[Part one of this article can be read at http://www.israelnationalnews.com/article.php3?id=4147 and part two at http://www.israelnationalnews.com/article.php3?id=4154.]
JNR Are Not Rescinded in View of UN Resolutions
The UN has produced many resolutions that are not legally binding. They are merely recommendations (under Chapter 6 of the Charter, as distinguished from those resolutions pursuant to Chapter 7, which are legally binding). A large part of Julius Stone's book is devoted to the refutation that these recommendations are a new kind of international law. The most basic recommendation of this type is Resolution 242.
According to the enemies of Israel, Jewish settlements in the territories are illegal according to resolution 242. But this is a falsification of the resolution and in no way does Resolution 242 rescind Jewish national rights (JNR). If this resolution had rescinded JNR, this would mean that the UN would transgress fundamental and constitutional principles of both the League of Nations and the UN. The mandate for Palestine was the most fundamental declaration of the League of nations, which is also enshrined in the charter of the UN. It would also mean that Professor Eugene Rostow, the ex-dean of the best law school in the US (Yale), Under-Secretary of State, and a formulator of Resolution 242, contradicted himself many times when for many years after 242 was passed, he continued to write articles whose essence was stressing the continuing obligations of the Palestine Mandate; i.e., the continued validity of JNR.
Recommendation 242 calls for retreat "from territories". Despite Arab and Soviet pressures (Julius Stone, p. 53), the versions that spoke of "from the territories", or "from all the territories" were not accepted. But in the hands of the enemies of Israel, the "the" is always added and the resolution is thus falsified. It is also often ignored that Israel has already more than fulfilled her part of the agreement; it has retreated from more than 90% of the territories. It is frequently ignored that Resolution 242 referred to the Sinai peninsula, too. It is also often ignored that the resolution calls for retreat to "secure and recognized boundaries"; i.e., the resolution refers to a retreat in the context of peace between Israel and all its neighbors, not to a unilateral, a priori retreat. It should also be clear to everybody that "secure boundaries" means retaining Judea, Samaria, Gaza and the Golan. That this is the meaning of the term "secure boundaries" in this context was also the opinion of the report of the Chief of Staff of the American army to president Lyndon Johnson in 1968. The security value of these territories has only increased since then, also as a deterrent against the use of Weapons of Mass Destruction.
Julius Stone also completely refutes (Chapter 4, pp. 59-66, pp. 127-128) the contention that the Resolution of November 29, 1947, Resolution 181(II) (the "Partition Plan" of 1947) is still legally binding on Israel, requiring her to accept or even facilitate the establishment of an additional Arab State (in addition to Israel and Jordan) within the borders of Mandated Palestine West of the Jordan (Cisjordan).
Stone argues that that resolution never came into legal force at all: "The Arab states not only rejected it, but committed armed aggression against it and against Israel, and thus wholly aborted it. They deliberately destroyed it, as it were, in utero, before it entered the world of legal effectiveness.... To propose that Resolution 181 (II) can be treated as if it has binding force in 1981, for the benefit of the same Arab states, who by their aggression destroyed it ab initio, also violates 'general principles of law,' such as those requiring claimants to equity to come 'with clean hands', and forbidding a party who has unlawfully repudiated a transaction from holding the other party to terms that suit the later expediencies of the repudiating party." (Chapter 4, ibid/)
The legal rule that action has consequences seems to have completely escaped the attention of recent Israeli leaders since the beginning of the "Oslo process". Thus, even the great enunciator of reciprocity, Prime Minister Benjamin Netanyahu, strangely declared his 'reluctant' obligation to carry on with the Oslo obligations that he inherited, ignoring that he was not obliged at all to continue in view of the many infractions of the Oslo Accords committed by the other side.
No Territorial Continuity Required and No Demographic Problem
The complete citation of Ehud Olmert on Arutz-7 Radio mentioned above reads: "There is no escape from the evacuation of settlements in order to prevent daily confrontation with the world; if we will not so act we will pay a high price and also lose the identity of Israel as a Jewish and democratic state." But a situation in which a resident of Gush Katif votes for a parliament in Jerusalem and, a short distance from him, an Arab resident votes for a parliament in Amman or Gaza City, for example, is exactly analogous to a resident of Northern Ireland voting for a parliament in London (across the water) and a short distance from him, a resident votes for the parliament in Dublin. In both cases, the national voting is not necessarily determined by what is expected from consideration of geographical continuity. One can multiply such examples to show that there can be a Jewish and democratic country without the uprooting of Jews if we do not insist on territorial continuity. Recall, too, that in the 19 years of the illegal Jordanian rule in the West Bank, Mount Scopus was encircled by "Jordanian" territory but it was still a part of Israel.
The one (as the Arabs themselves say) Arab nation has plenty of land, states and natural resources. Miniscule Israel has also to think of future Jewish generations that will require space. Therefore, the empty spaces in the territories should be reserved for future Jewish generations and not for Arabs. This also corresponds to the fact that according to international law (i.e., the Mandate obligations, which are still valid), Jews exclusively have been given political rights in Western Palestine.
It should also be noted that in the past, Arabs voluntarily moved from Western Palestine to Eastern Palestine when the West Bank was under Arab control: "During the Jordanian occupation of the West Bank, there was considerable migration from the West Bank to the East, so that the West Bank sank from 62 percent to 38 percent of the whole Jordanian population; 400,000 Palestinian Arabs voluntarily migrated from the West to the East bank of the Jordan River. Since 1967, Jordanian passports are also grantable to stateless Palestinians of Gaza." (p.187, Julius Stone's book) Israel certainly cannot be blamed for this voluntary migration to the East Bank.
This voluntary eastwards migration is one among the many indications that the Arabs use the "Palestinian refugees" as a political weapon against Israel. This corresponds to the fact that the Israeli authorities begged the Arabs to stay during the 1948 war, but the Arab residents were threatened by their leaders to leave. Also, it is the case that "Palestinian Arabs who moved from Cisjordan to Transjordan [ in 1948, for example] were in fact only migrating from one part of Palestine to another, over relatively short distances, averaging perhaps 50 to 100 miles. They continue to live within a similar cultural, demographic, linguistic, religious, and even climatic environment." (Julius Stone's book, p. 25)
Most Palestinian "refugees" are already living in Palestine. Many live in the four-fifths of Palestine that was meant to be part of the Jewish state according to JNR; i.e., in present-day Jordan. Those not currently living in Palestine can be accommodated in this greater part of Palestine, too, or in other Arab states. The real refugees were Jews who were forcibly expelled from Arab countries, leaving behind their property. Their number and property far exceeded that of the "Palestinian refugees". They were displaced over long distances from places where they often preceded the Arabs. But little Israel, unlike the Arabs, has absorbed them without international aid.
There is an internal contradiction in Ariel Sharon's pretence that retreat from part of Western Palestine will strengthen the Jewish hold on other parts. The opposite is true. The UK, for example, has not given up on Cambridge and Oxford in order to strengthen its hold in London. It has not even given up on the far-away Falklands Islands. JNR refers to Jewish rights in (at least) all of Western Palestine. Partial retreat from any part of Palestine will be interpreted as an admission of the illegality of the right for Jewish sovereignty in any other parts of Western Palestine.
Significantly, after the government passed its "disengagement" plan, the acting ambassador in London was told by the presenter of a major BBC radio program that Israel should now quickly follow with the evacuation of all the other settlements, since by accepting this partial evacuation, Israel has admitted that all the other settlements are illegal. Indeed, nobody can imagine that a nation would uproot its own citizens from part of its homeland if it is legally entitled to all its homeland. Furthermore, since from the point of view of international law, there is no difference in the legality of Jewish settlements on both sides of the Green Line, any retreat in Western Palestine contributes to the view that a Jewish state anywhere in Western Palestine is illegal.
Conclusion: The State Comptroller Should Inquire Why JNR Are Not Asserted
In conclusion, the claims of Sharon and Olmert and their followers that the proposed retreat is important to avoid daily confrontation with the world cannot be sustained in view of the Israeli government's banning of all public enunciation of JNR; and the claim that the demographic problem involved in the maintenance of a democratic and Jewish state requires the proposed retreat cannot be sustained if we do not insist on unnecessary territorial continuity.
It is also hard to avoid the conclusion that the proposition of the Attorney General and his team to adopt de jure an irrelevant principle, the Fourth Geneva Convention, and to ignore a relevant principle, JNR, in the context of the security fence and in general, is both objectively illegal and destructive to Israel's interests, and it contributes to the delegitimization of the settlements and of Israel itself. This proposition is in line with forbidding Israeli diplomats from the Ministry of Foreign Affairs and the Prime Minister's Office from publicly asserting JNR.
It is also to be noted that Israel's official representatives are not even seen in public invoking the principle ex iniuria non oritur ius, the principle that an aggressor shall not benefit from the fruits of his aggression. Indeed, if an aggressor was assured in advance of automatically getting back his own territory lost in his victim's war of self-defense, this would encourage all prospective aggressors; they will know that they have nothing to lose in committing their aggression (Julius Stone's book, pp. 51-56) Thus, when Julius Stone says that "many international lawyers of standing concluded that international law presented no obstacles even to formal annexation [of the territories] by Israel if she were so minded," (pg. 52) this can be based solely on that part of international law (and the many examples that fulfill this principle) that does not require the "handing back of territory even to an aggressor who was the former sovereign."
But of course Jordan and Egypt were not former sovereigns in the West Bank and Gaza, rather their presence in these places "was only by virtue their illegal entry in 1948." On the other hand, Israel has the sovereign rights by virtue of JNR, in addition to her rights to retain the territories because they were obtained in self-defense. So Israel's rights to sovereignty in the territories are multiple. It is to be hoped that the state comptroller will urgently investigate why these multiple rights are not openly and publicly asserted by Israel's official representatives.
[Part 3 of 3]
JNR Are Not Rescinded in View of UN Resolutions
The UN has produced many resolutions that are not legally binding. They are merely recommendations (under Chapter 6 of the Charter, as distinguished from those resolutions pursuant to Chapter 7, which are legally binding). A large part of Julius Stone's book is devoted to the refutation that these recommendations are a new kind of international law. The most basic recommendation of this type is Resolution 242.
According to the enemies of Israel, Jewish settlements in the territories are illegal according to resolution 242. But this is a falsification of the resolution and in no way does Resolution 242 rescind Jewish national rights (JNR). If this resolution had rescinded JNR, this would mean that the UN would transgress fundamental and constitutional principles of both the League of Nations and the UN. The mandate for Palestine was the most fundamental declaration of the League of nations, which is also enshrined in the charter of the UN. It would also mean that Professor Eugene Rostow, the ex-dean of the best law school in the US (Yale), Under-Secretary of State, and a formulator of Resolution 242, contradicted himself many times when for many years after 242 was passed, he continued to write articles whose essence was stressing the continuing obligations of the Palestine Mandate; i.e., the continued validity of JNR.
Recommendation 242 calls for retreat "from territories". Despite Arab and Soviet pressures (Julius Stone, p. 53), the versions that spoke of "from the territories", or "from all the territories" were not accepted. But in the hands of the enemies of Israel, the "the" is always added and the resolution is thus falsified. It is also often ignored that Israel has already more than fulfilled her part of the agreement; it has retreated from more than 90% of the territories. It is frequently ignored that Resolution 242 referred to the Sinai peninsula, too. It is also often ignored that the resolution calls for retreat to "secure and recognized boundaries"; i.e., the resolution refers to a retreat in the context of peace between Israel and all its neighbors, not to a unilateral, a priori retreat. It should also be clear to everybody that "secure boundaries" means retaining Judea, Samaria, Gaza and the Golan. That this is the meaning of the term "secure boundaries" in this context was also the opinion of the report of the Chief of Staff of the American army to president Lyndon Johnson in 1968. The security value of these territories has only increased since then, also as a deterrent against the use of Weapons of Mass Destruction.
Julius Stone also completely refutes (Chapter 4, pp. 59-66, pp. 127-128) the contention that the Resolution of November 29, 1947, Resolution 181(II) (the "Partition Plan" of 1947) is still legally binding on Israel, requiring her to accept or even facilitate the establishment of an additional Arab State (in addition to Israel and Jordan) within the borders of Mandated Palestine West of the Jordan (Cisjordan).
Stone argues that that resolution never came into legal force at all: "The Arab states not only rejected it, but committed armed aggression against it and against Israel, and thus wholly aborted it. They deliberately destroyed it, as it were, in utero, before it entered the world of legal effectiveness.... To propose that Resolution 181 (II) can be treated as if it has binding force in 1981, for the benefit of the same Arab states, who by their aggression destroyed it ab initio, also violates 'general principles of law,' such as those requiring claimants to equity to come 'with clean hands', and forbidding a party who has unlawfully repudiated a transaction from holding the other party to terms that suit the later expediencies of the repudiating party." (Chapter 4, ibid/)
The legal rule that action has consequences seems to have completely escaped the attention of recent Israeli leaders since the beginning of the "Oslo process". Thus, even the great enunciator of reciprocity, Prime Minister Benjamin Netanyahu, strangely declared his 'reluctant' obligation to carry on with the Oslo obligations that he inherited, ignoring that he was not obliged at all to continue in view of the many infractions of the Oslo Accords committed by the other side.
No Territorial Continuity Required and No Demographic Problem
The complete citation of Ehud Olmert on Arutz-7 Radio mentioned above reads: "There is no escape from the evacuation of settlements in order to prevent daily confrontation with the world; if we will not so act we will pay a high price and also lose the identity of Israel as a Jewish and democratic state." But a situation in which a resident of Gush Katif votes for a parliament in Jerusalem and, a short distance from him, an Arab resident votes for a parliament in Amman or Gaza City, for example, is exactly analogous to a resident of Northern Ireland voting for a parliament in London (across the water) and a short distance from him, a resident votes for the parliament in Dublin. In both cases, the national voting is not necessarily determined by what is expected from consideration of geographical continuity. One can multiply such examples to show that there can be a Jewish and democratic country without the uprooting of Jews if we do not insist on territorial continuity. Recall, too, that in the 19 years of the illegal Jordanian rule in the West Bank, Mount Scopus was encircled by "Jordanian" territory but it was still a part of Israel.
The one (as the Arabs themselves say) Arab nation has plenty of land, states and natural resources. Miniscule Israel has also to think of future Jewish generations that will require space. Therefore, the empty spaces in the territories should be reserved for future Jewish generations and not for Arabs. This also corresponds to the fact that according to international law (i.e., the Mandate obligations, which are still valid), Jews exclusively have been given political rights in Western Palestine.
It should also be noted that in the past, Arabs voluntarily moved from Western Palestine to Eastern Palestine when the West Bank was under Arab control: "During the Jordanian occupation of the West Bank, there was considerable migration from the West Bank to the East, so that the West Bank sank from 62 percent to 38 percent of the whole Jordanian population; 400,000 Palestinian Arabs voluntarily migrated from the West to the East bank of the Jordan River. Since 1967, Jordanian passports are also grantable to stateless Palestinians of Gaza." (p.187, Julius Stone's book) Israel certainly cannot be blamed for this voluntary migration to the East Bank.
This voluntary eastwards migration is one among the many indications that the Arabs use the "Palestinian refugees" as a political weapon against Israel. This corresponds to the fact that the Israeli authorities begged the Arabs to stay during the 1948 war, but the Arab residents were threatened by their leaders to leave. Also, it is the case that "Palestinian Arabs who moved from Cisjordan to Transjordan [ in 1948, for example] were in fact only migrating from one part of Palestine to another, over relatively short distances, averaging perhaps 50 to 100 miles. They continue to live within a similar cultural, demographic, linguistic, religious, and even climatic environment." (Julius Stone's book, p. 25)
Most Palestinian "refugees" are already living in Palestine. Many live in the four-fifths of Palestine that was meant to be part of the Jewish state according to JNR; i.e., in present-day Jordan. Those not currently living in Palestine can be accommodated in this greater part of Palestine, too, or in other Arab states. The real refugees were Jews who were forcibly expelled from Arab countries, leaving behind their property. Their number and property far exceeded that of the "Palestinian refugees". They were displaced over long distances from places where they often preceded the Arabs. But little Israel, unlike the Arabs, has absorbed them without international aid.
There is an internal contradiction in Ariel Sharon's pretence that retreat from part of Western Palestine will strengthen the Jewish hold on other parts. The opposite is true. The UK, for example, has not given up on Cambridge and Oxford in order to strengthen its hold in London. It has not even given up on the far-away Falklands Islands. JNR refers to Jewish rights in (at least) all of Western Palestine. Partial retreat from any part of Palestine will be interpreted as an admission of the illegality of the right for Jewish sovereignty in any other parts of Western Palestine.
Significantly, after the government passed its "disengagement" plan, the acting ambassador in London was told by the presenter of a major BBC radio program that Israel should now quickly follow with the evacuation of all the other settlements, since by accepting this partial evacuation, Israel has admitted that all the other settlements are illegal. Indeed, nobody can imagine that a nation would uproot its own citizens from part of its homeland if it is legally entitled to all its homeland. Furthermore, since from the point of view of international law, there is no difference in the legality of Jewish settlements on both sides of the Green Line, any retreat in Western Palestine contributes to the view that a Jewish state anywhere in Western Palestine is illegal.
Conclusion: The State Comptroller Should Inquire Why JNR Are Not Asserted
In conclusion, the claims of Sharon and Olmert and their followers that the proposed retreat is important to avoid daily confrontation with the world cannot be sustained in view of the Israeli government's banning of all public enunciation of JNR; and the claim that the demographic problem involved in the maintenance of a democratic and Jewish state requires the proposed retreat cannot be sustained if we do not insist on unnecessary territorial continuity.
It is also hard to avoid the conclusion that the proposition of the Attorney General and his team to adopt de jure an irrelevant principle, the Fourth Geneva Convention, and to ignore a relevant principle, JNR, in the context of the security fence and in general, is both objectively illegal and destructive to Israel's interests, and it contributes to the delegitimization of the settlements and of Israel itself. This proposition is in line with forbidding Israeli diplomats from the Ministry of Foreign Affairs and the Prime Minister's Office from publicly asserting JNR.
It is also to be noted that Israel's official representatives are not even seen in public invoking the principle ex iniuria non oritur ius, the principle that an aggressor shall not benefit from the fruits of his aggression. Indeed, if an aggressor was assured in advance of automatically getting back his own territory lost in his victim's war of self-defense, this would encourage all prospective aggressors; they will know that they have nothing to lose in committing their aggression (Julius Stone's book, pp. 51-56) Thus, when Julius Stone says that "many international lawyers of standing concluded that international law presented no obstacles even to formal annexation [of the territories] by Israel if she were so minded," (pg. 52) this can be based solely on that part of international law (and the many examples that fulfill this principle) that does not require the "handing back of territory even to an aggressor who was the former sovereign."
But of course Jordan and Egypt were not former sovereigns in the West Bank and Gaza, rather their presence in these places "was only by virtue their illegal entry in 1948." On the other hand, Israel has the sovereign rights by virtue of JNR, in addition to her rights to retain the territories because they were obtained in self-defense. So Israel's rights to sovereignty in the territories are multiple. It is to be hoped that the state comptroller will urgently investigate why these multiple rights are not openly and publicly asserted by Israel's official representatives.
[Part 3 of 3]