Legal basis of the State of Israel according to International Law

Today the US Secretary of State Mike Pompeo announced that:

“After carefully studying all sides of the legal debate… the establishment of Israeli civilian settlements in the West Bank is not, per se, inconsistent with international law,” 

I want to draw here a brief history of the borders and legal aspects, that AFFIRM the words of the US Secretary of State.

History of the borders

  • In 1916, during WWI, in a secret agreement between England and France, called Sykes-Pikot agreement, they agreed how they are going to split the Middle East between the powers.
  • in 1917, the British army defeated the Ottomans and conquered the land of Israel and the Arab lands to the east and to the south.
  • In November 2nd 1917 The Arthur Balfour wrote a letter that is known as the Balfour Declaration. It reads:

“His Majesty’s government view with favour the establishment in Palestine of a national home for the Jewish people, and will use their best endeavours to facilitate the achievement of this object, it being clearly understood that nothing shall be done which may prejudice the civil and religious rights of existing non-Jewish communities in Palestine, or the rights and political status enjoyed by Jews in any other country.”

  • in 1922, the “League of Nations” gave a mandate to the British government over Palestine. The preamble of the mandate document declared:

“Whereas the Principal Allied Powers have also agreed that the Mandatory should be responsible for putting into effect the declaration originally made on November 2nd, 1917, by the Government of His Britannic Majesty, and adopted by the said Powers, in favour of the establishment in Palestine of a national home for the Jewish people, it being clearly understood that nothing should be done which might prejudice the civil and religious rights of existing non-Jewish communities in Palestine, or the rights and political status enjoyed by Jews in any other country.”

  • in 1922, immediately after accepting the Mandate of Palestine, Britain separated Transjordan – the land east of the Jordan river to be an Arab state and not to be settled by Jews.
  • In 1937, after a long time of Arab riots, Britain sent a committee known as Peel Committee, that recommended a partition of the land into an Arab state linked to Transjordan, a small Jewish state, and a mandatory zone around Jerusalem. The Jews accepted the plan but the Arab rejected
  • As riots and tension increased, In 1947 Britain brought the issue of Palestine to the UN to decide. On November 29th, 1947 the UN accepted the UN Partition Plan. According to this plan, the land would split into Arab and Jewish states, and Special International Regime in Jerusalem and Bethlehem. 
  • The next day, November 30th 1947, the Arab started a civil war against Jews, where their goal is to block roads and separate the Jewish state. Separating Jerusalem was the main focus. During this civil war, around 700,000 Arabs left their houses.
  • On May 14th, David Ben Gurion declared the establishment of a Jewish State in Eretz-Israel. The date was set to be one the day after the British forces were planned to leave the country.
  • On May 15th 1948, six months after the war has started, the armies of five Arab countries invaded the land in order to destroy the Jewish state: Egypt, Transjordan, Iraq, Syria and Lebanon. 
  • Only in March 1949 the war ended, and armistice lines were set between the Israeli and Arab generals. 
  • The result of the war:
    • An Israeli state of the part that was supposed to be the Jewish state, and a little more
    • Annexation of Judea and Samaria to the Kingdom of Jordan. The Arabs that fled from Israel became citizens of the Kingdom of Jordan.
    • Gaza Strip under Egyptian military rule.
    • Jerusalem divided between Israel and Jordan.
    • 700,000 Arabs lost their homes in Israel. Some of them became citizens in Jordan, many of them remained without citizenship in the other Arab countries, until today.
  • On June 5th, 1967 during six-days war, Israel took all of Judea and Samaria, Jerusalem, Golan Heights and Sinai, including the Gaza strip.
  • According to peace treaty between Israel and Egypt, Israel has withdrawn from Sinai in 1982
  • In 2005, Israel evacuated all Jewish settlers from the Gaza Strip during the disengagement plan.

Jewish Settlement International status

Judea and Samaria

  • The international community condemns Israel for settling Jews in Judea and Samaria, because the 4th Geneva convention of 1949 prohibits countries from moving population into territories occupied in a war.
  • Israel claims that we are consistent with the law as Judea and Samaria were captured as a result of self defence and not offencive occupation. Moreover, the whole of the land, including Judea and Samaria was designated to the Jewish state according to the League of Nations resolution from 1922, and that the Jordanian occupation in 1948 was, in fact, illegal.
  • The international community, sees the Jewish settlements as obstacle to peace that will be in the future between Israel and the Arabs. 
  • Israel claims that there are many Arabs living in Israel, therefore it cannot be that Jews living in an Arab land are obstacle to peace. 
  • A peace process started between Israel and the Palestinian Arabs in 1993 during the Oslo Accord. According to the agreements, Israel and the Palestinian Authority are in charge of different areas called A, B and C. This was planned to evolve into a final peace agreement with defined borders.
  • Since 2000 and the second Intifada, the Oslo Accord got stuck and there are no more progress in teh peace process. Many international leaders talk about going back to the negotiation table, but it just does not happen.

Golan Heights

  • in 1916, Britain and France set the border between British Influence and French Influence according to the secret Sykes-Picot agreement. The line was drawn on a map and not in the land itself.
  • in April 1920, The League of Nations met in San Remo, Italy, and decided about the actual borders of the British and French Mandates. The british got an improvement of the border line to include the “Finger” of the Galilee together with Golan Heights in order to have water sources for the Jewish state to come.
  • In 1923, the Newcombe-Paulet Agreement set the final borders between Britain and France with all practical details. In this agreement, Golan Heights were handed from Britain to French in return to Mosul that was given from the French to Britain because the English found oil there.
  • In 1948, Syria tried to invade the state of Israel with the Arab coalition. In the end of the war the armistice line was  set to the 1923 border between France and England, so that the Golan was part of Syria.
  • In 1967 Israel conquered Golan Heights during six-days war. All Muslims and Arabs fled from Golan Heights to Syria. Only 4 Druze villages remained.
  • In 1981, Israel ratified the Golan Heights Law, which claims the Israeli law over the Golan Heights. The law was not recognized by UN and was determined null and void by the UN security council.
  • on March 25, 2019, The United States recognized the Golan Heights as part of Israel through a presidential proclamation signed by U.S. President Donald Trump 

Why do people think that the settlements are not legal?

Having said all the above, the question still remains: according to international law, are the settlements in Judea & Samaria and Golan Heights legal?

It is important to understand that there is no simple answer to this question. There is no international court that is accepted by all nation to deal with all international conflicts. For example, the state of Israel is not accepted by many Muslim countries as a legal state, although it is a member in the United Nations and the countries that negate Israel, are also members in the same UN. So how can this be? This is because the UN is not an international court. There is no one agreement that all nations apply to and accept.

The International Court of Justice in Hague is a court accepted by many nations, but not all. This is an example how difficult it is for the nations to agree about any legal subject.

When dealing with countries in conflict, or worse: authorities that are not countries (Palestinian Authority) – there is no easy way to sort legal disagreements.

UN Security Council Resolution 446 from 22 March 1979, opposed the establishment of Israeli settlements in the occupied territories.

Israel did not accept this resolution (like many other UN anti-Israel resolutions), stating that its interpretation of the fourth Geneva Convention is incorrect. As there is no supreme court to decide about such issues, and as there is no Executive Authority of International law issues – there is no solution that is agreed and can be applied.

There are some other examples of how conflicts between countries were not resolved by the international community, but rather by power: China taking over Tibet; Russia taking Crimean peninsula from Ukraine or England that took Falkland Islands from Argentina. In the end of the day, almost all conflict have been only resolved by armies.

Epilog: What is ‘Palestine’?

People wonder, sometimes, what is the origin of the word Palestine and why is it considered as the real name of the land of Israel.

Here is a brief history of this name:

  • In the 7th century 604 B.C, The Babylonians destroyed and exiled the Philistine people from the land. The term Philistia is read in the Bible:   “This is the burden which came in the year that King Ahaz died. “Do not rejoice, all you of Philistia,
    Because the rod that struck you is broken; “ (Isaiah 14:28-29 after the death of Tiglath Pileser 727 BC)
  • The southern coast of Israel was named “land of Philistines“ many years after they were not in the land anymore.
  • In the 2nd century A.D., Hadrian the Roman emperor defeated the Jews very badly. He wanted to wipe out the names “Judea” and “Jerusalem” from history. So he renamed “Jerusalem” – “Aelea Capitolina”, and renamed “Provinciae Judea” – “Provinciae Palestina”. He chose the name “Palestina” as a name that was known for the area, and had nothing to do with Jews and Judea.
  • Since then, in the Roman chronicles, Judea was no more, and Palestina was the new name. In Europe, this last throughout the Roman period, the Middle Ages until modern time.
  • In 1917, during WWI, the British army defeated the Ottomans and took the land of Israel and the Arab lands to the east and to the south.
  • in 1922, the “League of Nations” gave a mandate to the British government over Palestine. The goal was to establish a national homeland for Jews in Palestine. The name Palestine was used as this was the common European name to the land.
  • In 1948, while a war is going on with the Arab countries, the state of Israel was founded.
  • in 1964, While Judea and Samaria were under Jordanian occupation, Palestinian National Council wrote the Palestinian Charter. Quoting some articles from the charter:
    • Article 1: Palestine is the homeland of the Arab Palestinian people; it is an indivisible part of the Arab homeland.
    • Article 2: Palestine, with the boundaries it had during the British Mandate, is an indivisible territorial unit.
    • Article 9: Armed struggle is the only way to liberate Palestine. This it is the overall strategy, not merely a tactical phase.
    • Article 10: Commando action constitutes the nucleus of the Palestinian popular liberation war. This requires its escalation, comprehensiveness, and the mobilization of all the Palestinian popular and educational efforts and their organization and involvement in the armed Palestinian revolution.
  • Although in English the name of the country is Palestine, the Arabs do not have the letter ‘P’ in Arabic, so instead they pronounce it “Phalastin”. The name they chose is not a word in Arabic but it is a name taken  from the European Latin world, or to be more accurate, from the Jewish Bible (Philistine).

Judea and Samaria – The heart of the land of Israel

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So the Lord gave to Israel all the land of which He had sworn to give to their fathers, and they took possession of it and dwelt in it. (Joshua 21:43)

The book of Joshua tells us, in chapter 21,  how the sons of Israel conquered the whole of the land of Canaan.

But then in chapter 23, Joshua says:

See, I have divided to you by lot these nations that remain, to be an inheritance for your tribes, from the Jordan, with all the nations that I have cut off, as far as the Great Sea westward. And the Lord your God will expel them from before you and drive them out of your sight. So you shall possess their land, as the Lord your God promised you.  (Joshua 23:4-5)

This is not clear. Did Israel conquer the whole of Canaan or are there still Canaanites in the land?

In the book of Judges we get the picture: Although the whole of the land was divided between the tribes, there are still many big cities that remain to be conquered:

27 However, Manasseh did not drive out the inhabitants of Beth Shean and its villages, or Taanach and its villages, or the inhabitants of Dor and its villages, or the inhabitants of Ibleam and its villages, or the inhabitants of Megiddo and its villages; for the Canaanites were determined to dwell in that land … 29 Nor did Ephraim drive out the Canaanites who dwelt in Gezer … 30 Nor did Zebulun drive out the inhabitants of Kitron or the inhabitants of Nahalol … 31 Nor did Asher drive out the inhabitants of Acco or the inhabitants of Sidon, or of Ahlab, Achzib, Helbah, Aphik, or Rehob… 33 Nor did Naphtali drive out the inhabitants of Beth Shemesh or the inhabitants of Beth Anath (Joshua 1:27-36)

The map below shows the borders at the end of the book of Joshua.

The pink areas were taken by the sons of Israel, and the green is the remaining land:

conqueredland3

Look carefully at the shape of the conquered land – Does this shape looks familiar?

Now look at the map of Israel in the years between 1948 – 1967 and compare to the map of the conquest:

The conquest of Joshua                                                 Borders of Israel between 1948-1967

compare conquests of joshua with israel

You will find, surprisingly, that the two maps are mirrors for each other!

In the time of Joshua, Judea and Samaria were the main land (in pink), while the rest (in green) is the remaining land.

But in modern Israel, the remaining land of Joshua is the state of Israel, and Judea and Samaria are the “remaining land”!

As much as Judea and Samaria are not considered part of Israel by most of the international community, It is in fact the heart of the land from which the sons of Israel started their conquest.

Anyone who supports the historical right of Israel and the Jews of their historical land, cannot take Judea ans Samaria out of it as it is the “Heart of the Country”.