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In previous articles(1), I dwelt on the very stringent conditions of gifting national land, but I have come to realize that even if the stringent conditions of such gifting were realized (which is far from being the case), such a gifting would still not be legal.
In order to show the fundamental illegality of Sharon's contemplated uprooting it is important to understand that the Jewish people are the beneficiary of Palestine as a "sacred trust" made by the community of nations. The beneficiary of this trust, the "sacred trust of civilisation" as it was called, is the Jewish people everywhere in the world and for all times. The beneficiaries are not just the Jews that live in Palestine and not just the present generation of the Jewish people. All future generations as well as today's are the true beneficiaries. This is the foundation of our argument.
This paper discusses the concepts of "gifting" and "sacred trust". The same arguments that bear on uprooting the Jews of Gaza and North Shomron pertain to the "Road Map."
The Mandate for Palestine of the League of Nations, whose validity is enshrined in the charter of the United Nations and confirmed by the International Court of Justice, is a trusteeship where the beneficiary is the "Jewish people", not a transient government of Israel. This is clear from every phrase of the document. For example the preamble of the Mandate for Palestine declares:
"Whereas recognition has thereby been given to the historical connection of the Jewish people with Palestine and to the grounds for reconstituting their national home in that country."
In accordance with this irreversible international recognition, the relevant international bodies and documents, such as the League of Nations and its Council, The International Court of Justice, the Permanent Mandates Commission, the United Nation Charter, use a solemn language when they refer to the decision of the community of nations to affirm that Palestine is the land of the Jewish state. Thus it is repeatedly referred to as a "sacred trust of civilisation", "the very soul of the Mandate," its "primary purpose." For more details see Julius Stone, Israel and Palestine: Assault on the Law of Nations, The Johns Hopkins University Press, 1981. We will refer to this book as JSB.
Writing about the "trusteeship system" that realized the "self-determination principle" in the "World I Settlement"(2), Stone says:
"The self-determination principle was applied in that settlement for the benefit of the Jewish people and the Arab people (within which Arabs in Palestine were included) ... This resulted in the territorial allocation of the small area known as Palestine for a Jewish national home, and the overwhelming balance of the territories concerned for the Arab people, which later became a dozen Arab states. That allocation under the self-determination principle was accepted at that time, both informally among the states and peoples concerned, and also through the solemn procedures of the international community and the League of Nations. It was confirmed by the admission of the state of Israel, after it was established, to the United Nation."
One expression of the fact that the "peoples concerned" agreed to the "World War I settlement", and it was not imposed by other nations, is the Feisal-Weizmann 1919 agreement at the peace conference of Paris. This agreement decided to divide the territory which formerly belonged to the Turkish Empire into an "Arab State" (note: one Arab State only!) and one Jewish State referred to as "Palestine"! Feisal represented the Arabs and Weizmann represented the Jews. They say:
"...mindful of the racial kinship and ancient bonds existing between the Arabs and the Jewish people, and realizing that the surest means of working out the consummation of their national aspirations, is through the closest possible collaboration in the development of the Arab State and Palestine, and being desirous further of confirming the good understanding which exists between them, have agreed upon the following articles:
The Arab State and Palestine in all their relations and undertakings shall be controlled by the most cordial goodwill and understanding and to this end Arab and Jewish duly accredited agents shall be established and maintained in the respective territories.
"All necessary measures shall be taken to encourage and stimulate immigration of Jews into Palestine on a large scale, and as quickly as possible to settle Jewish immigrants upon the land through closer settlement and intensive cultivation of the soil".
Which is precisely what Jewish settlers in palestine in general and in Gush Katif and North Shomron in particular have been doing, making a barren land blossom, and without displacing anybody from its land.
The right of the Jewish settlers in Palestine are thus enshrined by various agreements between nations, between the people concerned and by a solemn international trust referred to as "sacred trust of civilisation", which was in fact the most central item in the body that preceded the United Nations: The League of Nations.
It follows that while Jews should be allowed to live everywhere in the world, how much more so in a territory that the community of nations solemnly and irreversibly designated in perpetuity for a Jewish State. Therefore, Julius Stone writes:
"A demand that this territory [Palestine] be kept judenrein would be a gross travesty of this legal position, turning international law on its head."
Yet of all governments, the present government of Israel, ignoring election campaign promises and manifesto commitments, shamefully proposes to commit such a gross legal travesty.
It is shameful that Israeli legal bodies and many intellectuals remain silent. No doubt, many remain silent because of their total ignorance of the basic legal and historical facts. Some of the intellectuals and journalists, mainly expressing themselves in Haaretz, the "liberal" daily "for thinking people", even egg on the government to commit this uprooting. They take part in the demonization, dehumanization and delegitimization of the "settlers," who are in fact the best the nation can offer. They are the pioneers, the idealists, the self-sacrificing part of the Jewish nation.
This is not the first time that the leftist part of the intelligentsia chose the wrong side. They have been the worshippers of Stalin, as have their counterparts in other countries. On the other hand, many of the 'simple folks' object to the uprooting, and this has been overwhelmingly expressed in the phone-in programs in Israel. They sense the monumental dimension of the crime involved in the uprooting. The racist singling out of JEWS for ethnic cleansing, by a "JEWISH Government" in the JEWISH homeland, after generations of Jews had sacrificed so much to settle this Jewish land, is a shameful event for the Jewish people, precisely because it is done by Jews against Jews on Jewish land. It is initiated by Jews themselves without any new real pressure from outside and without a prior defeat in a war, such as the partial defeat in 1948.(3)
The proposed uprooting is also shameful because it constitutes a transgression of basic human rights where Jews only are singled out for this violation of human rights, and because it violates the letter and the spirit of international law.
Leaving aside the violation of the laws of basic human rights, to understand the monumental illegality of international law involved in the selective uprooting of Jews, it is important to understand how fundamental Jewish National Rights (JNR) in Palestine were to the very existence and structure of the League of Nations and why they are referred to as a "sacred trust of civilisation". It is this "sacred trust of civilisation" that Sharon undermines.
The ultimate objective of the sacred trust in 1917 was the self-determination and independence of the people concerned according to the facts of peoplehood as they then existed. The distribution of the former Turkish domains of the Middle East after World War I involved two claims: that of the "Jewish people", and that of the "Arab Nation". Arab claimants after World War I embraced Arabs of the whole Middle East area, including Arabs in Palestine, who were then in no sense a distinctive national group. Not until the 1960s was there an Arab claim that there is a distinct Palestinian nation. In fact even the Palestine National convenant still calls all Arabs "the Arab Nation". Even from 1948 to 1967, when Jordan's was illegally present in Judea and Samaria, and Egypt was in Gaza, there was no Palestinian claim for nationhood from Jordan and Egypt.
The "sacred trust concept" "was applied by allocating the overwhelming share of territory and resources of the whole Middle East to the Arab Nation(4) - including those who now call themselves Palestinians. This share was ample enough in later decades to form the territorial basis of about a dozen independent Arab states. As part of the same settlement, the Jewish people were allocated a minute fraction of the area, namely 46,339 square miles embracing both Cisjordan (the West Bank of the Jordan River) and Transjordan (the other side of the Jordan River)." This was in 1917.
Later in 1922, The Council of the League of Nations agreed to the request of Great Britain "to postpone or withhold" the full application of the Mandate in Transjordan. But note the language: the full application of Jewish National Rights (JNR) in Tranjordan was only postponed and not cancelled. There was no restriction on the full application of the Mandate for Palestine in Cisjordan. Cisjordan is only 10,871 square miles -- or about one two hundredth of the entire territory distributed. To see to what extent Arab claims to sovereignty received extensive fulfilment one should recall that there are more than twenty Arab states, not only in the Middle East but in Africa as well, even though they themselves claim to be one nation. Do they therefore deserve one state only? The resources the Arabs received were hundreds of times richer than the Jewish allocation.
To appreciate the situation it is also important to note the falsified terminology, designed to create a false effect that presents the Palestinian Arab as a victim. Such false terminology is used by the Arabs, their sympathizers and paid flunkies. It is of cardinal importance to note that "Palestine", "Historical Palestine" and "Mandated Palestine" are equivalent and refer to the area which in 1917 was designated by the community of nations to become the Jewish state. This area comprises both Cisjordan and Transjordan (today's Jordan) - Western Palestine and Eastern Palestine. And this is the meaning of those words in all relevant international binding documents.
It is equally important to keep in mind that the words "Palestine", "Historical Palestine" and "Mandated Palestine" refer - and always referred - to an area and not to a nation or to a people or to a country or to a national state. No Palestinian people has ever existed. No Palestinian country has ever existed. No Palestinian national state has ever existed. Challenge anybody who believes the "Palestinians" are a people with an ancient history to go back before the 1960s and find any documentation that such entities existed. They will not find any. Yet today many refer to Palestine as if it is a nation, a state, a people. Even those that understand that "Palestine" is an area, often refer to "Palestine" as if Israel had it all and as if there was no connection between Palestine and Jordan (which has engulfed four fifths of the area of mandated Palestine) - again in order to create Palestinian Arab victimhood.
One major reason that it is important to keep in mind the right terminology is because Arab spokespersons permanently say on the media that even if Israel gave them the totality of Judea, Samaria and Gaza, the "Palestinian Nation" would then possess only 22% of "Palestine", of "Historical Palestine",of "Mandated Palestine" (they use all three equivalent terms). But Judea, Samaria and Gaza are 22% of one fifth of Palestine, i.e. 22% of Western Palestine (Cisjordan) only. In the other four fifths of Palestine there is already a Palestinian Arab State - Jordan. I repeat in the hope that the facts may dissipate Arab smoke: there is already a Palestinian Arab state in four fifths of "Palestine", of "Historical Palestine", of "Mandated Palestine", of the territory designated for the "Jewish National Home".
Because four fifths of Palestine is already occupied by a Palestinian Arab state(5), Israel's Ministry of Foreign Affairs (MFA) concentrated for many years, even into the eighties, on explaining this truth: "Jordan is Palestine".
But "Oslo" has inflicted a total amnesia in Israel's MFA. What is in particular inexcusable is that Shimon Peres, even though he was Israel's Minister of Foreign Affairs, propagated the Arab false terminology on Israeli Radio and in the Maariv newspaper. Most recently, his close acquaintance, the writer Eli Amir, used this misleading terminology in his program on Israel's radio with Geula Cohen. No wonder Israelis lose belief in the justice of their cause if their leftist elite is recycling false Arab propaganda - and that is what they get to hear.
According to the law of trusts, a present Jewish generation cannot gift away the rights of future Jewish generations who are also beneficiaries of the trust. A transient government of Israel cannot give away fundamental Jewish National rights (JNR) on behalf of the Jewish people not currently living in Israel. More generally, if the maker of a trust designates a set of beneficiaries as the joint beneficiaries of his trust, one (or part of the beneficiaries) beneficiary of the trust cannot take it upon himself to give up the rights of the other beneficiaries. Yet this is precisely what Sharon proposes to do. He proposes to deprive all future generations of the benefit to which they are entitled by the law of trusts.
Note too that it is completely immaterial if the designated beneficiaries of a trust live simultaneously or not. Sharon cannot consult all future generations of the "Jewish people" in order to get their agreement to renounce their national rights. Therefore he cannot in law give away the rights of future generations. Note in passing two facts:
Our reasoning involves legal terms such as "trust", "trusteeship", "settlement", "beneficiary". But the logic of the "trusteeship system" introduced for nations (for details see JSB) is universal and more familiar to some people when the beneficiaries of a trust are individuals. In particular if assets are put in a trust for individual beneficiaries all of them benefit and no one beneficiary can abrogate the rights of the other beneficiaries. Similar rights apply for beneficiaries of a will. Here too the beneficiaries of a will do not have to live simultaneously and can belong to different generations. If the maker of a trust specifies that a certain individual and his descendants, in perpetuity, shall benefit from assets put in a trust, no transient beneficiary can deprive future generations from the benefit. For example somebody can put in some money in order to create a trust whose purpose would be to supervise that a certain magnificent and sentimental ring will pass through the generations in a particular family and no one generation is allowed to sell the ring away out of the family.
Since the emphasis in trust making is always on the protection of the rights of the beneficiaries, as distinct from the protection of the supervisory bodies that ensure that the goal of the trust is preserved, it is the case that the rights of the beneficiaries are invariant to the technical arrangements such as the location of the trust and the transient composition of the board of trustees. Again this applies if the trust is made for individuals or for peoples (nations). Thus, the fact that Great Britain ceased to be a trustee for the Jewish people does not affect Jewish National Rights (JNR) codified by the makers of the trust. The replacement of the League of Nations by the United Nations, in analogy to a transfer of a trust between different banks, does not affect the national rights of the "Jewish people" as the beneficiary of the League of Nations "sacred trust of civilisation". This was indeed reaffirmed in the Charter of the United Nations and by the International Court of Justice that stressed "the unbroken continuity of the self-determination principle from the World War I settlement, into the period of the United Nations." (Julius Stone). See also the relevant discussion in the subchapter entitled "Continuing Obligations of the Mandate" in pp 121-123 of JSB, and in the many articles of Professor Eugene W. Rostow who emphasized that Jewish National Rights (JNR) bestowed on the "Jewish people" by the "sacred trust of civilisation" created by the League of Nations are valid in perpetuity, even though, for example, the League of Nations itself ceased to exist, or the UK ceased to be a trustee. It is familiar fact to many that Trustees of a trust made for individual beneficiaries cannot abrogate the rights of the beneficiaries of a trust in which they serve as trustees. Similarly a nation trustee, such as the UK was, or any other supervisory organ, are not at liberty to change the beneficiaries of the trust or the nature of their benefit.
It is because of this universal logic of a trust, in law, and the rule that no one beneficiary can give up rights on behalf of other beneficiaries, in particular no present beneficiary (present Jewish generation) can give up rights on behalf of future beneficiaries (future Jewish generations) if they too are entitled according to the maker of the trust (and "Jewish people" comprises all future Jewish generations), that the following statement of the first Prime Minister of Israel is a formal legal truth.(6.)
David Ben-Gurion said:
"No Jew has the right to yield the rights of the Jewish People in Israel. No Jews has the authority to do so. No Jewish body has the authority to do so. Not even the entire Jewish People alive today has the right to yield any part of Israel."
Even if Sharon had a mandate for the proposed uprooting in Gush Katif and North Shomron from Jewish people currently living in Palestine - which he does not have - he, his government, and/or the Knesset, would represent only a small part of the beneficiaries of the trust in question. The uprooting is illegal in international law because such an uprooting deprives present and future beneficiaries of the trust of their rights.
Similarly, Sharon, his government or the Knesset, cannot legally be in a position in which they can renounce the benefits of this eternal "sacred trust of civilisation" in any other international arrangements such as the "Road Map". In other words, Sharon's, or his government's agreement to the road map (even with the conditions they attached) is illegal according to international law. The Road Map itself as conceived by the quartet is illegal in international law. To put it mildly, the idea of creating yet another Palestinian Arab state in the fifth that remained of Palestine (of the Jewish National Home) is a gross travesty of international law.
Recall that JNR in Palestine according to the international "sacred trust of civilisation" created for the "Jewish people" by the League of Nations includes the duty of the international community to urgently encourage and facilitate the dense settlement of the land of Palestine with Jews and of Jewish immigration into this land. The league of Nations' Mandate for Palestine requires "close settlement by Jews on the lands, including State lands and waste lands not required for public purposes." The mandate explicitly forbids the transfer of the land out of Jewish control in any way: "The Mandatory shall be responsible for seeing that no Palestine territory shall be ceded or leased to, or in any way placed under the control of the Government of any foreign Power."
The "sacred trust of civilisation" called for - and continues to call for - the encouragement of such Jewish settlement in these areas. With respect to Western Palestine, Jewish National Rights (JNR) there were not postponed and this territory remains forever Jewish National Territory. Indeed all the great experts of international law, including Professors Eugene Rostow and Julius Stone, explicitly wrote many times that Israel could apply its sovereignty in the totality of Western Palestine, or anywhere there it wants, whenever it wants. (The exact modalities - like arranging for Jews to vote for a parliament in Jerusalem and Arabs to vote for a parliament in Amman - could easily be arranged. I have also written a number of times that there is no demographic problem because there need not be territorial continuity. In fact, territorial contiguity is hardly a universal. Alaska and Hawaii are decidedly separated from continental America but they are states of the United States of America.)
In addition to depriving Jewish beneficiaries of their national rights as enshrined in the League of Nations' trust, the road map and its proponents propagate a racist and anti-Semitic message. Instead of punishing the network of Arab terrorists that reside in the territories, it singles out Jews - peaceful and productive Jews - for expulsion from their homes. Legally, Jewish settlements are to be encouraged and expanded, not frozen. To go to the extreme and expel Jews from their national territory only encourages the anti-Semites globally - "If Israel can kick out Jews, why shouldn't we?"
In view of these explicit duties solemnly enshrined in international law, it is a matter of great shame that instead of encouragement and facilitation of dense Jewish settlement in Palestine, it is a Jewish government that intends to carry out the opposite: to uproot existing Jewish settlement in Palestine.
It is also incomprehensible and inconsistent that President George Bush, who goes to the end of the world to uphold the rule of law, introduce democracy and fight terrorism, is willing to be complicit in the violation of the international "sacred trust of civilisation", which is so fundamental in international law.
Finally one should realize that certain things are never possible. No present generation of Jews can forgive the Nazis, if only because they cannot obtain such forgiveness from the 6 millions victims (and their potential descendants who never had a chance to live). In the same way, no generation of Jews - and no transient government of Israel - is entitled, morally and in law, to deprive future generations of Jews of their rights as beneficiaries of a "sacred trust of civilisation" created in perpetuity by the community of nations for the "Jewish people".
PART II: THE MOST DEMOCRATIC ISRAELI FORUM HAS ALREADY DECIDED AGAINST THE UPROOTING: THE DECISION OF THE MANY-INDIVIDUALS SYSTEM IS MORE DEMOCRATIC THAN THE FEW-INDIVIDUALS SYSTEM
The laws of trust as they pertain to the Jewish homeland makes what is written below superfluous. In this Part, we put the core argument aside only in order to highlight the multiple illegalities and deviation from democracy of the Sharon's government. We do this because much has been written on who is entitled to decide Israel's future.
The first issue is the size of the forum that decides. There is a qualitative as well as a quantitative difference between voting in a forum of a few individuals versus voting in a forum of many individuals. We need to determine which is more democratic.
It is important because in Israel at present, two opposing camps enlist democracy. One camp says the government and the Knesset (the few-individuals forums) decided for the uprooting and therefore it is not democratic to refuse to perform it. The other camp points out that in all the many-individuals forums, uprooting lost heavily.(7)
On a priori grounds a decision of a many-individuals system is more democratic than a decision by a few-individuals system. This is because a cynical, opportunistic and ruthless PM can alternate between on the one hand bestowing honours and jobs and, on the other hand, issuing threats and intimidation. Such an individualistic treatment is technically much more difficult to achieve in large polls and elections - especially if the vote of the individual is known only to himself.
It may be fanciful but in thinking about the history of Israel and Zionism, it seems as if Sharon is reversing the second law of thermodynamics. It is akin to the atypical behaviour one can get from a system of few individuals (particles) in statistical mechanics; Sharon is like a Maxwell's demon, selecting and pressurizing a few individuals (which includes eliminating disagreeing ministers from his government) and thus altering the natural course of history.
It would be appropriate to such an epoch-making decision to have secret voting in a many-individuals system after a long education and free discussion of the issues and potential consequences.
In truth, one can argue that even the call for a referendum or an election is not necessary, because there has been already a rejection in a landslide of the uprooting idea and this rejection occurred in the LARGEST possible forum - the general election - and there has been no change in the conditions on the ground since this last national election. If one considers the irreversible and momentous nature of such an uprooting, the idea of which was introduced within few months after the election by ONE individual who came to power by ridiculing the idea of such an uprooting, it is hard to imagine that Israel will remain a democracy if the uprooting takes place.
Some might ask how do we know that the victory of Sharon in the election was not primarily for Sharon the person and a vote of confidence in his sound judgement. Or perhaps it was primarily a vote of rejection of the other candidate, Mitzna the person - it was Mitzna who proposed a unilateral withdrawal from Gaza and it was Sharon who won by opposing the idea.
It is the hallmark of a mature democracy that the people vote primarily for the ideas included in the party's manifesto, and also for the ideas associated with the party for many years. And not for charismatic individuals. Secondly, they vote according to the statements of the two opposing sides in the election campaign. Here too Sharon opposed Mitzna's ideas saying that Kefar Darom and Nezarim are like Tel Aviv, Kefar Saba and Negba; and he pointed to the dangers in Mitzna's much more limited uprooting program. In particular he said that retreat under terror will encourage terrorism. It is also the case that it is hard to think of something more central in the last election campaign than the clash between Sharon and Mitzna about the uprooting of settlements.
So the conclusion is that even if one ignores the overriding argument in Part I that such an uprooting of settlements should not be on the agenda at all at any time, and if we want to present the idea of uprooting for a democratic decision by a present generation of Israelis, it is the case that the most democratic forum has already decided in the last election against such an uprooting.
Again, what is written in Part I makes what is written below superfluous. Ignoring the legal core of Israel's birth as a State, Part II asked whether a few-individuals system or a many-individuals decision was more democratic. This Part discusses whether or not the Israeli people have the right to decide on Sharon's disengagement plan, at all.
If one choose to ignore both the inappropriateness of considering the uprooting and the majority decision against it, it is still impossible to understand why Sharon refuses to go for a new election or a poll on the subject (limited to the Jewish population of Palestine and after a long and exhaustive public debate). After all, giving voluntarily parts of one's homeland is an unprecedented matter and of supreme importance in the life of a nation.
Compare this to a more "normal" response to a much less significant change. In a discussion on BBC radio (22.2.05) about the advantages and disadvantages of introducing identity card in the U.K., an authority said that he does not see that this could be introduced by the present government. He said: "It will have to be included in a manifesto" (he was referring to a manifesto for a [coming] election). If it is considered that an easily reversible decision, such as introducing identity card, cannot be done in the lifetime of a serving government without prior inclusion of the idea in its manifesto and tested in an election, how much more is it justified to include the largely irreversible momentous uprooting in a manifesto (or at least in a poll).
Some might object to the settling of the matter in a poll or an election claiming that this can serve as a precedent, and it is too awkward and costly to have frequent elections or polls and it might paralyze the decision-making process. But it should be obvious that this cannot serve as a precedent because there is nothing more fundamental and without a precedence in the annals of all nations. Who surrenders parts of their homeland unless they were defeated in a major war? Such a voluntary one-sided gifting of land to an enemy has these features:
These issues clearly dictate the need for a deep public and intensive debate without time constraints. Furthermore, even if we ignore the economic and security calamity that we ourselves will bring on ourselves, such an uprooting will be a mortal blow to the Zionist ethos, to the pioneering spirit that made this country possible. It will tear the nation apart and demoralize the least selfish element of society. Who in the future will be motivated to volunteer and sacrifice for the nation?
It might be worth remarking that a country like Switzerland uses polls frequently without a paralysis of the process of government. In the future, with the internet technology, it could be even easier to go back to the people for all major questions.
Imagine the public outcry in Israel and the Jewish world if Sharon decided to uproot Sderot, Manara, Ramat Aviv and Herzeliya. Why the difference? It is precisely because the settlements are beyond the Green Line and considered by the ruling leftist elite -- that has infiltrated all nodes of power such as education, theatre, art, literature, media, the judiciary and the police - "not Israel". Sad to say, for selfish and short-sighted reasons, some representatives of "right-wing" parties have also agreed to let Sharon do what he wants to do.
Because it is "not Israel" it is possible to tell the settlers to "come home". Never mind that Jews are allowed to "settle" everywhere in the civilized world and not just at "home". Never mind that some 20% of the population at "home" is Arab. So what kind of peace is it where a few Jews contaminate a "prospective" Arab state?(8)
To perpetuate the imaginary difference between the two sides of the green line, in the mind of Israelis and the world, and thus prevent even greater outcry in the face of the singling out of Jews for uprooting in their own Jewish homeland, everything is done by the leftist ruling elite to conceal JNR from the population in Israel and the world at large.
The socialist elite that ruled Israel since before the declaration of the state, and for generations afterwards, has not included JNR in the education program in schools. Even the institution of the League of Nations was not mentioned in schools. This glaring omission occurs even though, for example, Professor Eugene W. Rostow, who was one of the greatest jurist mind that ever lived, the dean of Yale Law school, a US under-secretary of state and formulator of Resolution 242, repeatedly wrote that from the point of view of international law Jews have equal rights to settle on both sides of the green line and are in fact urgently encouraged to do so. So have written the other judicial experts, among them Julius Stone.
After all, settlements such as the block of Gush Etzion settlements, Atarot, Neve Yaakov, Kalya, Beit Haarava, Kefar Darom, the Jewish quarters in the old city of Jerusalem and in Hebron were all beyond the green line before 1948. They only disappeared because of Arab aggression and Jewish military weakness. When they were in existence - "beyond the green line", mind you - no international body, including the mandatory power, claimed that they are illegal in international law. On the contrary, their existence fulfilled the call of international legality.
Has the Arab aggression that caused their physical removal made them a posteriori illegal? Obviously not.
The present settlements beyond the green line are legal for the same reasons that the destroyed Jewish settlements beyond the green line were legal before 1948. The old settlements that were destroyed by Arab aggression and the resurrected settlements beyond the green line draw their legality from the same source: The "sacred trust of civilisation" enacted by the League of Nations and transferred to the United Nations.
If the government of Israel allowed its official representatives to assert a simple and obvious truth - that all of Israel including the 'territories' belongs to the Jews - both on the world stage and at home, they would simultaneously cater to many needs. First, they would be responding effectively to the hostile refrain that the settlements are illegal in international law. They would be able to counteract academic, commercial and other boycotts. They would increase the safety of not just Israelis but also of Jews the world over, because such assertions would encourage the various authorities to defend the Jews. And the Israeli government would have greater freedom of manoeuvre on the ground; for example, to install fences on land that belongs to the Jewish people according to international law.
If the Palestine "sacred trust of civilisation" made by the international community for the "Jewish people", and the continuing validity in international law of this trust and the JNR included in it were included in Israeli and Jewish education systems, then Israelis and Jews the world over would possess the most important information to enable them to respond effectively to detractors. Most importantly, it would substantially contribute, morally and legally, to asserting the "justice of the cause" of the Jewish people.
Why has the Ruling Leftist Elite not included the Palestine "sacred trust of civilisation", in the Israeli education system since before the state was declared, and since Oslo even in Israel's Foreign policy? After all, if they think that they can give away Jewish land -- and the point of Part I was that they are not entitled to do so according to international law -- then this gifting away would have been much more appreciated. It would have been a real concession and therefore effective for peace, if it is acknowledged that Israel gives away something that belongs to the Jewish people.
Not only has the Ruling Leftist Elite made sure that Jews and Israelis themselves will remain ignorant of the extent of JNR - and thus reduces the outcry in the face of the uprooting of Jewish settlement in Palestine and the giving away of Jewish National Land - but this elite also repeats the misleading and false statements of the Arabs. For example, as we said above, Peres and his associate, the writer Eli Amir, repeat in the Israeli media that even in case of total retreat from Judea, Samaria and Gaza, the Palestinians will get only 22% of Palestine. Such statements increase the feeling of guilt of Israelis and Jews and make them more complaisant about uprooting their brothers -- other Jews.
Worse, there is no chance for an effective Hasbara policy. No wonder Peres decreed, when he was Minister of Foreign Affairs, that there is no use to have Hasbara at all.
There cannot be an effective Hasbara if you hide the objective historical-legal truth. Indeed, if Palestine is only fifth of Palestine (Western Palestine), and if the "Palestinians" are not just Arabs but a nation apart, than even if Israel will give away the totality of Judea, Samaria and Gaza, Israel will still possess 78% of Palestine and leave only 22% of Palestine to the "Palestinian Nation". How unfair!
But if you speak the truth and explain why it is the truth: the Palestinians are not a nation apart, in reality, and even according to their own statements and writings. And if you add that the Arabs themselves often say that they are one nation (and with amazing honesty admit their mission is to destroy Israel), and if you say that Western Palestine - Israel proper and improper - is only a fifth of Palestine, than you can have a rational and convincing Hasbara policy.
Unfortunately, as a rule, objective facts which are pro-Israeli are deliberately omitted by Israel's own official representatives in their public pronouncements and discussions. For example to counteract the commonly believed "injustice to the Palestinians", it would have been effective to invoke the fact that all non-Jewish travellers reported how desolate and sparsely populated Palestine was in the end of the 19th century. Instead, the "socialist elite" propagates the untruth that Jews returned to a country that was already populated by another nation, as Lova Eliav did in the "Haarachat Mazav" program of Israel Radio, 24.2.05.
Official Israel should be proclaiming the truth: the Jews never completely left Palestine; but most of the so-called "Palestinians" came from outside Palestine in the 20th century, precisely because of the economic boom, opportunities for employment and medical benefits created by the Zionist enterprise. Things haven't changed. The Arabs want to work in Israel, and were massively doing so before the Intifadas.
Israeli officials avoid presenting pro-Israeli facts. For example, when there is a discussion about "Palestinian refugees",(9) Israeli representatives will not as a rule even mention the much greater number of Jewish refugees from Arab countries. Unlike the Arab "refugees", they left destitute because they were not allowed to take their property; they were driven out after pogroms and persecutions; and they were displaced from countries really far away, in which often they had lived well before the Arabs conquered these countries. Why don't the officials responsible for presenting Israel's case mention that Israel absorbed these real refugees with great difficulties in the midst of austere rationing, without international aid, unlike the billions upon billions of dollars of international aid that has gone over the years to the "Palestinian refugees" and which serves only to perpetuate their refugee status for political reasons and for terror?
The Israeli representatives never mention that in 1948 the Israeli authorities pleaded with the Arabs to stay and not to become refugees. Some indeed stayed and lived happily in Israel ever after, but other left largely because of the threats of the Arab authorities telling them that they will be considered traitors if they do not leave. The Israeli diplomats could have used the leaflets that were used at the time pleading with the Arabs to stay. They could have used the many statements in writing, since 1948 to the present, of Arabs themselves, admitting that this is indeed what happened. They do none of that.
Whereas the Arab representatives keep stressing the need to remove the "occupation" and the "settlements that are illegal in international law" and the need to settle the refugee problem, the Israeli representatives who have so much to say that would benefit Israel keep saying "when the terrorism will end then the occupation will end". They do not point out that you cannot "occupy" your own country. They do not say that the settlements are legal. They do not point out that Palestine includes Eastern Palestine and they do not invoke the Palestine "sacred trust for civilisation" and its content. They do not discuss the history of the "Palestinian refugees" and the real refugees, the Jews from Arab countries.
So why do Israeli representatives expect that the Palestinian Arabs will ever stop terrorism if Israel itself implicitly or explicitly accepts the lie that even after a total Israeli withdrawal to the 1967 borders, the "Palestinian Nation will remain with only 22% of their country." The Arabs lament they 'wuz robbed' by the Zionists; but the Israeli diplomats know better.
This is a hopeless Hasbara policy that was decreed by Peres and was forced on all Israeli embassies around the globe when he began to promote Oslo. Unless official Israeli Hasbara starts to refute Palestinian statements and assert fundamental truths instead of repeating Palestinian lies and terminology, there is no hope whatsoever for Israeli Hasbara. Anti-Semitism in the world will only increase. And to a large extent the Jews will have only themselves to blame.
When Israeli officials and diplomats are asked why they do not use the many facts they could use, many Israeli diplomats admit that they would like to use these many facts (the Hasbara veterans know that many such facts were indeed used before the Oslo period) but, they say, they are not allowed to use these facts by the Minister of Foreign Affairs and the Prime Minister. So, we repeat, the overwhelming responsibility of this self-defeating and destructive tradition since "Oslo" began rests with Shimon Peres, the architect of "Oslo". And, from the beginning of his Ministry, Sharon went along.
A recent example of such a poor, hopeless and ineffective Israeli Hasbara took place on 13.2.05 in a BBC-world Service Phone-In program with Israeli Hasbara supremo Gideon Meir and Palestinian Minister Sa'eb Erekat. What is breathtaking is the hypocrisy involved in such a self-imposed and self-defeating policy: the Sharon's government declares that a major reason to uproot settlements in Gaza and North Shomron is to improve Israel's standing in the world and to relieve the international pressure on her. But if this were really the case, why do they deliberately abstain from stating objective facts? Whose interests do they serve?
Writing that (1) the Government is concealing the true objective historical-legal facts and (2) the defaming and the demonizing of the settlers is done in order to minimize the outcry at the uprooting of the settlers is not hypothetical. There are many explicit proofs. The ex-general manager of Israel's MFA, Dr Alon Liel, is someone who should have explained to the world the legality of the settlements. When he, of all people, declares on Israel radio (in various "Haarachat mazav programs in reshet beth) his antipathy to the settlements, their illegality in international law and how it is important to remove them in order to improve Israel's standing in the world, and how much Israel's image in the world is already improved by the recent decision to remove settlements, what are we to think?
When the head of correspondents in Israel radio, Gad ben Yizhak, when asked to bring on an expert who knows that the settlements are in fact legal in international law, responds, some months before the present uprooting program was mentioned by the government, that "it would be impossible to bring such an opposing expert that will say that the settlements are legal to this radio program since we have to prepare the nation for the uprooting of settlements", what are we to think? When many other such examples can be cited, there is no doubt that the left's hatred to the settlements is greater than their interest in effective and truthful Hasbara and in the people's recognition of the justice of our cause.
They harness everything to their obsession of removing Jewish settlement in Palestine, even in Western Palestine. This policy is intellectually inferior and intellectually dishonest because it is based on hiding objective facts, in particular the objective facts that are pro-Israel. This policy is all the more puzzling because it allows the Arabs to make outrageous claims and win sympathy because the "Jews are occupying their land'. Why is there such a self-destructive policy? Surely the Israeli Government knows it will not bring peace. It will only win the Arabs support as they continue to terrorize Israel. Aside from encouraging hatred of Israel abroad, it promotes a multiply-illegal uprooting of Jewish settlements in Palestine. And it does incalculable damage to education and hasbara in Israel itself.
Sadly, this is being done when the "right" won the last election and is formally in power. This is the "right" that for many years has enshrined the centrality and importance of Jewish settlement in Palestine in its manifesto. Such is the power of the leftist infiltration into all nodes of power, supported by countries that are not friends of Israel, no matter what they say. So deep is the betrayal of democracy in Israel today!
(1.) See "Is Israel's Legal System Acting Illegally," http://www.think-israel.org/shifftanlegalsystem.html and "Who Is Entitled To Gift Away Jewish National Rights?," http://www.think-israel.org/shifftan.gifting.html
(2.) "Settlement" in this context refers to the redistribution of a part of the Ottoman Empire. The intent was for the major portion of the land area to go to the Arabs as an entity. This was soon changed and individual Arab states were created. A small part of the vast area that was labeled Palestine was to be Jewish.
(3.) In 1948, Jordan took over Samaria and Judea and renamed them the West Bank and Egypt took Gaza. That led to the loss of the Jewish settlements in these places because the Jews were killed or expelled. Israel conquered the areas after the Arabs again attacked Israel in 1967. Samaria and Judea and Gaza are Biblical Israel and were known as such since Biblical times until 1948. Unfortunately, successive Israeli governments did not give this area back its rightful names.
(4.) The Arab Nation was an artificial construct. According to the Encyclopedia Britannica of 1911, it included some half a hundred ethnically distinct peoples.
(5.) See also the chapter entitled "The Kingdom of Transjordan (Jordan) as a Palestinian Arab State" in JSB. Initially known as Transjordan, the Kingdom renamed itself The Hashemite Kingdom of Jordan in the wake of its 1948 victory.
(6.) It is also true as guided by many additional legal concepts. For example, territories obtained in self-defence are never returned. For one list of such additional legal reasons see pp 168-169 in JSB. Add to this the weight of history, archaeology, national consciousness, religion and culture.
(7.) This includes the all-important recent national election where such an uprooting was central. It includes the two votings about the uprooting in the Likud, one of them included the whole membership of the Likud. It includes the third voting in the Likud where Netanyahu's position against a Palestinian state won.
(8.) Iraq, Syria and Lebanon have grudgingly and intermittently tolerated Jews as distinctly second-class citizens (dhimmis). Other Arab countries, Jordan and Saudi Arabia, for example, do not permit Jews to live there. The projected second Arab Palestinian state would likely not tolerate Jews, not even as dhimmis.
(9.) Most of these "refugees" remained in fact in Palestine, "even those Palestinian Arabs who moved from Cisjordan to Transjordan were in fact only migrating from one part of Palestine to another, over relatively short distances, averaging perhaps 50 to 100 miles. They continue to live within similar cultural, demographic, linguistic, religious, and even climatic environment" (from JSB).
Dr. Yoram Shifftan has published many articles on Israeli hasbara,
in publications such as Ha'aretz, Ma'ariv, Hatzofeh, Hamodia and
Ha'Uma. He has also presented a special series about hasbara on
Arutz-7 radio. His articles in Think-Israel have been on
hasbara and the legal basis of Israel ownership of Biblical Israel.
Dr. Yoram Shifftan has published many articles on Israeli hasbara, in publications such as Ha'aretz, Ma'ariv, Hatzofeh, Hamodia and Ha'Uma. He has also presented a special series about hasbara on Arutz-7 radio. His articles in Think-Israel have been on hasbara and the legal basis of Israel ownership of Biblical Israel.
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