law enthusiatically encourages this settlement and explicitly disallows postponing the fulfillment of this duty. It also explicitly does not allow the transfer of this land to any foreign non-Jewish Government. This is confirmed by leading professors of international law such as Professor Eugene Rostow (see e.g. his articles in
"Think-Israel") and Professor Julius Stone (see e.g. "Israel and Palestine," by Julius Stone, Johns Hopkins University Press, 1981).
The result is that any government restricting or delaying the Jewish settlement of Western Palestine or, worse, contemplating the transfer of parts of this land to a foreign government or, worse yet, contemplating transferring Jews from rather than (as obliged) to this land, is seriously transgressing international law. This applies to a Jewish government as well. In such a case a remedy should be sought in national and international courts.
An appeal against a Jewish government that wants to transfer Jews away from their own land has reasonable chance of success even in an international or a British court. Indeed the Christian Zionists such as Winston Churchill, Lloyd George, Lord Balfour, and Orde Wingate were motivated by Jewish history in Palestine. The above overriding principle of international law did not arise out of thin air. It resides in the heart of Western Civilization. Even now the BBC produces a multitude of historical, scientific, religious and archaeological programs on Jews in Palestine. For example, in a recent program about Jesus the BBC narrator says: "Pontius Pilate [the Roman governor] did not like the Jews so he settled in Caesarea instead of Jerusalem which was the Jewish capital". The BBC thus admits that 2000 years ago Jerusalem was already the Jewish capital. The program only mentions Romans and Jews in Palestine and Palestinian Arabs are conspicuous in their absence. It is not daily politics but many examples like this that are the true measure of Western civilization's automatic acceptance that "Palestine" is the land of the Jews.
In fact this concept has been also accepted by Muslim leaders. For example the Feisal-Weizmann agreement in 1919, concluded at the peace conference in Paris, refers to the "Arab State" (singular) on the one hand and to its Jewish counterpart referred to it as "Palestine"! This forgotten agreement, which also bears the force of binding international legality, has to be read nowadays to be believed. It is surfeit with good intentions and mutual congratulations between Jews and Muslims. For example it includes statements such as: "All necessary measures shall be taken to encourage and stimulate immigration of Jews into Palestine on a large scale, and as quickly as possible to settle Jewish immigrants upon the land through closer settlement and intensive cultivation of the soil." One is bound to ask whether this is not precisely what Gush Katif settlements are doing, thereby abiding by international law. In contrast, the proposed evacuation of Jewish settlement by Sharon and Olmert are violations of this long standing agreement signed in an international setting by the Arab leadership. Thus, When Ben Gurion stated in the thirties that no Jewish government has the right to cede Jewish land in Palestine he in fact complied not only with formal international law but also with the recognition of long standing Christian and Muslim-Arab traditions and commitments.
2. Considerations of Expediency
I've explained above how Jewish leaders who call for the evacuation of Jews from parts of Western Palestine are transgressing international law in allowing the transfer of the land to the sovereignty of a foreign power. But it is harder still to accept their arguments of expediency. For example Sharon's statement that "those that delude themselves that in the current political circumstances prevailing in the world today, any country in the world, including the U.S., will support Jews living in all of Eretz Israel, is dreaming, mistaken and misleading" (translation from Yediot Achronot, 24.2.2004) sounds hypocritical, since if this was a consideration why then for many years now (but not before the Oslo process) has the government of Israel forbidden its official representatives to declare the above summarized principle of international law? It is hard to accept Sharon's statement that world opinion would not let us keep even the Western part of Eretz Israel even as he avoids reminding the world of what the applicable international law is regarding this area. After all, the international public can only know, and their opinion only be swayed by what Israeli representatives say on TV and open publications. By not doing so our government actively conceals from the world knowledge that could mitigate the "prevailing political circumstances" mentioned above.
To appreciate the enormity of what Sharon and Olmert are contemplating, we have to remember that ceding national rights that have been enshrined in international law of nearly 100 years will be a fateful irreversible act. In a normal democracy this would not be done at all, or after many internal discussions over many years. Sharon's method of immediately discussing his plans with foreign leaders, before even acceding to discussing in his own government, is undemocratic.
A current example of the ongoing failure of the Israeli government over many years is provided by the question of the security fence. The "Palestinians" and their friends have recently focused on this fence. They say it is illegal for the same reasons that the settlements are illegal; because parts of the fence are built on "Palestinian land". This could have been used by the government of Israel as a stage and opportunity to highlight already discussed law, thereby introducing it to the world stage while reaping the added benefit of justifying the fence since one is generally allowed to build a lifesaving device in one's own garden. Yet even here, in the face of the International Court of Justice, the government of Israel has refrained from invoking the international law that favors its position. The question is why?
Sharon and Olmert also argue that evacuation is desirable for democratic and demographic reasons. But this assumes that the principle of democracy (one man, one vote) requires territorial continuity. For 19 years mount Scopus was an Israeli territory encircled by "Jordanian territory. The UK spread not only across the water to Northern Ireland, or to Gibraltar, but to the Falkland Islands in the other end of the world. This argument is enough to refute the Sharon-Olmert thesis, but one could add to this that Arabs in Western Palestine do not serve in the IDF, and so have not in any case earned the right to vote in the Israeli national elections.
Mr. Sharon's willingness to evacuate Gaza or parts of Judea and Samaria ought to more aptly be compared to the UK's willingness to evacuate Cambridge and Oxford. Internal discussions lasting many years would be necessary before such a fundamental decision could be taken. In fact in most states it is considered treason to contribute to the transfer of the land of the state to a foreign power (surely to an enemy). But if the government of Israel conceals the fact that Israel has the right according to international law to sovereignty in all of Western Palestine, then neither its own citizens nor the citizens of the world at large, will ever know about the treason taking place. The transfer of Jews is made easier and more acceptable by keeping the facts concealed. The irony is that even in places in the world, where Jews have no special rights such as those accorded to us here by international law, the singling out of Jews for a transfer would be considered as racist, anti-Semitic and illegal. Imagine for example her majesty government decreeing that all the Jews (only) in Cambridge and Oxford will have to evacuate these towns and move to other parts of the country!
The U.K., for example, was even willing to send an entire Armada at enormous cost and sacrifice to protect a part of its national entity as far away and strategically marginal as the Falkland Islands. PM Sharon, meanwhile, is contemplating giving away national land at Israel's doorstep. Even Kefar Darom that fell in the War of Independence and resurrected by Israel is to be evacuated. Could one imagine a better reward and encouragement for terrorism? It is shocking to imagine the degree of demoralization and confusion, and the irreversible loss of morale and pioneering spirit this would cause.
An evacuation from Gaza is both a reward and incentive for terror. Only an Israeli presence in all of Western Palestine enables Israel to prevent weapons smuggling and foil the organization of murderous attacks against its citizens. Also, and most importantly, the proximity of Arab and Jewish settlement has a beneficial value in that it deters the use of WMD on the Jewish population. So the presence of Arab habitation next to a Jewish habitation is not an argument to remove the Jews. At a time of increased fear of WMD use, particularly from Iran, the logical approach would entail explaining to the Israeli public and to the world at large the greater-than-usual importance of densely settling Jews in the whole of Western Palestine and in YESHA in particular. An Arab settlement next to a Jewish one jstrengthens the deterrence against Arab use of WMD. Instead the government wants to do the opposite and concentrate Jews in a very limited area with a minimum amount of Arabs around so that the Jews will constitute a more attractive target. The evacuation of Gaza would be such a lamentable move. Some Muslims see such a "separation" and the creation of a purely Jewish territorial entity as a sign from God that he indeed wants them to exterminate the Jews since the Jews facilitate their own extermination. It is also clear that if the presence of Arab villages and towns is a reason to dismantle Jewish settlement than one can find many more places other than Gaza from which to remove Jews. The presence of Arab habitation has never been a reason to avoid Jewish settlement in the whole of history of Zionism. The Sharon-Olmert logic is not only antithetical to the spirit and the letter of international law, it also contradicts the spirit of the pioneering fathers and is counterproductive to the existence and development of the state of Israel.
What is the overriding principle of international law in relation to Palestine? To answer this we observe that rights of nations that were obtained by virtue of a mandate of the League of Nations are still valid and enshrined in the Charter of the UN. That such is the case has been confirmed by the International Court of Justice and applied, for example, in South West Africa.
Specifically, the League of Nations mandate for Palestine includes the following:
"The Mandatory shall be responsible for placing the country under such political, administrative and economic conditions as will secure the establishment of the Jewish national home...The Mandatory shall be responsible for seeing that no Palestine territory shall be ceded or leased to, or in any other way placed under the control of the Government of any foreign Power...shall facilitate Jewish immigration...and shall encourage...close settlement by Jews on the lands, including State lands and waste lands not required for public purposes"
These Jewish national rights were later "postponed or withheld" in Transjordan (what is today called Jordan), which is also part of Palestine, the Palestine to which the original mandate referred. They were not postponed in all of the territory west of the Jordan River, i.e. in all of Western Palestine. The mandate imposes a special urgency and allows no delay in creating the Jewish state in all of Western Palestine. Thus Jewish settlement in all of Western Palestine is not only compatible with international law, but in fact international law enthusiatically encourages this settlement and explicitly disallows postponing the fulfillment of this duty. It also explicitly does not allow the transfer of this land to any foreign non-Jewish Government. This is confirmed by leading professors of international law such as Professor Eugene Rostow (see e.g. his articles in
"Think-Israel") and Professor Julius Stone (see e.g. "Israel and Palestine," by Julius Stone, Johns Hopkins University Press, 1981).
The result is that any government restricting or delaying the Jewish settlement of Western Palestine or, worse, contemplating the transfer of parts of this land to a foreign government or, worse yet, contemplating transferring Jews from rather than (as obliged) to this land, is seriously transgressing international law. This applies to a Jewish government as well. In such a case a remedy should be sought in national and international courts.
An appeal against a Jewish government that wants to transfer Jews away from their own land has reasonable chance of success even in an international or a British court. Indeed the Christian Zionists such as Winston Churchill, Lloyd George, Lord Balfour, and Orde Wingate were motivated by Jewish history in Palestine. The above overriding principle of international law did not arise out of thin air. It resides in the heart of Western Civilization. Even now the BBC produces a multitude of historical, scientific, religious and archaeological programs on Jews in Palestine. For example, in a recent program about Jesus the BBC narrator says: "Pontius Pilate [the Roman governor] did not like the Jews so he settled in Caesarea instead of Jerusalem which was the Jewish capital". The BBC thus admits that 2000 years ago Jerusalem was already the Jewish capital. The program only mentions Romans and Jews in Palestine and Palestinian Arabs are conspicuous in their absence. It is not daily politics but many examples like this that are the true measure of Western civilization's automatic acceptance that "Palestine" is the land of the Jews.
In fact this concept has been also accepted by Muslim leaders. For example the Feisal-Weizmann agreement in 1919, concluded at the peace conference in Paris, refers to the "Arab State" (singular) on the one hand and to its Jewish counterpart referred to it as "Palestine"! This forgotten agreement, which also bears the force of binding international legality, has to be read nowadays to be believed. It is surfeit with good intentions and mutual congratulations between Jews and Muslims. For example it includes statements such as: "All necessary measures shall be taken to encourage and stimulate immigration of Jews into Palestine on a large scale, and as quickly as possible to settle Jewish immigrants upon the land through closer settlement and intensive cultivation of the soil." One is bound to ask whether this is not precisely what Gush Katif settlements are doing, thereby abiding by international law. In contrast, the proposed evacuation of Jewish settlement by Sharon and Olmert are violations of this long standing agreement signed in an international setting by the Arab leadership. Thus, When Ben Gurion stated in the thirties that no Jewish government has the right to cede Jewish land in Palestine he in fact complied not only with formal international law but also with the recognition of long standing Christian and Muslim-Arab traditions and commitments.
2. Considerations of Expediency
I've explained above how Jewish leaders who call for the evacuation of Jews from parts of Western Palestine are transgressing international law in allowing the transfer of the land to the sovereignty of a foreign power. But it is harder still to accept their arguments of expediency. For example Sharon's statement that "those that delude themselves that in the current political circumstances prevailing in the world today, any country in the world, including the U.S., will support Jews living in all of Eretz Israel, is dreaming, mistaken and misleading" (translation from Yediot Achronot, 24.2.2004) sounds hypocritical, since if this was a consideration why then for many years now (but not before the Oslo process) has the government of Israel forbidden its official representatives to declare the above summarized principle of international law? It is hard to accept Sharon's statement that world opinion would not let us keep even the Western part of Eretz Israel even as he avoids reminding the world of what the applicable international law is regarding this area. After all, the international public can only know, and their opinion only be swayed by what Israeli representatives say on TV and open publications. By not doing so our government actively conceals from the world knowledge that could mitigate the "prevailing political circumstances" mentioned above.
To appreciate the enormity of what Sharon and Olmert are contemplating, we have to remember that ceding national rights that have been enshrined in international law of nearly 100 years will be a fateful irreversible act. In a normal democracy this would not be done at all, or after many internal discussions over many years. Sharon's method of immediately discussing his plans with foreign leaders, before even acceding to discussing in his own government, is undemocratic.
A current example of the ongoing failure of the Israeli government over many years is provided by the question of the security fence. The "Palestinians" and their friends have recently focused on this fence. They say it is illegal for the same reasons that the settlements are illegal; because parts of the fence are built on "Palestinian land". This could have been used by the government of Israel as a stage and opportunity to highlight already discussed law, thereby introducing it to the world stage while reaping the added benefit of justifying the fence since one is generally allowed to build a lifesaving device in one's own garden. Yet even here, in the face of the International Court of Justice, the government of Israel has refrained from invoking the international law that favors its position. The question is why?
Sharon and Olmert also argue that evacuation is desirable for democratic and demographic reasons. But this assumes that the principle of democracy (one man, one vote) requires territorial continuity. For 19 years mount Scopus was an Israeli territory encircled by "Jordanian territory. The UK spread not only across the water to Northern Ireland, or to Gibraltar, but to the Falkland Islands in the other end of the world. This argument is enough to refute the Sharon-Olmert thesis, but one could add to this that Arabs in Western Palestine do not serve in the IDF, and so have not in any case earned the right to vote in the Israeli national elections.
Mr. Sharon's willingness to evacuate Gaza or parts of Judea and Samaria ought to more aptly be compared to the UK's willingness to evacuate Cambridge and Oxford. Internal discussions lasting many years would be necessary before such a fundamental decision could be taken. In fact in most states it is considered treason to contribute to the transfer of the land of the state to a foreign power (surely to an enemy). But if the government of Israel conceals the fact that Israel has the right according to international law to sovereignty in all of Western Palestine, then neither its own citizens nor the citizens of the world at large, will ever know about the treason taking place. The transfer of Jews is made easier and more acceptable by keeping the facts concealed. The irony is that even in places in the world, where Jews have no special rights such as those accorded to us here by international law, the singling out of Jews for a transfer would be considered as racist, anti-Semitic and illegal. Imagine for example her majesty government decreeing that all the Jews (only) in Cambridge and Oxford will have to evacuate these towns and move to other parts of the country!
The U.K., for example, was even willing to send an entire Armada at enormous cost and sacrifice to protect a part of its national entity as far away and strategically marginal as the Falkland Islands. PM Sharon, meanwhile, is contemplating giving away national land at Israel's doorstep. Even Kefar Darom that fell in the War of Independence and resurrected by Israel is to be evacuated. Could one imagine a better reward and encouragement for terrorism? It is shocking to imagine the degree of demoralization and confusion, and the irreversible loss of morale and pioneering spirit this would cause.
An evacuation from Gaza is both a reward and incentive for terror. Only an Israeli presence in all of Western Palestine enables Israel to prevent weapons smuggling and foil the organization of murderous attacks against its citizens. Also, and most importantly, the proximity of Arab and Jewish settlement has a beneficial value in that it deters the use of WMD on the Jewish population. So the presence of Arab habitation next to a Jewish habitation is not an argument to remove the Jews. At a time of increased fear of WMD use, particularly from Iran, the logical approach would entail explaining to the Israeli public and to the world at large the greater-than-usual importance of densely settling Jews in the whole of Western Palestine and in YESHA in particular. An Arab settlement next to a Jewish one jstrengthens the deterrence against Arab use of WMD. Instead the government wants to do the opposite and concentrate Jews in a very limited area with a minimum amount of Arabs around so that the Jews will constitute a more attractive target. The evacuation of Gaza would be such a lamentable move. Some Muslims see such a "separation" and the creation of a purely Jewish territorial entity as a sign from God that he indeed wants them to exterminate the Jews since the Jews facilitate their own extermination. It is also clear that if the presence of Arab villages and towns is a reason to dismantle Jewish settlement than one can find many more places other than Gaza from which to remove Jews. The presence of Arab habitation has never been a reason to avoid Jewish settlement in the whole of history of Zionism. The Sharon-Olmert logic is not only antithetical to the spirit and the letter of international law, it also contradicts the spirit of the pioneering fathers and is counterproductive to the existence and development of the state of Israel.