The Lesson Learned

Rightly or wrongly, Migron was brought down, literally, because the court would not accept their claim to land ownership.

I still do not know exactly what parcels were purchased by Migron, what parcels were perhaps land awarded to the Arabs gratis - and therefore, the Jordanian occupation being illegal, there was no true ownership transferred, especially as their was no land development - or if the Arabs had falsified their documentation or whether Migron was 100% in the wrong on this matter.

In any case, I hope that all will be extra careful in the future and the fact that the Hebron purchase eventually was recognized is a sign that not all is corrupt despite the inexcusable actions of the Defense Ministry at the time and the continuing efforts of evil forces from within the judicial and legal frameworks of the Civil Administration of the Ministry of Justice.

In any case, here's an ad for the new Meromei Elkanah project and I have pointed out the clarification which reads:

The project has full legal accompaniment from the offices of lawyer of notary Elhanan Vinitzky and advice from Avraham Shvut.

I trust all will go well.

^

The Gordis Not

Daniel Gordis said "no" to the Levy Report in signing on to the far-left "Open Letter" (and the full text is below) released this week which has been fisked a bit here. At Haaretz, rather than his usual Jerusalem Post base, he defends his co-joining the left-of-center American Jews who decided to become very publicly upset at the publication of the Levy Report on Israel's rights in, and to, Judea and Samaria.  He published this piece, Choose hope: Don't adopt the Levy report.

In short, he thinks that

To state publicly that what we have in Judea and Samaria is not an occupation might be a legally justifiable claim. But it would also signal that it is time to give up even thinking about how a different reality in the Middle East might be achieved. That, we must not do.

Might be?  And why is that "different reality" abhorrent enough for Gordis to join the left-of-center crowd, lend them his name, and that of the Shalem Center?  Is the issue that important for him to decide to run with this group of Israeli critics?

Well, we need to review his thinking and so here are some extracts from his defense:-

The letter did not argue that Justice Levy’s legal argument was legally incorrect; it also took no stand on settlement issue writ large...The letter simply asserts that if the Prime Minister adopts the Levy Commission report, he will do Israel serious damage.

And how much damage does the letter cause, and I am not arguing that Gordis, et al., do not have the legal right to publish their thinking, but need it have been such a public shaming?  Here's how AP had it in an analysis:

Jewish settlements are at the heart of a 3-year-old deadlock in Mideast peace efforts.

Is that the portrayal that Gordis is comforable with?  He cannot offset that?  The "heart"?  Not the 90-year old Arab total rejection of Jewish nationalism and a Jewish presence anywhere inEretz-Yisrael?

The letter caused no damage or is it only the damage Netanyahu could possibly cause that is a problem?

He then outlines the damage to Pals. are doing to themselves:

Sadly, Israel has no partner with which to make peace. Today’s Palestinian leadership insists on the refugees’ right of return, something Israel cannot permit if it is to remain a Jewish State. The Palestinians have also rejected Netanyahu’s demand that they recognize Israel’s right to exist as a Jewish State, something that Israel must insist on if precluding the refugees’ return is to be defensible. Neither of those will change anytime soon.

He skips over a bit of terror, some incitement, the corrupt regime that is the Palestinian Authority vis-a-vis its own people and other aspects of a horrific reality but that is ignored.  Given, though, those two problematic demands, what is Israel to do?

...A wise Israeli leadership would do everything in its power to communicate to the world that beyond those two existential issues [Israel as a Jewish state and the no return of refugees - YM], which are not negotiable, Israel will discuss virtually anything. There are matters on which Israel will compromise, and others on which it will not...

What "anything" is "virtual"? What issues can be compromised?

Jerusalem?

True Arab democracy?

Demilitarization?

IDF presence, long- or short-term on the Jordan River?

Educational curriculum change?


What about Rabin's formula?  From his October 5,1995 Knesset speech, where he summarized his

...vision of the permanent solution. It will include united Jerusalem under Israeli sovereignty, the country's security border will be on the River Jordan, there will be no return to the 4 June 1967 lines and new blocs of settlements will be built in Judea and Samaria and the Gaza Strip. He spoke of the coming elections to the Palestinian Council, the IDF's re-deployment and the creation of three zones in the territories.

Or that isn't left or liberal enough for Gordis' fellow-signers?


Israel should not establish itself on principles of law?

...While the Levy Commission insisted that its findings were legal and not political, that distinction would be utterly lost on the international community.

Really?  And here we all thought that the most incriminating charge against Israel's presence beyond the Green Line, what justifies the BDS movement, was the illegality of it all.  That charge the world does understand but Israel proving that its presence in not illegal is incomprehensible?  "Illegality" subverts Israel's legitimacy but to disprove that is somehow no good?


Gordis then takes a large step forward which all Israel's governments have avoided for 45 years and more and asserts that now it will lose its ability to maintain a status quo which serves its policies best of all:

Observers everywhere would read the adoption of the Levy report as tantamount to annexing the West Bank. 

I hope.  But I don't think so.  And I am pretty sure Gordis knows that Netanyahu will not do that either.  Not because he doesn't want it but that in everything else he has done in his second term as Prime Minister has been to cover Israel with the US for the Iranian threat.  Gordis knows that that is what Bibi has been doing and so there was no need for him to publicly shame him and Israel in such a manner.

Moreover, he thinks profound damage will be caused:

It would be read as putting the Palestinians on notice that Israel plans never to evacuate any settlements, and that hopes for a Palestinian state are dead.

Wait.  With peace, and coexistence, being the goal to be achieved with the Arabs resident in the areas of the former Mandate that was established to "reconstitute" the Jewish National Home not under Israel's sovereignty, why should Jews remove themselves from where they live?

Will Arabs be removed from Nazereth, Rahat, Um El-Fahm?  Are Jews to be treated to a very different - and discriminatory and even immoral - reality?


He is also concerned:

...Israelis [will think] their political leadership believes that the status quo is actually the ideal and that young people should give up even dreaming that the conflict might, one day, be behind us. Can we imagine ourselves in an interminable conflict without numbing our moral sensibilities?

Well, better a status quo that provides security rather than a jump off the cliff is what most Israelis prefer.


He then waxes emotional:

Zionism at its best is aspirational..Zionism struggles to survive...It hopes for a richer and more sophisticated conversation about how a state can be Jewish. It should aspire to greater social equality. And it should yearn for a day when its sons and daughters will not have to go to war...

Zionism also strives for the time when Jews in the Diaspora, more properly, the Galut/Exile, will stop seeing themselves as equal to the Jewish community in Israel.  Yes, we are partners, yes we share the same visionary aspirations, the same wish for a thriving Jewish culture.  But Jews abroad need know that there is a line that doesn't always have to be crossed.  To be Jewish, nowadays, seems, especially in the camp Gordis chose to be aligned with, is to show just how much you can criticize Israel.

"I criticize Israel, thereby I am" is the now catchword, and so Gordis psoits that

To state publicly now that what we have in Judea and Samaria is not an occupation might be a legally justifiable claim. But it would also signal that it is time to give up even thinking about how a different reality in the Middle East might be achieved. That, we must not do.

Rabbi Dr. Gordis, Daniel, you erred in your own aspirational exuberance.  You erred in the 'friends' you chose.

As you wrote: "Not for naught is Israel’s anthem called “The Hope”, and yes, so we, too, have hope - for you.

As it is written in Psalms, in order to achieve peace, one must first distance oneself from evil.  One must stop speaking guile and do good.

^
P.S.  From Jonathan Tobin:

But what Gordis and the other 40 signers of the IPF letter miss is that by consciously downplaying its legal rights in the dispute, Israel has unwittingly strengthened the hand of those who oppose its existence, be it inside or outside the green line. By ceasing to speak of the justice of Israel’s case, the so-called “peace camp” played into the hands of those who think Jews have no more right to live in Tel Aviv than in Jerusalem or the most remote hilltop West Bank settlement...The assertion of Jewish rights is not incompatible with peace talks or even the surrender of much of the West Bank as part of a genuine peace accord. It is hard to imagine such talks succeeding under any circumstances in the absence of a sea change in the political culture of the Palestinians that would enable them to live with a Jewish state. But they have no hope of succeeding so long as the Palestinians think Israel can be made to give up all of the land without peace. Nor will the international community ever support an Israel they believe has “stolen” Palestinian land.

A generation of abdication of Jewish rights to the West Bank has not softened the hearts of the world or the Palestinians. If Israel is ever to negotiate a peace that will bring security, it must start by saying that it comes to the table not as a thief but as a party whose legal rights must be respected.

_________________________

The Letter:


July 13, 2012

The Honorable Benjamin Netanyahu
Prime Minister of the State of Israel

Dear Mr. Prime Minister:

As strong advocates for Israel’s security and well-being as a Jewish and democratic state, we are deeply concerned about the recent findings of the government commission led by Supreme Court Jurist (Ret.) Edmund Levy. We fear that if approved, this report will place the two-state solution, and the prestige of Israel as a democratic member of the international community, in peril.

As you boldly stated in your address to the United States Congress last May, “I recognize that in a genuine peace, we’ll be required to give up parts of the ancestral Jewish homeland.” As you said clearly, doing so is not easy. While the Jewish people indeed share a biblical connection to the lands of Judea and Samaria, you told Congress, “there is another truth: The Palestinians share this small land with us. We seek a peace in which they’ll be neither Israel’s subjects nor its citizens. They should enjoy a national life of dignity as a free, viable and independent people living in their own state.”

Securing Israel’s future as a Jewish and democratic state requires diplomatic and political leadership, not legal maneuverings. We recognize and regret that the Palestinian Authority has abdicated leadership by not returning to the negotiating table. Nonetheless, our great fear is that the Levy Report will not strengthen Israel's position in this conflict, but rather add fuel to those who seek to delegitimize Israel’s right to exist. At this moment, it is more critical than ever that Israel strengthen its claim in the international community that it is committed to a two-state vision, which is, in turn, central to Israel’s future as a Jewish and democratic state.
We are confident that with your deep understanding of the gravity of this situation, and your unprecedented political strength, you will ensure that adoption of this report does not take place.

Sincerely,

Karen R. Adler
Jack C. Bendheim
Michael Berenbaum
Howard M. Bernstein
Charles R. Bronfman
Steven M. Cohen
Rabbi Marion Lev Cohen
Lester Crown
Thomas A. Dine
Rabbi David Ellenson
Edith Everett
Susie Gelman
E. Robert Goodkind
Stanley P. Gold
Rabbi Daniel Gordis
David A. Halperin
Harold R. Handler
Alan S. Jaffe
Peter A. Joseph
Rabbi Jeremy Kalmanofsky
Peter S. Kolevzon
Steven C. Koppel
Burton Lehman
Marvin Lender
Geoffrey H. Lewis
Deborah Lipstadt
Rabbi J. Rolando Matalon
Harriet Mouchly-Weiss
Burt Neuborne
Bernard Nussbaum
Richard Pearlstone
Marcia Riklis
Rabbi Jennie Rosenn
David Sable
Rabbi David Saperstein
Jeffrey R. Solomon
Joel D. Tauber
Melvyn I. Weiss
Rabbi Eric H. Yoffie
Michael D. Young
Lawrence Zicklin

___________________

An open letter to Gordis.

P.S.

Baker now responds.

P.P.S.   Maurice Ostroff's reply.

^

The NYTimes' Version of 'All The News'

The NYTimes reports on the Levy Report.

Fatah's response is included.

Yesh Din's response is included.

Association for Civil Rights in Israel's response in included.

Yesha Council's response or of any official of any Jewish residency location is NOT included.

"All the news"?

^

British Boycott Babble

Reported:

European governments have every right to boycott trade with West Bank settlements, according to a leading international counsel, British newspaper The Independent reported Monday.  Cambridge professor of international law James Crawford formulated the formal opinion in a 60-page document obtained by The Independent. “There do not appear to be any EC [European Commission] laws which could be breached by a member state taking the decision to ban the import of settlement produce on public policy grounds,” Crawford asserted in the document.

He continued that imposing a ban on trade with settlements would not breach obligations to the World Trade Organization, because “as a member of international law, the West Bank and Gaza cannot be considered to be Israel’s territory.”

(k/t+=VozIzNeaiis)

Crawford, oddly enough, is Director of the Lauterpacht Centre.  Why?

Well, as for Lauterpacht legality, read on:

The international lawyer Dr. Elihu Lauterpacht has written that in order to determine the title to a particular area the normal procedure is to "trace the chain of title back from the present claimant to a holder whose rights were unquestioned".(2)

In the case of Palestine, of which the West Bank is part of, Turkey was the unquestioned holder and one need not go further back than the period of Ottoman rule. In July 1923, Turkey signed the Treaty of Lausanne, in which she renounced her rights and title to various territories which included Palestine.(3) By that time(4) the Council of the League of Nations had already granted the Palestine Mandate to Britain.(5) The question of Sovereignty over mandated territories had puzzled international lawyers for decades and there are a number of possibilities as to where the sovereignty rested. These include the League of Nations, the Mandatory Powers, or that the sovereignty was in abeyance.(6) A possible solution to this question came in 1950 when Sir Arnold McNair in his separate opinion on the International Status of South-West Africa stated that "Sovereignty over a Mandated Territory is in abeyance".(7)

The sovereignty over Palestine when the Mandate over Palestine terminated is discussed by Lauterpacht and he suggested the possibility of a sovereignty gap.(8) In accordance with the opinion of Sir Arnold McNair, this would be a continuation of the Sovereignty vacuum which existed during the life of the League of Nations.

However, since all are agreed that sovereignty was located somewhere or was in abeyance, it has been pointed out by international lawyers that "no mandated territory can be regarded, on the termination of the mandate over it, as a res nullius open to acquisition by the first comer,"(9) and that "sovereignty could only be acquired by lawful action."(10)

Dr. Elihu Lauterpacht (Lecturer in Law at the University of Cambridge): "Jordan was not entitled to claim any of the areas west of the river Jordan [West Bank]" and "Egypt was not entitled to assert sovereignty over the Gaza Strip."(16)

(2) Elihu Lauterpacht, Jerusalem and the Holy Places, (London: The Anglo-Israel Association, 1988), p.38
(3) Lausanne Treaty, signed between British Empire, France et al. on one side and Turkey on the other, on 24 July 1923, Article 16. The text may be found in The Treaties of Peace 1919-1923 vol.2, (New York: Carnegie Endowment for International Peace, 1924), pp.959ff.
(4) The Palestine Mandate was signed in London on 24 July 1922.
(5) British Mandate for Palestine, League of Nations, Official Journal, 3rd year, no.8, August 1922, Annex 391, pp.1007-12.
(6) Yehuda Blum, "The Missing Reversioner", Israel Law Review, vol.3, no.2, April 1968, p.282; Alan Levine, "The Status of Sovereignty in East Jerusalem and the West Bank," New York University Journal of International Law & Politics, vol.5, no.3, Winter 1972, p.489.
(7) International Court of Justice, Reports of Judgments, Advisory Opinions and Orders, 1950, International Status of South-West Africa, Advisory Opinion of July 11th, 1950, Separate Opinion by Sir Arnold McNair, p.150.
(8) Lauterpact, op. cit., pp.40-41.
(9) Blum, op. cit., p.283.
(10) Lauterpacht, op .cit., p.42.
(16) Lauterpacht, op. cit., p.44.

And this collection.  And this by Julius Stone.  And this from Eli Hertz.

In any case,

Prof. Crawford’s opinion rejects arguments suggesting that EU member states are obliged – rather than merely able – to enforce a ban.  According to the report, the legalist’s brief will be published by the Trades Union Congress later this week.

^

A Very Wrong "Raday Right"

Did you read this?

Although Finance Committee Chairman Moshe Gafni (United Torah Judaism ) expressed support for the legislation [35% tax credits for donations up to 2 million NIS for "settling the land" enterprises], he acknowledged that he recently received a legal opinion from Hebrew University legal scholar Frances Raday, who urged that it not be put to a vote as long as the bill did not exclude the West Bank from the tax credits, saying that providing the tax credits in support of West Bank settlement activity would be contrary to international law.  Gafni said, however, that the concerns were not relevant, and donations for all settlement were entitled to tax breaks.

Source


As for Professor Raday, she has much feminist legal experience.  She's even on the outstanding human rights body, the UN Human Rights Council.  And is a Member, International Council, New Israel Fund and has spoken out in defense of Israel's democracy.

But it's a critical defense, one that feeds Beinartism:

The recognition of a Palestinian state is as important to Israel as to the Palestinians. For Israel to continue to function as a democratic and Jewish state, it must bring about a symmetrical right of self-determination for the Palestinians.

She has written another article that presents the

"structuring a basic analytical framework, incorporating both Israeli and Palestinian perspectives, and will try to show the symmetries and asymmetries between them. This involves discussion of the rights of two peoples to self-determination and the means by which such parallel rights can be implemented. It also involves discussing differences in the means of implementation of the right to self-determination for Palestinians in the West Bank and Gaza, and minority rights for Palestinian-Israelis living in Israel within the 1948 Armistice Lines."

And she goes further:

Israel's character as a state for self-determination of the Jewish people was only expressed in the General Assembly partition plan, whose intention was to create a Jewish state alongside an Arab state.

And by the way, she uses the "disease" metaphor, a big no-no in liberal circles:

"There is an abundance of tools in jurisprudence to oppose discrimination of women; the problem is that people are dealing with symptoms, and not the disease," said Raday

But to return: that proposition "only expressed" - only - is anti-Zionist, seeks to freeze Israel as a 1948 creation - one that makes Israel dependent on UN recognition (rather than the other way around: the UN acknowledged the historic, legal, cultural, religious and natural right of the Jews to reconstitute the Jewish national home in the area the nations of the world termed "Palestine", a right awarded by international law bodies from Balfour to Versailles, from San Remo to the League of Nations) and attempts to Siamese-twin Israel to "Palestine" in the Beinartism-model.

There is no symmetry.

Note that Jews will have no minority rights in "Palestine" which means she seems to support the proposed apartheid Arab regime that exliudes Jews from achieveing residency rights therein.  Could there be Jewish-Palestinians?  I mean not theoretically but practically.

She writes there:

...the only way to create a meaningful human rights regime of self-determination for Israeli-Jews and Palestinians is by peaceful separation into two States - one for Israeli-Jews and Israeli-Palestinians, and the other for Palestinians - and by preferably ensuring cooperation between them.

In other words, what is fair - and legal - is Arabs get to live in three states there were once "Palestine", that is, Jordan, "Palestine" and Israel.  But Jews?  Only Israel.

Does that sound like a "right" to you?

It's a "Raday right", I guess.

Well, it's immoral, incorrect and just plain wrong.

^

New Fabrication from Dror Etkes via Haaretz

As reported by Dror Etkes' buddy in Haaretz, Akiva Eldar:

Etkes says an aerial photo shows that Israel has violated the agreement signed in Washington in September 1995. One clause states: “All civil powers and responsibilities, including planning and zoning, in Areas A and B set out in Annex III, will be transferred to and assumed by the Council [the Palestinian government] during the first phase of redeployment.”

Well, in the first instance, let's not lose sight of the exact context of that clause is here:

ARTICLE XI  -  Land

1. The two sides view the West Bank and the Gaza Strip as a single territorial unit, the integrity and status of which will be preserved during the interim period.

2. The two sides agree that West Bank and Gaza Strip territory, except for issues that will be negotiated in the permanent status negotiations, will come under the jurisdiction of the Palestinian Council in a phased manner, to be completed within 18 months from the date of the inauguration of the Council, as specified below:

a. Land in populated areas (Areas A and B), including government and Al Waqf land, will come under the jurisdiction of the Council during the first phase of redeployment.

b. All civil powers and responsibilities, including planning and zoning, in Areas A and B, set out in Annex III, will be transferred to and assumed by the Council during the first phase of redeployment

As the matter of "settlements" is a final-status issue, Etkes' supposition doesn't apply.

Moreover, I have been informed that:

The paragraph refers to the assumption of powers by the PA in areas A and B upon Israeli redeployment in 1995. This already happened. The PA did assume those powers including planning and zoning. Clause fulfilled.

Individual residents of Amona — and other Israeli individuals — were not parties to the agreement, and cannot be held to have violated it. Even if they could, they never had any authority over planning and zoning to transfer or fail to transfer. Israel was a party to the agreement, but nothing in that or any part of the agreement committed Israel to preventing Jews from construction in area B. Israel maintained security control in areas A and B and therefore maintained authority to, among other things, restrict movements of Palestinians in the area.

Article 10.4 of the agreement specified that “Israel shall continue to carry the responsibility for external security, as well as the responsibility for overall security of Israelis for the purpose of safeguarding their internal security and public order.” Article 12.2 stated that “Israel shall continue to carry … the responsibility for overall security of Israelis and Settlements, for the purpose of safeguarding their internal security and public order, and will have all the powers to take the steps necessary to meet this responsibility.” Article 13.1.a stated that “Israel shall have the overriding responsibility for security for the purpose of protecting Israelis and confronting the threat of terrorism.”

And, by the way, how exactly is it possible for aerial photographs to establish whether Israel did or not transfer the authority to regulate building and planning to the Palestinians in 1995?

Etkes from extreme Left to Eldar of far Left into Haaretz of progressive Left - all leave you out of knowledge.

^

Precise and Concise Legal Opinion

Here is Howard Grief, in response to questioners, on the legal land issues and rights of the Jewish people:

Under Israeli constitutional law, Israel can annex any area of the Land of Israel that is not yet part of the State of Israel simply by applying the corpus of the law of the State to the area in question, as confirmed by the Supreme Court of Israel. This can be done in four ways: (1) by the issuance of a government order; (2) by a new proclamation issued by the Defense Minister, to which is attached a map of Eretz-Israel noting or depicting the area of the Land of Israel to be annexed; (3) by an existing proclamation with a map of Eretz-Israel showing the area to be annexed; and (4) by the passage of a new law.

If we follow the 1948 precedent of Prime Minister David Ben-Gurion acting in his capacity as Defense Minister, then the route or constitutional procedure to follow is by a proclamation issued by the Defense Minister with a map of Eretz-Israel depicting the area of annexation. This is how Ben-Gurion incorporated into the nascent State of Israel all areas of the Land of Israel beyond the UN Partition lines that were liberated or repossessed by Jewish military forces that were later unified as the Israel Defense Forces. Ben-Gurion’s action was fully consistent with international law which, in the years 1919 to 1924 recognized that all of Mandated Palestine was to be included in the future independent Jewish State. The 1947 Partition Resolution was an illegal derogation from what international law had previously determined regarding exclusive Jewish national rights to Palestine.

...The fact that Israel has not incorporated Judea and Samaria, as well as Gaza, into the borders of the State of Israel ever since these regions were liberated or repossessed by the Israel Defense Forces in June 1967 is an indictment against the Government of Israel for violating its own constitutional law, which I have written about in various articles. In fact, this was one of the major legal arguments I made in my Petition to Annul the Interim Agreement (of September 28, 1995), filed before the Supreme Court of Israel in May 1996. You may download the Petition (in English) from the web-site of the Ariel Center for Policy Research.

All legal rights held by the Jewish People to the Land of Israel or to former Mandated Palestine remain intact to this very day. Such rights are imprescriptible (not subject to any statute of limitations), indefeasible (no possible annulment or voidance) and inalienable (no possible transfer) (pages 191; 576 of my book). The continuing failure of the Government of Israel to annex Judea, Samaria and Gaza, does not nullify or negate Israel's rights to these regions, but does leave them open to challenge and doubt, especially by those ignorant of or hostile to Israel’s duly recognized legal rights under international law. Any renunciation by Israel of those fundamental rights is blatantly illegal and unconstitutional.

Jordan’s illegal “annexation” of Judea and Samaria violated international law and did not affect or change Israel’s rights to these regions. As you probably know, Egypt never annexed Gaza, but ruled it illegally under military administration from 1948 until the Six-Day War of June 1967. Insofar as the 1948 Armistice Agreements were concerned, Israel did not cede any of its legal rights to those areas of the Land of Israel that fell under foreign Arab occupation, in particular, the lands held by Jordan or Egypt...

... – the UN Partition Resolution, the Road Map Peace Plan, etc. – are [not] true documents or acts of international law and thus cannot deprive Israel of its existing legal rights. Even if those documents were vested with this status or character, they cannot legally override or rescind the rights of Israel to the Land of Israel previously recognized...

Well,, yes, but have not Jewish legal rights to the Land of Israel or former Mandated Palestine that were recognized in 1920 at the San Remo Peace Conference been “superseded in importance by subsequent events”, with even Israel itself having accepted or acknowledged that fact by entering into various agreements or endorsing plans that contravene those rights originally derived from the San Remo Resolution and the Mandate for Palestine?

...Jewish sovereign rights over [Judea, Samaria and Gaza] that were recognized as vesting in the Jewish People in the San Remo Resolution and the Mandate for Palestine in 1920 and 1922 respectively, remain intact and have not been “superseded by subsequent events”...

...The Doctrine of Estoppel...prevents or precludes those nations or states that in 1920 and 1922 recognized or assented to our rights in a legally valid treaty or international agreement or simply by being a member of the League of Nations, from afterwards denying or retracting their express or implied recognition or consent...[otherwise] treaties or agreements would be absolutely worthless and international law would have no meaning. Hence the countervailing Doctrine of Estoppel comes into play to protect those rights already recognized in a treaty or valid legal agreement or instrument. The same doctrine also applies to Jewish rights to Palestine which were recognized or acknowledged by 52 (not 51 as often propounded) nations in 1922 when the Mandate was confirmed and separately recognized or acknowledged by the United States in 1924 in a treaty with the U.K. That means that all those nations or states (including the U.S.) are estopped or precluded from acting contrary to what they have already assented to in regard to Jewish sovereign rights to Palestine and the Jewish National Home.

The Doctrine of Estoppel which safeguards sovereign Jewish rights to the Land of Israel is reinforced by Article 80 of the UN Charter, which preserves, as I have pointed out in my book and in various articles and letters, all Jewish rights to Palestine derived from the San Remo Resolution and the Mandate, and can be invoked against the UN itself to stop it from violating those rights...

...[and] The principle of Acquired Legal Rights. This is the flip side of the Doctrine of Estoppel. Once sovereign rights over the Land of Israel were vested in the Jewish People as a direct result of the San Remo Resolution and the Mandate for Palestine, those rights continued to exist, even after the Mandate’s termination on May 14-15, 1948. This principle is now codified in Section 70(1)(b) of the Vienna Convention on the Law of Treaties. Jewish rights in a de facto sense may temporarily be lost sometimes, even for a long period of time, as a result of catastrophic events such as the consequence of a war, conquest or subjugation, but they will be restored automatically when the circumstances return to what they were prior to the war, conquest or subjugation. Thus, the right to build Jewish settlements in Judea, Samaria and Gaza specified in the Mandate was temporarily lost during the 19-year period of Jordanian and Egyptian occupation of those regions of the Jewish National Home from 1948 to 1967, but this right immediately revived when the illegal Arab occupations were brought to an end in the Six-Day War of June 1967.

Apart from violating Jewish legal rights derived from the Mandate for Palestine and preserved by the Doctrine of Estoppel, as well as Article 70(1)(b) of the Vienna Convention on the Law of Treaties and by Article 80 of the UN Charter (i.e., international law), any voluntary forfeiture or cession of Jewish legal rights would be also a violation of both Israeli constitutional law and Jewish law, and is therefore illegal. Jewish rights to the land may be given up only in cases of absolute necessity, i.e., under duress, where the alternative would be annihilation of the Jewish State and/or its population. In those cases, the land can be later reclaimed once the necessity or duress has passed or no longer exists.

...none of the subsequent “superseding events” referred to...erases, abrogates, rescinds or repeals pre-existing Jewish legal rights to any region of the Jewish homeland, because the documents that were formulated “post-San Remo” either by the United Nations or by the artificial conglomerate known as the “Quartet”, do not constitute binding acts of public international law...

Yes, well what about whether the Mandate was similar to others and should have provided for all the peoples living in the terriutory and not specificaly or even exclusively Jews?

...What basically differentiated the Mandate for Palestine from the other Class “A” Mandates was the identification of the national beneficiary which was to be tutored or assisted by an “advanced nation”, i.e., the Mandatory Power – toward eventual independence in accordance with the general provisions of Article 22 of the Covenant of the League of Nations. In the specific and exceptional case of Palestine, the national beneficiary that was to be tutored or assisted was not the local inhabitants of the country nor all “the people of Palestine”, but the Jewish People or World Jewry, most of whom did not reside at the time in the country.

In this connection, the opening words found in Paragraph 1 of Article 22, which refers to “those colonies and territories… which are inhabited by peoples not yet able to stand by themselves under the strenuous conditions of the modern world”, the words “inhabited by peoples” in the context of the creation of Palestine as a mandated territory to be governed by the Balfour Declaration, a decision adopted by the victories Principal Allied Powers of World War I on April 24, 1920 at the San Remo Peace Conference, alluded not only to those Jews who were already physically present in Palestine (some 65;000, according to the Peel Report, p. 40), but also to all other Jews who in the years ahead would emigrate to Palestine to help build the Jewish National Home and thus establish the independent Jewish State in accordance with the Allied decision of April 24, 1920, as stated exactly by both Foreign Secretary Lord Arthur James Balfour and Prime Minister David Lloyd George.

...This decision to name the Jewish People as the national beneficiary of the Mandate for Palestine under Article 22, paragraph 1 was taken by the Principal Allied Powers because of the Jewish historical connection with the country, as stated in the third recital of the Preamble of the Mandate for Palestine. The country of Palestine was not considered an Arab land despite the fact that the Arabs, at the time the Mandate was granted to Britain, were by far the largest segment of the population, but rather a land strongly tied historically to the Jews – a land that was to be set aside for Jewish self-determination.

That Palestine was not considered to be an Arab land like Syria or Iraq or, for that matter, like the principalities and sheikdoms of Arabia, was confirmed in the Peel Report itself, which cited the words of Lord Alfred Milner, who had played a key role in producing the final draft version of the 1917 Balfour Declaration prior to its approval by the Imperial War Cabinet on October 31, 1917. The Peel Report stated:

Palestine was different from the other ex-Turkish provinces. It was indeed, unique both as the Holy Land of three world-religions and as the old historic homeland of the Jews. The Arabs had lived in it for centuries, but they had long ceased to rule it, and in view of its peculiar character they could not now claim to possess it in the same way as they could claim possession of Syria or Iraq. Speaking in the House of Lords on the 27th June, 1923, Lord Milner declared himself “a strong supporter of pro-Arab policy”. “I believe in the independence of the Arab countries… I look forward to an Arab Federation”. But he went on:

Palestine can never be regarded as a country on the same footing as the other Arab countries. You cannot ignore all history and tradition in the matter. You cannot ignore the fact that this is the cradle of two of the great religions of the world. It is a sacred land to the Arabs, but it is also a sacred land to the Jew and the Christian, and the future of Palestine cannot possibly be let to be determined by the temporary impressions and feelings of the Arab majority in the country of the present day." (Peel Report, Chapter II, No. 4, The Mandate, paragraph 48, pp. 40-41)



...based on the assumption made by the Principal Allied Powers as confirmed in the Peel Report, that Palestine was not by any means or by definition an Arab land, like Syria and Iraq and Arabia, it must be concluded that “self-determination” as provided for under Article 22, Paragraph 1, was never intended for the Arabs or non-Jewish inhabitants of Palestine. This further meant that the majority non-Jewish population could not claim that they were the Mandate’s intended beneficiary, a false claim often put forward by Arab advocates, just recently by two Arab judges in the 2004 Advisory Opinion rendered by the International Court of Justice which erroneously found Israel’s security fence built to ward off Arab terrorists from entering the State of Israel to be “illegal”. See, for instance, the separate opinion of Judge Nabil Elaraby of Egypt, now the Secretary-General of the Arab League, who referred to “the people of Palestine” as the subject or beneficiary of Article 22, paragraphs 1 and 4, of the League Covenant, when in point of fact and point of law it was the Jewish People to whom this article applied (see his opinion in International Legal Materials, Volume 43, Number 5 [September 2004], p. 1083). See also the separate opinion of Judge Awn Al-Khasawneh of Jordan – today, after leaving the Court, the Prime Minister of that country – in which he falsely asserted that the principle in Article 22, paragraph 1, concerning “the well-being and development of… peoples not yet able to govern themselves” which formed “a sacred trust of civilization” was meant in fact to apply to the Arab “Palestinians”, as they are called today (op. cit., nos. 8-9, pp. 1076-1077). Naming the Arabs of Palestine as the “people” to whom this article was intended to apply in regard to the Mandate for Palestine, is and has always been an inversion of the legal truth.


...that the Arabs of Palestine too were separately entitled to self-government and self-determination [is]...a complete inversion of the legal framework of the Mandate for Palestine which did not recognize any Arab national and political rights to Palestine and, moreover, was in effect an abrogation of the San Remo Resolution which had allotted all of the land of Palestine without exception for the self-government and self-determination of the Jewish People.

...On the question of which party was to have self-determination in Palestine, the remarks made by Lord Balfour at the Royal Albert Hall, London on July 12, 1920 to celebrate the conferment of the Mandate for Palestine upon Great Britain and the incorporation of the Balfour Declaration in the Treaty of Peace with Turkey, should suffice to answer your question and remove any doubts you have as to who that party was: Here are Balfour’s own words (p. 86 of my book):

… the Great Powers… most especially Great Britain, has freed them, the Arab race, from the tyranny of their brutal conqueror… I hope they will remember it is we who have established the independent Arab sovereignty of the Hedjaz. I hope they will remember that it is we who desire in Mesopotamia… a self-governing, autonomous Arab State, and I hope that, remembering all that, they will not grudge that small notch – for it is no more geographically, whatever it may be historically – that small notch in what are now Arab [populated] territories being given to the people who for all these hundreds of years have been separated from it – but surely have a title to develop on their own lines in the land of their forefathers, which ought to appeal to the sympathy of the Arab people as it, I am convinced, appeals to the great mass of my own Christian fellow-countrymen...We may look forward with a happy gaze to a future in which Palestine will indeed, and in the fullest measure and degree of success, be made a home for the Jewish People (emphasis added).

...[and there are] the explicit instructions given to Sir Mark Sykes by Prime Minister David Lloyd George and, surprisingly enough, with the approval of Lord George Nathaniel Curzon at a meeting held on April 3, 1917 at 10 Downing Street, London. Sykes, who was then Lloyd George’s chief adviser and troubleshooter on the Middle East prior to his untimely demise, was instructed in the following manner before going off to Egypt to become the Chief Political Officer on the staff of the Commander-in-Chief of the British Army based in the country, whose mission was to captue Palestine and Syria from the Ottoman Turks:

Not [to] prejudice the Zionist movement and the possibility of its development under British auspices. The Prime Minister laid stress on the importance if possible, of securing the addition of Palestine to the British area, and suggested that Sir Mark Sykes ought not to enter into any political pledges to the Arabs, and particularly none in regard to Palestine.

According to the Cabinet note of the meeting by Maurice Hankey, the secretary of the War Cabinet, who was present at this meeting, Sir Mark Sykes responded:

The Arabs probably realized that there was no prospect of their [them] being allowed any control over Palestine.


...there can be absolutely no reasonable doubt whatsoever in the mind of any objective observer that Palestine in its entirety was reserved exclusively for the Jewish People represented by the Zionist Organization to establish its future independent state and not at all for Arab self-determination in any part of the country, including Transjordan.

To substantiate the point that Palestine was always treated as a Class “A” Mandate by the Permanent Mandates Commission, I shall quote the words of William Ormsby-Gore, one of the original members of this Commission when it was set up by the League Council on December 1, 1920: “to receive and examine the annual reports of the Mandatories and to advise the Council on all matters relating to the observance of the Mandates, as stipulated in paragraphs 7 and 9 of the Covenant of the League of Nations”. Ormsby-Gore, who was (1936-1938) the Colonial Secretary when the Peel Report was issued and later ennobled as Baron Harlech, described as follows the different Mandatory regimes in an article he wrote entitled “The Mandatory System”:

The three classes of Mandate ‘A’, ‘B’, and ‘C’ are quite clearly differentiated. In the case of the Class ‘A’ Mandates, it is clear that the exercise of powers by the Mandatory are to be regarded as purely temporary, and that the role of the Mandatory is to provide such protection, advice, and assistance as will enable the three countries Mesopotamia, Syria and Palestine to become independent States Members of the League (A History of the Peace Conference of Paris, edited by Harold W.V. Temperley, Oxford University Press, First Published 1924, Reprinted 1969, Vol. VI, Chapter VI, Part IV, The Mandatory System: ‘A’ Mandates [Syria, Palestine, Mesopotamia], paragraph 16, Character of Mandates, p. 521).

...I direct your attention to the statement made by the illustrious Belgian diplomat Pierre Orts, who served on the Permanent Mandates Commission from 1923 to 1940, the last four years as Chairman, and who thus had intimate knowledge of the classification of all the Mandates. Here is what he said at a meeting of the Commission held on August 5, 1937:

For the Mandates Commission, Palestine had never ceased to constitute a separate entity. It was one of those territories which under the terms of the Covenant, might be regarded as “provisionally independent” [this was a direct reference to the fourth paragraph of Article 22 – H.G.]. The country was administered under an “A” Mandate by the United Kingdom, subject to certain conditions and particularly to the condition appearing in Article 5 [of the Mandate]: The Mandatory shall be responsible to see that no Palestine territory shall be… in any way placed under the control of the Government of a foreign Power (The Rise of Israel, Vol. 25, Document 4, p. 176; this quote is reproduced in my book, The Legal Foundation and Borders of Israel under International Law, p. 273).

...you seem to doubt that the aim of the Balfour Declaration and the Mandate for Palestine was the eventual establishment of a Jewish State, since the Balfour Declaration refers to a National Home rather than to a State...a Jewish State was always the intended aim of the Mandate – despite the British sabotage of this aim, beginning with the Cairo Conference of March 1921 and solidified in the Churchill White Paper of June 3, 1922. This evidence emanates from the testimonies of the key personalities as to what the Balfour Declaration meant.

To begin with, when the Balfour Declaration was first presented by Lord Balfour to the Imperial War Cabinet for its final approval on October 31, 1917, he said he foresaw an eventual Jewish State arising in Palestine. His exact words were "an independent Jewish State… was a matter for gradual development in accordance with the ordinary laws of political evolution.”...David Lloyd George, who stated in his book, The Truth about the Peace Treaties (Vol. II, pp. 1137, 1139): “that… if the Jews had meanwhile responded to the opportunity afforded them by the idea of a National Home and had become a definite majority of the inhabitants, then Palestine would thus become a Jewish Commonwealth”. A similar statement was made by General Jan Christiaan Smuts, then a member of the Imperial War Cabinet, who in December 1919 stated that “in generations to come you will see a great Jewish State rising there once more” (Zionist Bulletin, December 10, 1919...There were other statements made by British officials and leaders to the same effect, that the goal of the Balfour Declaration and the establishing of the Jewish National Home in Palestine was a Jewish State. Such statements were made by Lord Robert Cecil (1917), Neville Chamberlain (1918), Herbert Samuel (1919) and Winston Churchill (1920) (Frankenstein, op. cit., pp. 147-148).

Balfour later told Colonel Richard Meinertzhagen, on February 7, 1918, that his personal hope was that “the Jews will make good in Palestine and eventually found a Jewish State. It is up to them now; we have given them their great opportunity”

...Meinertzhagen further reports on a meeting that took place at Balfour’s home on July 22, 1921, at which he was present along with Colonial Secretary Winston Churchill, Chaim Weizmann, Maurice Hankey and Edward Russell, that in a conversation that ensued both Lloyd George and Balfour categorically stated “that by the [Balfour] Declaration they had always meant an eventual Jewish State”, as well as an ultimate Jewish majority in Palestine...That a Jewish State was envisaged by the Balfour Declaration is also clear from the letter dated October 29, 1920 sent by Foreign Secretary Lord Curzon to Lloyd George, in which he stated:

The important thing is that we got the Balfour Declaration – you will remember how hard a fight I made for it – into the Treaty [of Peace with Turkey] at San Remo, and that is the Magna Charta [Magna Carta] of the Zionists.

...Other important evidence that Palestine was to be a Jewish State comes from American sources. On November 20, 1917, a mere eighteen days after the issuance of the Balfour Declaration, Colonel Edward Mandell House, President Wilson’s closest adviser at the time, wrote in his diary for that date that Lloyd George had informed Wilson over dinner, at which Colonel House was also present, together with the Lord Chief Justice, that “Palestine [was] to be given to the Zionists…”...[Wilson] told a delegation from the American Jewish Congress on March 2, 1919:

As to representations touching Palestine, I have before expressed my personal approval of the Declaration of the British Government regarding Palestine. I am moreover persuaded that the Allied Nations with the fullest encouragement of our Government and people are agreed that in Palestine there shall be laid the foundations of a Jewish Commonwealth

...the Report and Recommendations of the Intelligence Section of the American Delegation to the Paris Peace Conference, which was drawn up on January 21, 1919 for the explicit use of the President...stated as follows:

It is right that Palestine should become a Jewish state, if the Jews, being given the full opportunity, make it such. It was the cradle and home [emphasis added] of their vital race, which has made large spiritual contributions to mankind, and is their only land in which they can hope to find a home of their own; they being in this respect unique among significant peoples...



It is clear from President Wilson’s 1919 pronouncement and the Report and Recommendations he earlier received from the Intelligence Section of the American Delegation to the Paris Peace Conference, that “home” and “state” were, for the Americans, interchangeable terms and thus were synonymous....

In light of the foregoing evidence, there is no reason...to doubt the fact that the Balfour Declaration, the San Remo Resolution and the Mandate for Palestine had only one overriding purpose in mind, namely, the re-establishment of a Jewish State in Palestine which naturally embraced the entire territory, as is evident from the fact that the partition of the Land, as illegally took place later, was absolutely prohibited under Article 5 of the Mandate...

Thank you, Adv. Grief.

^

Rights of Jews to the Land of Israel

New book out:

The Jewish People’s Rights to The Land of Israel
by Salomon Benzimra

TABLE OF CONTENTS
INTRODUCTION
THE ORIGIN OF ISRAEL’S LEGAL RIGHTS
THE MANDATE: FROM 1920 TO 1939
ISRAEL: FROM NATION TO STATE

PART ONE
ANCIENT ISRAEL (1200 – 722 BCE)
ANCIENT ISRAEL (722 – 323 BCE)
ANCIENT ISRAEL (323 – 70 CE)
ANCIENT ISRAEL: THE HISTORICAL CONNECTION
THE BIRTH OF MODERN ZIONISM
THE OTTOMAN EMPIRE
THE BALFOUR DECLARATION
WILSON’S “FOURTEEN POINTS”
PARIS PEACE CONFERENCE - 1919
COVENANT OF THE LEAGUE OF NATIONS
SAN REMO CONFERENCE: A LANDMARK
SAN REMO AND INTERNATIONAL LAW
FRANCO-BRITISH BOUNDARY CONVENTION
THE CREATION OF TRANSJORDAN
TRANSJORDAN: LEGAL AND POLITICAL ISSUES
MANDATE FOR PALESTINE: FUNDAMENTALS
THE MANDATE: TERRITORY & SETTLEMENTS
THE MANDATE: FIRST “PARTITION”
THE MANDATE: LEGAL VALIDITY
THE MANDATE: MAIN PROVISIONS
ANGLO-AMERICAN CONVENTION - 1924

PART TWO
BRITISH MANDATE: HAYCRAFT COMMISSION
BRITISH MANDATE: CHURCHILL WHITE PAPER
BRITISH MANDATE: SHAW COMMISSION
BRITISH MANDATE: PASSFIELD WHITE PAPER
BRITISH MANDATE: PEEL COMMISSION
BRITISH MANDATE: MACDONALD WHITE PAPER
BRITISH MANDATE: JEWISH IMMIGRATION
UN PARTITION RESOLUTION 181

CONCLUSION
LANGUAGE AND MYTHS
SOME THOUGHTS ON PEACE

NOTES AND REFERENCES

CANADIANS FOR ISRAEL’S LEGAL RIGHTS
http://www.cilr.org/ Toronto info@cilr.org

^

It's Civilized to Act Within the Framework of the Law

Continuing from this post of mine on the State Department statement relating to Israel's quest for proper legality regarding the Jewish communities in Judea and Samaria, I note this from the WSJ:-

An Israeli official insisted the government is committed to removing settlement houses on privately owned Palestinian land. The official suggested, however, that Israel is reconsidering what it deems private Palestinian land.


The newly commissioned panel was established because members of Mr. Netanyuhu's government say the designation of settlement land as private Palestinian property was politically motivated, the official said.  "We want to make sure that the status of the land is correct," said the official.

There should be nothing wrong with investigating the legality of the status of lands.

There should be nothing wrong in utilizing the framework of eminent domain.  It's being used now in Illinois and California.  The US Supreme Court permitted Columbia University to employ it.

Even more so if the lands in question, as in Migron, it has been claimed, were gifts from the King and if the lands had never been used and, as in some cases, the present "owners" didn't even know they owned the land until someone from Peace Now or Yesh Din came along.

The Jewish people were granted exclusive rights to all state and waste lands (League of Nations Mandate, Article 6) after losing all of TrandJordan and after partition plans were rejected.

This is how civilized nations act - within the framework of the law.

^

Israel Intransigent

No, not at all.

The Pals., though, would like you to see it that way:

Israel announced Sunday it supports the Middle East Quartet's call for direct talks with Palestinians to resume within a month.

In a statement, the Israeli prime minister's office said Israel "welcomes the quartet's call for direct negotiations between the parties without preconditions."

"While Israel has some concerns, it will raise them at the appropriate time," the statement added. "Israel calls on the Palestinian Authority to do the same and to enter into direct negotiations without delay."

Palestinian Authority Prime Minister Mahmoud Abbas has said repeatedly that the Palestinians would not return to negotiations until Israel halts all settlement construction and accepts 1967 border lines as a basis for the return to talks.

"If Israel accepts the quartet offer it means that they stop all settlement activity including natural growth and agree to an agreement based on 1967 borders, because the quartet explained that both sides are obliged to follow the conditions of the roadmap," top Palestinian negotiator Saeb Erakat said Sunday. "We want to hear from them. If they accept these conditions, these are good news. Without accepting them, that is bad news, that is cheating. This government is playing a game of deceit."

Let's be quite clear:

Construction of and residency in communities built by Jews in the territory of the former Mandate of Palestine cannot be considered acts that are either illegal, illegitimate or otherwise impermissable or thought of as "war crimes" and the such. The right of "close settlement by Jews [Art. 6]" on the lands of the Mandate, which encompassed Judea, Samaria and Gaza, was enshired in the League of Nations decision, itself based on a series of decisions and agreements that achieved status of international law between 1915 and 1924.

Moreover, if this framework were to be applied to Israel, would it be acceptable for Israel to expell 1 million Arabs as the Palestinian Authority wishes done to Jews of Judea and Samaria?

^

Points for Perry

I left this comment:

I wonder, could Arab residential locations in Israel, then, be considered "Arab settlements" (and we'll ignore their "illegality" for the moment)? There is no' law' that can be applied in this case. On the one hand, the only element in the Geneva 1949 Convention rules is "forced transferral of population" but up until 1948, when Arabs went to war to thwart the UN recommendation of partition, Jews had lived in Judea and Samaria, for centuries. Of course, Arabs engaged in ethnic cleansing (and that is the real criminal forced "transferral of population" - in the out direction) - in Hebron, Gaza, Jenin, Gush Etzion and even Nablus - during the Mandate years which caused the area to be emptied of its Jewish residents. Why cannot Jews construct villages in the land the League of Nations, in an act of internationally legal legitimacy and right, guaranateed would become the reconstituted Jewish national home, with the promise of "close settlement by Jews on the land", Article 5 of the Mandate?)

at this story:

Rick Perry Breaks With Four Decades Of U.S. Policy, Says Israel Should Build More West Bank Settlements

By Zaid Jilani

Since the 1967 war between Israel and its Arab neighbors, Israelis have slowly populated the West Bank and maintained an expanding network of settlements that today, threaten the viability of a two-state solution.

U.S. policy stretching back to the Johnson administration considers these settlements to be illegal, and has called for their construction to be halted. Yet at an event in New York City this morning Gov. Rick Perry (R-TX) — in a speech attacking President Obama’s Middle East policies — disregarded four decades of U.S. policy and told a reporter that Israel should continue to build settlements because it’s “their land” and “their right”:

REPORTER: Should [Israel] continue building settlements?
PERRY: I think so, it’s their land; it’s their right.

Perry’s position stands far outside maintstream in the United States, where Democratic and Republican administrations have called for the settlement expansion to be halted, in accordance to international law.

and updated here:

He received enthusiastic praise from New York state assemblyman and hardline pro-Israel figure Dov Hikind, who said Perry's speech reminded him of himself.

"You can't be right on everything but wrong on Israel," Hikind said, summing up the mood in the room."We will not support you if you're wrong on Israel."

Here's the full exchange about settlements from the question-and-answer portion of the event.

Q: Can you explain what your policy in a Perry administration would be toward the settlements?

PERRY: From the standpoint of the settlements, those need to be negotiated directly with the state of Israel. If the United States needs to be sitting in and being part of that solution or in those negotiations, certainly we would lend the hand. But at the end of the day those are about the sovereign nation of Israel making the decisions about those lands.

Now the issue of how we have a state of the Palestinian people, that is direct negotiations between Israel and the Palestinian people, and it can't be accomplished in any way.

Q: Should the Israelis be allowed to continue building?

PERRY: I think so.

At that point Perry said something else but it was drowned out by loud applause from the crowd. He did not address the distinction between so called "natural growth" within existing settlement blocs versus building entirely new settlements

Refreshingly clear.

The United States should not adopt a prejudicial position on either the need for, the legitimacy or legality of the Jewish communities in Judea and Samaria but allow the sides to negotiate that issue.

Would the US also interfere in deciding what are Israel true security needs?

How far would America intervene other than urging the sides to negotiate and facilitate that?


^

Israel's Rights as the Nation-State of the Jewish People

Yesterday, I attended the conference entitled 'The Rights of Israel as a Nation-State of the Jewish People in International Diplomacy' co-hosted by the Institute of the World Jewish Congress and the Jerusalem Center for Public Affairs, which examined the historical and legal rights of the Jewish people with the aim of countering the assaults to undermine Israel's legitimacy and to deny the Jewish people's right to self-determination.

The conference launched the book by the same name edited by former Israeli ambassador to Canada Alan Baker, with contributions by Shlomo Avineri, Alan Dershowitz, Ruth Gavison, Martin Gilbert, Dore Gold, Ruth Lapidoth, Nicholas Rostow, and WJC Secretary General Dan Diker.


The book, as a PDF, is here at Scrib.

Or here, as chapters.

I'll bereviewing it soon.

^

"Sinking" The Flotilla - Legally

Will the flotilla be sunk?

Shurat HaDin (SH), the Israeli Legal Center, is implementing several strategies to stop the international flotilla against Israel. One is a civil lawsuit against 14 ships set to participate in this flotilla.  A second action is Shurat HaDin's legal warning to Inmarsat that under U.S. law they will be open to charges of aiding and abetting terrorism if they provide services to these Gaza-bound ships. A third action by SH is their letter to maritime insurance companies informing them that by insuring sea vessels used by terrorists their company will be liable for any future attacks carried out by those terrorists.

What about those planes set to land...wait!, where are they to land in Gaza?

^

Is Netanyahu Becoming Illegitimate?

Ted Belman at Israpundit notes:

PM Netanyahu issued the following statement as payment or part payment for the exercise of the US veto.

“Israel deeply appreciates the decision by President [Barack] Obama to veto the Security Council resolution today. Israel remains committed to pursuing comprehensive peace with all our neighbors, including the Palestinians. We seek a solution that will reconcile the Palestinians’ legitimate aspiration for statehood with Israel’s need for security and recognition.”

No longer is he claiming defensible borders, a united Jerusalem or the settlement blocks. Not only is he not asserting our legal rights, he is also not asserting our historical rights. The fact that he has maintained a defacto freeze and that the Cabinet Committee voted unanimously to not extend Israeli law to the communities in Judea and Samaria, says volumes.

If you think that's a misquote, here's the source Ted doesn't provide.

Menachem Begin, in signing the The Framework for Peace in the Middle East

agreement of the Camp David Accords, opened the way for the use of that term.  In A c., it reads:

The solution from the negotiations must also recognize the legitimate right of the Palestinian peoples and their just requirements

I recall that he once responded to criticism by saying: 'for sure they have legitimate rights but creating a state is not one of them'.  He pointed out that the plural, "peoples", indicate the Arabs as individuals, as persons, but not as a people in the national sense.

He must assuredly was opposed to statehood.

In the book I edited, you can find these words of Begin written in August 1980:

...The Egyptian delegate made a speech at the United Nations in which he said, inter alia:


...iii) "The Palestinian people should exercise, without any external interference, the inalienable and fundamental right to self-determination, including the right to establish an independent state on the West Bank and Gaza.

Thus, the Egyptian delegate to the United Nations.

However, not one word about self-determination (which, of course, means a state), or about an independent (Palestinian) state appears in any one of the pages, paragraphs, sections, sub-sections etc. of the Camp David agreement. Dr. Ghali, speaking of behalf of Egypt, committed almost incomprehensible deviations from, and total contradictions, to, the Camp David accord which you and I signed and which our friend President Carter signed as witness, and which all of us are obligated to carry out in good faith in accordance with the old golden rule: Pacta sunt servanda. It is not Israel, Mr. President, which commits a breach of our peace treaty of the other, not yet fulfilled, part of the Camp David agreement; spokesmen of Egypt, of various levels, do...


...Jerusalem is and will be one, under Israel's sovereignty, its indivisible capital in which Jews and Arabs will dwell together in peace and in human dignity. Whosoever declares that the sovereign acts of our democratic Parliament are null and void makes a declaration which is null and void.  The same applies to our settlements in Judea, Samaria, the Gaza District and the Golan Heights. They are legal and legitimate and they are an integral part of our national security. None of them will ever be removed.

It would seem that Prime Minister Netanyahu needs to read the book, "Peace in the Making".

^

We're Back to the "Illegitimate"/"Illegal" Debate

Here's the proposed text of a UN Security Council resolution that may have been promoted by the US:

Source

Note the use of "legitimacy" vs. "legal and "illegal" vs. "illegitimate".
You can take a "who cares?" approach.  Or assume the US is wishy-washy.

But then, there's Jennifer Rubin who terms this

an unprecedented "compromise" that would entail a sharp rebuke of our democratic ally

and continues:

...[it is a] remarkable deviation from past administrations' treatment of Israel

and quotes a possible Republican presidential contender, Tim Pawlenty:

"The Obama administration has shown an astonishing unwillingness to stand by Israel at the United Nations, an organization with a long history of blaming Israel for just about every problem in the Middle East. It's time for our UN ambassador to finally show some leadership, draw a line in the sand, and defend our historic ally. Global stability depends more than ever on a respected America that is loyal to our allies and realistic about the malice of our adversaries."

Perhaps recognizing that the Administration is really go off the deep end on this issue, Secretary of State Hillary Clinton tried to back-pedal a bit, saying

...UN Security Council resolutions are "not the right vehicle" for forging ahead towards a two-state solution to the Israeli-Palestinian conflict.

"Our focus is on doing what is best to advance negotiations between the parties that will lead to a two-state solution," she told reporters after a closed-door briefing with senators covering unrest throughout the Middle East...

That report noted that her comments came after Palestinian foreign minister Riyad al-Maliki said the Palestinians had refused a compromise offered by Washington to withdraw a UN resolution condemning Jewish settlements.

But the terminology involved has bothered me in the past. As I noted in September 2009 and even earlier, is this a question of:

if illegitimate is worse than illegal

The Jewish residential location in Judea and Samaria are quite legal and even more so legitimate. They were made so by the Jewish people's historical, religious and cultural reality in its national homeland for over 3000 years, and that was recognized by the civilized world for centuries prior to the League of Nations recognition of our right as Jews to reconstitute in that land area our National Home.

Returning to the area in 1967, we have the right of reversion, based on the Arab rejection of territorial compromise in 1947 and its constant warfare and terror campaign ever since.

I am sure that the Obama Administration will eventually realize itself that its legitimacy among future voters in an election will become an issue which may yet save the immediate situation.

^

The Law and the Legality

See the discussion going on here in the comments section.

^

On Jordan, The Kingdom Of

An opinion:

...the Hashemites should never have become the so-called “sovereign” of Jordan. That was a dirty British trick initiated by Churchill and the Colonial Office he headed in 1921-1922, that was absolutely prohibited under the very terms of the article upon which this trick was based – i.e., under Article 25 of the Mandate for Palestine, as well as under Article 5; both articles forbade a permanent territorial partition of the country as well as granting sovereignty to a foreign Power over an integral part of Palestine.

^

Legally Held Disputed Territories

That's the term for Judea and Samaria.

That's what Eli Hertz writes.

Excerpt:

Neither the 1993 "Oslo I" (the Declaration of Principles) nor the 1995 Oslo II (Interim Agreement) stipulate that the construction of settlements, neighborhoods, houses, roads or other building projects cease - pending a peacefully negotiated final settlement between the parties...Calls for a freeze on Jewish construction in the Territories - while Arab construction continues unfettered, are unfair - all the more so, in light of the fact that Jews were forcibly expelled from these Territories in 1948.


Legalities aside, before 1967 there were no Jewish settlements in the West Bank and for the first ten years of so-called "occupation" there were almost no Jewish settlers in the West Bank. And still there was no peace with the Palestinian Arabs. The notion that Jewish communities pose an obstacle to peace is a red herring...

Because the Arabs were clearly the aggressors, nowhere in UN Security Council Resolutions 242 or 338 - the cornerstones of a peace settlement - is Israel branded as an invader or occupier of the Territories and there is no call for Israel to withdraw from all the Territories...
Professor, Judge Schwebel, a former president of the International Court of Justice, wrote in What Weight to Conquest:

"Where the prior holder of territory [Jordan] had seized that territory unlawfully; the state which subsequently takes that territory in the lawful exercise of self-defense [Israel] has against that prior holder [a] better title.



"As between Israel, acting defensively in 1948 and 1967, on the one hand, and her Arab neighbors, acting aggressively, in 1948 and 1967, on the other, Israel has the better title in the territory of what was Palestine, including the whole of Jerusalem."

 Is that clear?

Shmuel Katz Retro

For today:

The Monstrous Charge of Illegality

The UN, the U.S., the EU, Britain, The International Court of Justice at The Hague – these governments and entities all claim that Israel’s “settlements” are illegal. They repeat the false charge so often it has become gospel.

When this charge was in swaddling clothes, Shmuel recognized its importance and the urgent need to combat it. Over 30 years ago, in 1978, he began to write about this “monstrous charge.” The smear was started by State Department lawyers under the Carter administration. They were looking for legal ammunition to challenge Israel’s hold on the territories it captured in the 1967 war.

Read it all.

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Yes? No. (All You Need for the "Illegality" Claim)

It all seems so simple for Roula Khalaf who writes in a piece entitled "Trust in short supply at Middle East talks" at the Financial Times that

There was an astonishing report out of Jerusalem last week. Israel, it said, was growing increasingly frustrated with the US.

Israel unhappy? But had Washington not just offered the Jewish state a generous security package, including subsidised fighter jets, to buy a 90-day freeze on the expansion of Jewish settlements on occupied Palestinian land? And are the settlements not illegal under international law in any case and the moratorium a demand the Obama administration has been making for two years?

The answer to those questions is yes.

No, they are not illegal.

Jews living in their homeland, in territory originally allocated to them for their reconstituted Jewish national home, land to be used for "close settlement", in the area from which terror acts and from, which aggression was launched against them, cannot be considered illegal.

Some articles:

Howard Grief

Eugene Rostow.

Nicholas Rostow.

Talia Einhorn.

Michael Zevulon.

Dan Diker.

Victor Sharpe.

Anglo-American Convention aspect.

One summary.

CAMERA's summary.

Mitchel Bard's summary.

Eli Hertz (short version) and the long version.

David Phillips.

There's even a university syllabus.

State of Israel.

And a site.

And my two cents: one and two.

And there's more.

Adam Baker.

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