THE FACTS ABOUT ISRAELI SOVEREIGNTY IN JUDEA AND SAMARIA
by Yechiel M. Leiter, June 11, 2020
Critics of Israel's anticipated sovereignty move claim that it contravenes international law and will spark violence, destabilize the region and cost Israel European and Democratic support. A calmer and more accurate assessment indicates otherwise.
Public castigations of Prime Minister Benjamin Netanyahu by American Jewish leaders of the "anyone-but-Bibi" crowd are nothing new, but it appears that the promise of imminent "annexation" has thrown them into an unprecedented frenzy. There has been a cascade of articles issuing dire warnings about the consequences should Israel's elected government follow through on Netanyahu's campaign promise to apply Israeli law in parts of Judea and Samaria.
Criticisms of the anticipated decision come in different forms, and when taken in the aggregate, paint a very bleak picture: the move contravenes international law; the Palestinians will erupt in violence; it will destabilize Jordan and the entire region; Israel will lose the support of Europe; the Democrats will abandon Israel; Netanyahu doesn't have the mandate to act unilaterally.
A calmer, and most importantly more accurate assessment of the facts is in order.
For language to be meaningful, terminology must be precise. According to international law, "occupied territory" is a term that refers to an area that was sovereign in one state and occupied by another state; applying state sovereignty in order to make the occupation permanent would be "annexation." This is decidedly not the case with regard to Israel's presence in Judea and Samaria and hence these terms are irrelevant.
The Jewish people are the only people in fact who have a recognized legal right over Judea and Samaria. This legal affirmation was enshrined in the mandate drafted and approved by 51 principle members of the League of Nations guaranteeing the "right of Jewish people to reconstitute their national home" in the Land of Israel (1922), thereby recognizing a preexisting historical right. This was ratified by the United Nations upon its establishment and that section of the U.N. Charter has never been altered by any state. Judea and Samaria have never been under the sovereignty of any other country than the State of Israel. Jordan's invasion of the territory in 1948 and its subsequent attempt to annex them in 1950 was opposed internationally with the exception of Britain, Iraq and Pakistan.
The internationally recognized doctrine of boundaries in the post-colonial era (Uti Possidetis Juris) states that the boundaries of a new state are identical to those of the administrative entity that preceded it. Because the administrative entity that preceded the State of Israel was the British Mandate, in whose hands the League of Nations placed the responsibility of fulfilling the mission of Jewish statehood, the recognized boundaries of the State of Israel are those inherited from the British Mandate.
Even according to those who considered Israel a "conqueror" after the Six-Day War, following the 1994 peace agreement with Jordan that can no longer be argued as under international law the peace agreement obviated the "occupation."
As for the prohibition against the forcible transfer of civilians to territory of an occupied state under the Fourth Geneva Convention, so often injected to the discussion by the Palestinians, this too has no relevance. It was never intended to relate to circumstances of voluntary Jewish settlement on legitimately acquired land, which did not belong to a previous lawful sovereign and which was designated as part of the Jewish state under the League of Nations Mandate. (See David Wurmser's detailed article[1] on the subject, "Israel, the EU, and International Law," National Review, May 26, 2020, and[2] "The Pompeo Doctrine: Regarding the Legality of Jewish Settlements in Judea and Samaria," Nov. 18, 2019).
Since the establishment of the State of Israel, the boundaries of the scope of Israeli law have been expanded three times.
The first time that legal sovereignty was expanded over territory immediately followed the establishment of the state. During the War of Independence significant territories were captured that were not originally included in the partition plan, including Acre, Nahariya, Ma'alot, Nazareth, Beersheva, Ramla, Lod, Ashdod, Ashkelon and other towns; the country grew from 16,000 to 20,250 square kilometers. This was made possible because the partition plan proposed by the U.N. Security Council was affirmed by the Jewish settlement in Israel, but was rejected by the Arabs, who responded with a declaration of war, and therefore had no validity.
The second time that Israeli law was extended followed the Six-Day War when large areas that were previously held by Arab countries were liberated: the eastern part of Jerusalem, including the Old City, Judea and Samaria, the Golan Heights, the Gaza Strip and the Sinai Peninsula. The only place though where the nascent State of Israel did not hesitate to extend its laws at the time was Jerusalem.
About two weeks after the end of the war, on June 27, 1967, the "Rules of Procedure and Law, 5708 — 1948″ was amended, and the Knesset added Article 11B, which states: "The law, jurisdiction and administration of the state will apply in every territory of the Land of Israel that the government has so formally declared." With this amendment, the Knesset stated in effect that it authorizes the government to apply Israeli law to every part of the Land of Israel, leaving it with the discretion to determine the extent of the area to which the law will be applied and the timing of its application. The further application of Israeli law at present in Judea and Samaria simply follows this precedent.
The third time that Israeli law was applied to territories in the Land of Israel was in 1981, when the Knesset applied the "law, jurisdiction and administration" to the Golan Heights through special legislation. Since the Knesset had already authorized the government to apply Israeli law to any area of "Eretz Yisrael," it was possible to settle the issue for the Golan Heights in a government decision, as was done for eastern Jerusalem in June 1967. The term "Eretz Israel" though could theoretically be interpreted as not referring to the original territory that appeared in the mandate approved by the League of Nations as an area designated for the establishment of the National Home for the Jewish People—which included the Golan Heights—but to the British Mandate prior to the establishment of the state, which did not include the Golan. Hence, contrary to the case of Jerusalem, new and specific Knesset legislation was preferred.
The Sunni Arabs of the region and Jordan
Much consternation has been expressed regarding the possible reaction of countries like Egypt, Saudi Arabia and the Gulf states to the extension of Israeli law in Judea and Samaria. The U.S. "Peace to Prosperity" plan though was launched in Bahrain with those very states in attendance. To be sure, their spokesmen have voiced their rote opposition to the extension of Israeli law, but the background music is clear, "say what we must, we couldn't care less."
For decades, the claim that "the occupation of '67 is the problem" took root. In other words, that Israeli control over the territories of Judea and Samaria and the Gaza Strip is the main factor fueling the Israeli-Arab conflict and is the source of regional instability and terrorism—in and outside the Middle East. Therefore, the solution to all the problems of the region is the establishment of an independent Palestinian state within the 1967 borders. This claim was the basis of the Oslo Accords and is also the main reason for their failure: The problem of the Palestinians and the Arab world with the State of Israel is not "the occupation of '67."
Those who look honestly at the realities of the Middle East, and the so-called "Arab Spring," cannot help but notice that everything that has taken place in recent years—the coups in the Arab world and the civil wars that have swept the region since December 2010, in Tunis, Egypt, Yemen, Iraq, Syria and Libya; the emergence of Islamic State and its metastasis; the appearance of international Islamic terrorism in its various components; and Iran's pursuit of hegemony in the Muslim world, accompanied by its transformation into the main world exporter of terror and bloodshed—is not in any way related to the Israeli-Palestinian conflict and would have happened even if a Palestinian state had already been established.
Cooperation with Israel is today an existential matter for Saudi Arabia and Egypt; the Palestinian issue doesn't come close. The notion of Palestinian centrality is a relic of the past.
With regard to Jordan, Israeli sovereignty will serve to strengthen the Hashemite kingdom, not destabilize it. King Abdullah II knows this all too well and sources close to him have passed these messages to Israel. The danger of Palestinian irredentism is already palpable for the Jordanians, but it will grow exponentially if a Palestinian state actually borders Jordan; when Israeli sovereignty serves as a buffer that partitions between the Palestinian Authority and Jordan that danger is significantly reduced.
King Abdullah understandably opposes Israeli sovereignty publicly, because more than half of the Jordanian population are Palestinians (most of whom, by the way, transferred to Jordan during the Jordanian occupation of 1947-1967), and like his father he fears an uprising. The king's stature has been particularly compromised of late because of popular protests against him (largely by the kingdom's Bedouin East Bankers, not by better established Palestinians) in light of the difficult economic situation in the country, which has deepened in the wake of the COVID-19 crisis. Similar threats were heard from Jordan following President Trump's U.S. embassy move to Jerusalem and recognizing it as the capital of Israel. In practice, nothing happened.
Jordan is dependent on U.S. economic and security assistance, and on Israel's water resources and security cooperation. Moreover, Jordan knows that the application of Israeli law in the Jordan Valley will allow for accelerated economic development of the region, of which it is sorely in need. Unofficial estimates put the country's unemployment rate at 30 percent and extreme poverty levels at 15 percent to 20 percent. These figures don't include the hundreds of thousands of Syrian refugees who have flooded the country over the past years of the Syrian civil war, putting a huge drain on Jordan's economy. With a destabilized Iraq and a war-torn Syria on its eastern and northern borders, the very last thing Jordan needs is a Palestinian state on its western border.
Europe and the Democratic Party
As Muslim influence grows unabated on the European continent one is forced to wonder if there is anything at all that Israel can do, or not do, to make the European Union happy. But even before the influence of Islam on European politics, Israel is a problem for the progressives of Europe. Their post-Holocaust world is also a post-modern one, where meta-narratives and particularistic national identities are believed to be the root causes of the evil perpetrated by governments, and there is no greater meta-narrative than Zionism. But a clear reading of the European map shows dramatic changes in the offing, slow but sure. The COVID-19 crisis has redrawn national boundaries and reset economies in such a way as to turn Brexit into a salient sign of things to come. A less monolithic Europe is a good thing, especially for Israel, and under Netanyahu many European countries, particularly in Eastern Europe but not exclusively, have set themselves apart from the anti-Israel charade in Brussels.
The European Union has aided and abetted Palestinian violations of the agreements they've already signed. In 2009 the prime minister of the Palestinian Authority at the time, Salam Fayyad, embarked on a program, the Fayyad Plan, to finance incursions into lands in Area C (under full Israeli civilian and military authority as per the Oslo Accords) in clear violation of the Oslo Accords that prohibit Palestinian expansion into the territory without Israeli consent (The Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip, Annex III — Protocol Concerning Civil Affairs, Article IV). This strategic plan for Palestinian takeover of the territories under Israeli control is funded—in the tens of millions of euros—by the European Union and various member states. Instead of investing in the establishment of industrial, employment and agricultural areas, and instead of developing the Palestinian economy and improving the lives of the Palestinians, and most importantly instead of honoring signed agreements, the P.A., with E.U. backing, chooses to allocate its resources to the political rather than to the humane.
It is Israel's timidity that has played into the hands of Europe's pro-Palestinian agenda and it is Israel's assertiveness that will put a stop to it.
Turning to the United States, harsh warnings against the anticipated Israeli move have been emanating[3] from the Democratic Majority for Israel and foreign policy aides to Joe Biden. To be sure, the Democratic Party of today has a problem with Israel, but that has nothing to do with "annexation." The rise of Bernie Sanders and the prominence of the "squad" preceded Netanyahu's election promises, and the BDS elements in the party were active long before there was Trump peace plan.
The advent of a Biden presidency would actually be all the more reason for Israel to move in securing its interests, with confidence and without equivocation. Biden served in an administration which aimed to put "daylight" between the United States and Israel, which gave billions to the mullahs of Iran who then funded Hezbollah and Hamas terrorism, and whose parting shot was not to exercise its veto with regard to U.N. Security Council Resolution 2334, which declared Jews in Judea illegal. What Biden needs to do should he be elected is put daylight between himself and his Democratic predecessor's treatment of Israel. That would be a more fitting message for American Jews to broadcast on the op-ed pages of The New York Times. Unless of course the progressive agenda of the new Democratic Party is more important to them than Israel. As far as Israelis are concerned, while the Democratic Majority for Israel is important, the democratic majority in Israel is more important.
The Israeli electorate
In the last three electoral rounds in Israel, the militarily-adorned Blue and White Party did not advocate for territorial concessions or restarting negotiations with P.A. leader Mahmoud Abbas. On the contrary, their campaign tried to outflank Netanyahu and the Likud, standing strong opposite P.A. terror-financing, political warfare, incitement and rank anti-Semitism. Why? Because they understood that is where the electorate stands. And in the last round, when Netanyahu was the most unambiguous on the issue of sovereignty in Judea and Samaria their position was not very different. It is probable that not all Blue and White MKs will vote in favor when the bill reaches the Knesset, but their number will easily be balanced by MKs who have not joined the Netanyahu coalition for personal and political reasons.
This then is an expression of Israel's democracy at work, the will of the people in action, and not a personal whim of Netanyahu. This simple fact seems to have escaped the critics of extending Israeli civil law to parts of Judea and Samaria. Otherwise, they would ask themselves why the issue is so important to a solid majority of the very people who will have to contend with the doomsday scenarios they portend. Assuming that they are not arrogant enough to think that they know better than Israelis themselves, their forecasts are either wrong or well worth the trouble as far as most Israelis are concerned.
So why do the majority of Israelis favor extension of Israeli law over the Jordan Valley and the areas of Jewish settlement in what has been designated by the Oslo Accords as Area C of Judea and Samaria?
Repeated territorial withdrawals and consecutive peace plans that call for the same have failed, miserably. Every Israeli family with a child in the Israel Defense Forces knows exactly what type of unpleasantries they are being prepared for, and the realization that much of it is the result of "sacrifices for peace" makes for an increased level of circumspection when it comes to promises of peace.
But there's more, and it runs to the very basic core of Zionism. One hundred years after the nations of the world recognized the religious, historical, and legal rights of the Jewish people to the Land of Israel at the international San Remo Conference, the State of Israel now has the opportunity to complete the realization of this right by applying Israeli law to areas, albeit limited, of Judea and Samaria. It is an opportunity to be grasped.
Ever since the 1967 Six-Day War in which the IDF defended the vulnerable Israeli home front and liberated Judea, Samaria and the Jordan Valley, the State of Israel has spoken with two voices. One voice consistently claims that the country has historical, legal and moral rights to the land, recognized under international law, yet it refrains from applying Israeli law as allowed for by the Knesset law of June 1967. On the one hand, successive Israeli governments allowed for the establishment of a successful settlement enterprise in the area that is now home to nearly half a million Israelis, but on the other hand it has refused to normalize their lives by making them equal to all other citizens of the state. And while all Israeli leaders make it clear that Israel's eastern border must remain the Jordan River, it is repeated with the same frequency that Israel is prepared to negotiate over these very same areas.
This gap between the "declarative" and the "applied," along with Israel's hesitancy on the subject, has ultimately served to diminish Israel's legitimate claims both regionally and in the wider international context. The withdrawals and promise of future potential withdrawals have not enhanced Israel's standing. On the contrary; Israel's anemic position has led to an unabashedly violent Palestinian campaign against the State of Israel and to the bolstering of Palestinian demands. The absence of application of Israeli law has not kept things frozen but has resulted in a long list of painful "cash" concessions paid. The quality of life for everyone in the area has been harmed. There is an augmented and organized Palestinian effort to build illegally and occupy extensive areas in contravention of signed agreements. And there has been considerable environmental, ecological and archeological damage to the area, in the absence of governance and the lack of long-term planning.
Fifty-three years after the Jewish people returned to their historic homeland, Israelis understand that it is time for normal Israeli law and order to govern daily life in the areas of Judea and Samaria, but limited exclusively to where Jews already live, and where the vast majority of Palestinians do not. The autonomous Palestinian areas will remain exactly as they are now.
Israelis sense that the government of Israel, a government of national unity, is faced with a historic opportunity as the Trump administration is the most pro-Israel U.S. government since the advent of modern Zionism. After decades of unfulfilled American promises, the administration moved the U.S. Embassy to Jerusalem, recognizing the ancient city as the capital of Israel; recognized Israeli sovereignty over the Golan Heights; and curtailed all funding to UNRWA, the U.N. agency that perpetuates rather than attends to Palestinian grievances. In November 2019, Secretary of State Mike Pompeo declared that the United States recognizes the Jewish people's historical, religious and cultural rights to Judea and Samaria and the legality of Jewish settlement there; and in January 2020, with President Donald Trump's release of the "Peace to Prosperity" plan, the United States announced that it also supports the application of Israeli law to those territories and the return of the Jewish people to the places where "their spiritual, religious and political image was shaped, where they established their national independence, where the particular and universal cultural identities were shaped and from where the book of books was bequeathed to the whole world" (The Declaration of Independence).
Fear of Palestinian reaction
When the Palestinians have turned to terrorism (the leadership has never completely turned away from it) they needed no excuses. Nevertheless, the P.A.'s repeated attempt to turn out the masses to violent demonstrations over the past years have failed. The majority of the Palestinians in Judea and Samaria are not oblivious to the realities surrounding them. Hundreds of thousands work in good paying jobs in Israeli cities and towns (salaries are on average 200 percent higher than those paid in P.A.-controlled areas) while Gazans live with over 50 percent unemployment under an authoritarian, Iran-backed Hamas regime. Lebanon is in financial collapse and social chaos, over half a million Syrians have been killed in the civil war, with millions turned into refugees, and in Jordan and Egypt autocracy and poverty go hand in hand. In light of these realities it matters little to them what the legal status of Bet El's residents is.
From my front porch in the heart of Samaria I can see the large-scale Palestinian incursion into Area C, in keeping with the aforementioned E.U.-backed Fayyad Plan. What's particularly interesting though is the reason the Palestinians provide—off-camera—for moving into the area. While their politically motivated sponsors see it as a barrier to Jewish settlement, the rank and file admit that they prefer to be in Area C, as close to the Jewish communities as possible, because it increases the chances of them being incorporated into Israel!
These are not just theoretical admissions. All one has to do is travel north of Jerusalem on the road to Ma'ale Adumim to witness the many thousands of illegally built homes of Palestinians who moved from the Ramallah area to live in close proximity to Jerusalem where they believe they will end up under Israeli sovereignty. So much for the brutal "occupation."
Will the Palestinian leadership use the extension of Israeli law under the Trump plan to ignite terror organizations such as the PLO's Tanzim? Possibly, although they have more to lose today than ever. But Palestinian terrorism has never been a reason for Israel to surrender its national interests and there is no reason to start now. There is no greater victory for terrorism than policy changes induced by the very threat of terrorism. And there is no greater victory over terrorism than the fearless implementation of policy that is in the national interest, historically recognized, morally just and legally sanctioned.
Footnotes
[1] https://www.nationalreview.com/2020/05/european-union-israel-eu-presents-cynical-political-calculations-as-rule-of-law/
[2] https://www.shiloh.org.il/publications
[3] https://www.jta.org/2020/04/13/politics/pro-israel-pac-warns-israeli-leaders-that-west-bank-annexation-would-damage-us-israel-alliance
Yechiel M. Leiter, Ph.D., is a scholar at the Kohelet Policy Forum and heads the international department of the Shiloh Forum. He has served in a number of government positions, and as an adviser to Benjamin Netanyahu and Ariel Sharon. His book, "John Locke's Political Theory and the Hebrew Bible" was recently published by Cambridge University Press.
This article was published by Jewish News Syndicate (JNS)
and is archived at
https://www.jns.org/opinion/israeli-sovereignty-in-judea-and-samaria-the-facts/
It is archived at Think-Israel at
http://www.think-israel.org/leiter.israelisovereignty.html
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