by Denis MacEoin, Part I, June 30, 2020; Part II, July 1, 2020

Part I

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The rejection of President Donald Trump's Middle East peace plan by the UN Human Rights Council and others ignores the reality that it is one of the most balanced documents drawn up in favour of peace and the creation of a viable State of Palestine in the West Bank and Gaza. Pictured: Trump announces his peace plan in the White House in Washington, DC on January 28, 2020. (Photo by Mandel Ngan/AFP via Getty Images)

In general, taking territory from another country is treated under international law as illegal. Much of our sense that such illegality is as much morally wrong as it is legally prohibited comes from historical realities in modern history. The Nazi German[1] takeovers of numerous countries across Europe between 1938 and 1945, together with the brutality with which they were carried out, stand even today as notorious examples of unacceptable behaviour in an attempt to dominate other peoples without the least pretence of legality of purpose or practice. More recently, the Russian Federation's 2014 invasion of Crimea[2] has caused unnecessary conflict with Ukraine and damaged Russia's own international reputation.

Article 2 of the first chapter[3] of the United Nations Charter declares:

"All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations."

This was formulated in 1945, in a very understandable response to the aggressions by Nazi Germany. It remains a valid ruling on the dangers posed by powerful nations should they too choose to use force to take over neighbouring territories. Even so, Article 2 was contravened by China in 1959 when it overran[4] Tibet; by Turkey in 1974 when it invaded[5] northern Cyprus, and is constantly contravened by Iran -- with the evident complicity of most of the members of the UN -- in its expansions into Iraq, Syria, Yemen ad Lebanon, as well as its 41-year-long threats to obliterate a fellow UN member state, Israel.

It is not surprising, therefore, that the UN Human Rights Council (UNHRC), with its existing and locked-in bias against Israel,[6] should condemn Israel[7] for its plan to extend Israeli law to disputed lands, in line with the US peace plan revealed in 2020. The rejection of the US plan[8] by the UNHRC and others ignores the reality that it is one of the most balanced documents drawn up in favour of peace and the creation of a viable State of Palestine in the West Bank and Gaza.

Plans designed to bring about peace between the state of Israel and the Palestinians have been multiple, yet none has succeeded -- in all instances because of Palestinian rejectionism. The worst case was President Clinton's offer[9] to the head of the PLO, Yasser Arafat, that would have required the Israelis to hand over about 90% of the lands to help create a State of Palestine. Arafat seemed to agree, then walked away and, from 2000-2005, waged against the people of Israel a campaign of terrorism known as the second intifada.

Peace plans and treaties only work when both sides sincerely want to make them do so, and then can require one or more generations of young people who learn the benefits of an end to violence. Sadly, that is still a remote hope. Today's Palestinian children[10] are taught to hate Jews and glorify -- and handsomely profit from -- violence against them.

There is every reason not to feel hopeful about yet another plan for peace. Even if the Palestinian Authority in the West Bank could be persuaded to act in its own self-interest (and there is little sign of that), the intransigent Islamist terror movements in Gaza -- Hamas and Islamic Jihad -- would most likely still not be brought around in the manner advocated in the plan as the only way to improve the lives of the Palestinians living there.

Nevertheless, we need to take one step at a time. Progress is held back by opposition to the proposed Israeli move. The EU,[11] plus the chief of the United Nations,[12] a multitude of Arab states,[13] the international Organisation of Islamic Cooperation,[14] some countries in Europe,[15] and numerous countries historically unfriendly to Israel have, not surprisingly, condemned the move.

Possibly, once the move takes place, and Israeli sovereignty is extended into parts of Judaea and Samaria and the Jordan Valley, the Palestinians might respond with violence. Fifty-eight per cent of Israelis believe[16] that the move could lead to a third intifada. The Israel Defence Force (IDF) is already preparing for action in that eventuality.

But is that inevitable? Most of the arguments concerning international law are based on a flimsy understanding of how and why Israel was brought into existence within international law, not to mention why Palestinian rejection has, for more than seventy years, been conducted outside that law. Moreover, in a clearer understanding, Israel's planned move appears to be legal[17].

The Israel-Palestinian conflict is unique for several reasons, and to proceed by citing legislation that applies to very different countries and historical situations pretty well guarantees discrimination against the state of Israel -- a level of discrimination from which Israel has suffered from since the day of its birth.

Let us take this in stages. Why did the idea of a Jewish state take hold legally in the early twentieth century? The First World War had ended with the defeat of Germany, but it was the overthrow of the vast Ottoman Empire that prompted the League of Nations to rescue their former Ottoman colonies from chaos and anarchy by creating the basis for nation states across the Middle East: Iraq, Syria, Lebanon, and Palestine (considered as the modern Jewish homeland). There had never been anything resembling an Arab or Islamic state known as "Palestine". The name came[18] from the ancient Romans' Latin version of the land for the Philistines and had nothing to do with Arabs or Muslims. At the time, the Roman Emperor Hadrian[19] was trying to make it seem as if land actually named Judea was purely Roman and had nothing to do with Jews. The use of the word in Britain's 1922 Mandate for Palestine was simply based on the classical learning of the British learned and ruling classes.

Despite this, it is common today to find references to Palestine as a mainly Muslim Arab state that was supposedly "stolen" by Jews, or promised but not given to those people who describe themselves as Palestinians. That is an immense misconception, albeit one that seems to influence political and legal thinking internationally, especially among people who would like to believe it.

There are two chief inspirations for this mode of thinking. The first is Palestinian Arab nationalism, whose adherents portray Palestine as a long-term basis for loyalty from all the Arabs once living under the original Mandate territory or those currently restricted to Gaza and the West Bank. A state of Palestine is thought assured under the rights given to so many other people -- from the Irish to all other post-colonial nations achieved through the end of empires. But that argument does not validate the fantasy[20] that any state of Palestine ever existed or that the Palestinian Arabs are the indigenous inhabitants[21] of Israel, Jordan, and the would-be state of Palestine.

In fact, Palestinian nationalism as a political movement only started around 1920[22] and was formulated in the form of the Palestine Liberation Organization (PLO) in 1964.

As the PLO leader Zuheir Mohsen openly admitted[23] in the Dutch newspaper Trouw in 1977:

"The Palestinian people does not exist. The creation of a Palestinian state is only a means for continuing our struggle against the state of Israel for our Arab unity. In reality today there is no difference between Jordanians, Palestinians, Syrians and Lebanese. Only for political and tactical reasons do we speak today about the existence of a Palestinian people, since Arab national interests demand that we posit the existence of a distinct "Palestinian people" to oppose Zionism.

"For tactical reasons, Jordan, which is a sovereign state with defined borders, cannot raise claims to Haifa and Jaffa, while as a Palestinian, I can undoubtedly demand Haifa, Jaffa, Beer-Sheva and Jerusalem. However, the moment we reclaim our right to all of Palestine, we will not wait even a minute to unite Palestine and Jordan."

When international bodies legitimize Palestinian demands on the basis of such nationalism, they ignore the artificiality of the concept. To add to this is the manufactured and long perpetuated myth[24] of the Palestinian refugees.

Finally, we must examine the very real clash between today's international law and the Islamic equivalent. We shall turn to these in Part Two.

Part II

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However many times the Palestinian Arabs have been offered a state, they have chosen to turn it down, rejecting generous peace offers. They have preferred to use terrorism and three wars launched from Gaza in pursuit of their fantasy of destroying Israel. Pictured: Palestinian members of the Fatah faction march in Al-Ain, near Nablus, to protest Israel's annexation plans. (Photo by Jaffar Ashtiyeh/AFP via Getty Images)

In part one,[25] we identified several ways in which international bodies, states, and individuals interpret the US-Israeli plan for Israel to extend Israeli law in the ancient Jewish homeland of Judaea and Samaria. There is widespread, and misguided, agreement that such a move would be illegal under international law, which regards occupation and "annexation of territory" in a negative sense.

However, as we have seen, much of this interpretation is based on confusion about the history of the region, the origins of the state of Israel, and the ongoing Palestinian rejection of a state for their own people. It is also a contradiction between Western-inspired international law and earlier Islamic law.

Let us start with a look at the original 1922 League of Nations Mandate for Palestine,[26] a territory designed to be administered by Great Britain until it could emerge as an independent state. Even a brief glance at a map of the territory[27] shows that the Mandate made the whole of Palestine, including Gaza and what is now the West Bank with Judea and Samaria, the region designated for the future Jewish homeland. Writing in Israel Hayom[28] recently, Dr. Dore Gold, former Israeli ambassador to the United Nations, argues that this original designation means that it is not appropriate to term Israel's coming move to place the Jordan Valley of the West Bank an "annexation". Aggressive annexation of territory through war is, he agrees, unacceptable and illegal -- but Israel only entered the West Bank in 1967 during a defensive war.[29]

This is a reasonable view, but sadly it ignores earlier developments. In 1922, Britain implemented Article 25 of the Palestine Mandate to create an Arab state (Transjordan, now Jordan) east of the Jordan River. This shrank the Jewish homeland, but had no impact on the West Bank or Gaza. Within the remaining British-administered part Palestine, conflict arose between Jews and Arabs, making administration increasingly difficult. The situation changed dramatically following the Second World War and the Holocaust. It was no longer morally acceptable to deny Jewish survivors or others from the Diaspora the right to create a state within which Jews could defend themselves from aggression from whatever quarter.

With the end of the war, the League of Nations was replaced by the United Nations. And in November 1947, the UN General Assembly passed Resolution 181,[30] through which the remaining Palestine Mandate territory was to be partitioned into a Jewish and Arab state (with Jerusalem made an international zone). The plan was to resolve the ongoing antagonism between the two sides, and in the first instance the Jews, motivated by Zionist hopes, accepted the partition and prepared to set up their state once British forces left. The Arabs, however, rejected the plan because they insisted on driving the Jews, as supposed interlopers -- after 3000 years in the area -- out of the territory.

This is where the plan for extending Israeli law over more territory becomes simpler to resolve both legally and morally. However many times the Palestinian Arabs have been offered a state, they have chosen to turn it down, rejecting generous peace offers. They have preferred to use terrorism and three wars launched from Gaza in pursuit of their fantasy of destroying the much more powerful state of Israel. By 2017, they had rejected no fewer than seven peace offers,[31] and this year Mahmoud Abbas turned down[32] the new US-Israeli peace plan.

As there is no Palestinian state in the West Bank (and only a terrorist pseudo-state in Gaza), Israeli settlements and annexation cannot be classed as an aggressive invasion and occupation of another state. By refusing to make peace and establish a state of their own -- or even to sit down at a table to negotiate -- the Palestinians only hurt themselves. It is as if they expect all the land under dispute to be held for them in perpetuity, presumably until such time as they might feel like discussing it or agreeing to a proposal. They have so far never submitted a counteroffer to any proposal — just a decades-long cascade of "No"s in an echo of the wider Khartoum Declaration after the 1967 Six Day War. The annexation move proposed by Israel simply cannot[33] be regarded as illegal under international law.

If Palestinian nationalism is a flimsy basis for a future state at peace with its neighbours, an even greater cause for animosity towards Israel has existed even from before the beginning of the conflict. This is the disruption between international law and Islamic law.

Islamic law does not just govern the individual lives of Muslims in the way the Christian or Jewish law[34] (halakha) does. Islam is not simply a religion. It is also a political system, and it has laws for the governance of cities, provinces and nations. One feature of this governance is the law of waqf.[35] A waqf is anything that has been given by members of the Muslim community to remain in perpetuity for religious purposes. It is not private property, but is dedicated to remain under Islamic use: a school, a fountain, a mosque, a library: whatever is given by its donor for that exclusive use. In the present context, it refers to any territory once conquered by or converted to Islam and ruled by a Muslim monarch or government -- such as previously by the Ottoman Empire. No such territory should be allowed to pass into profane, secular, Christian (such as al Andalus, consisting of southern Spain) or, in this case, Jewish hands.

That is why not just Palestinians but many other Muslims consider the creation of Israel an illegal act that must be reversed even if the destruction of Israel would contravene international legal standards.

The invention of a secular Palestinian nationalism has only served to mask this underlying concept. Evidence that it still applies, however, exists in mosque sermons[36] calling for jihad, pronouncements[37] of the Muslim Brotherhood, and, above all, the 1988 Charter of Hamas,[38] an offshoot of the Muslim Brotherhood. A former Egyptian diplomat, Mohamed Galal Mostafa, has argued[39] that, taken all in all, religious doctrine stands at the core of the wider hatred for Israel.

Here is Article 11 of the Hamas Charter on the centrality of waqf for the "liberation" of Palestine and the end of Israel:

"The Islamic Resistance Movement believes that the land of Palestine is an Islamic Waqf consecrated for future Moslem generations until Judgement Day. It, or any part of it, should not be squandered: it, or any part of it, should not be given up. Neither a single Arab country nor all Arab countries, neither any king or president, nor all the kings and presidents, neither any organization nor all of them, be they Palestinian or Arab, possess the right to do that. Palestine is an Islamic Waqf land consecrated for Moslem generations until Judgement Day. This being so, who could claim to have the right to represent Moslem generations till Judgement Day?

"This is the law governing the land of Palestine in the Islamic Sharia (law) and the same goes for any land the Moslems have conquered by force, because during the times of (Islamic) conquests, the Moslems consecrated these lands to Moslem generations till the Day of Judgement."

From this alone it should be clear that whatever peace deals and calls for mutual toleration may be made under the banner of Western diplomacy and the application of international law, Palestinian resistance cannot buckle. It would look as if the leadership were selling out God and his law, be considered grounds for treason, and require the punishment for treason: death. Here is part of Article 13 of the Hamas Charter:

"Initiatives, and so-called peaceful solutions and international conferences, are in contradiction to the principles of the Islamic Resistance Movement. Abusing any part of Palestine is abuse directed against part of religion. Nationalism of the Islamic Resistance Movement is part of its religion. Its members have been fed on that. For the sake of hoisting the banner of Allah over their homeland they fight."

If Israel implements an annexation, a violent Palestinian reaction could take the form of a third intifada[40] and, less likely, an attack from the Gaza Strip, which had historically belonged to Egypt, on Israel's south, from Hamas, which anyhow is always looking for ways to destroy Israel.

Fortunately, if Israel were to extend Israeli law over more land, the move could present an opportunity to end the conflict. Nave Dromi has recently argued[41] that the decisive end by Israel to a Palestinian fantasy that should never have been humoured in the first place, might finally enable Palestinian leaders finally to start their citizens on a constructive -- rather than a destructive -- path.











































Dr. Denis MacEoin is a former academic in Islamic and Middle East Studies.

This article was published by the Gatestone Institute. Part I is archived at Part II is archived at
The entire article is archived at Think-Israel at

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