ACPR Policy Paper No. 157
THE TRANSFER OF JEWS
UNDER PRIME MINISTER SHARON'S
UNILATERAL DISENGAGEMENT PLAN
Howard Grief
Executive Summary
Prime Minister
Sharon’s Unilateral Disengagement Plan for Gaza and Northern Samaria is a
deliberate misnomer and deception to hide the truth of what he really intends
to do. Disengagement was never Sharon’s true object since there already exists
a separation of Jews and Arabs in these regions of the Land of Israel. What he
seeks in the name of security and eventual peace is not disengagement, but an
illegal territorial withdrawal from integral parts of the Jewish National
Home, the uprooting of flourishing Jewish settlements and the forcible
transfer of Jews from their sovereign land. The implementation of this plan
will infringe Jewish national and political rights to the Land of Israel under
international law, Israeli constitutional law and criminal law, as well as
Jewish religious law. The Disengagement Plan would never have seen the light
of day, if the Attorney-General had threatened to enforce the relevant law
governing this Plan.
The transfer of
Jews from the Land of Israel where they are lawfully present has absolutely no
legal validity. Such transfer violates the most basic rights of Jews inherited
from the Mandate for Palestine which were subsequently implanted into the
constitutional law of the State of Israel upon the expiry of the Mandate and
the proclamation of the State. Those rights concern immigration and settlement
anywhere in the Land of Israel under the rule of the State. The converse of
the right of settlement prohibits the uprooting of government-authorized
settlements and the displacement of their Jewish residents. Inasmuch as the
Jews in Gaza and Northern Samaria are lawfully present in these areas, there
are no legal grounds under international law to justify their transfer as
defined in the Rome Statute of the International Criminal Court. The transfer
of Jews from undisputed parts of the Land of Israel is also a clear violation
of the Law of Return passed on July 5, 1950, which also incorporates the
previously existing Jewish Right of Return into Israeli constitutional law.
The scope of the Right of Return is the Land of Israel in all its dimensions,
not merely the limited area of the State of Israel, as evidenced by the use of
the word artza (“to the Land”) in the text of the Law of Return, rather
than medina. Any restriction placed on the Right of Return which built
the State of Israel is a repudiation of Zionism and a staggering blow to the
highest value of the State.
The transfer of
Jews from Gaza and Northern Samaria also violates the Proclamation of
Independence which promotes the return of Jews to the whole of Eretz Israel.
Furthermore, the evacuation of Jews from their settlements will impair the
sovereignty of the State over all regions of the Land of Israel presently
under its control, exposing those responsible for the Disengagement Plan,
particularly Prime Minister Sharon, to a charge of treason under section 97(a)
of the Penal Code. Since the Disengagement Plan also involves a territorial
withdrawal, a charge of treason can also be brought against him under sections
97(b) and 100 of the law. However, this would only take place if and when a
true Zionist government comes to power and initiates prosecution. Finally, the
rabbinical call to Jewish soldiers and policemen not to obey any order to
uproot Jewish settlements and eject settlers from their homes in the Land of
Israel is in full accord not only with a widely accepted interpretation of
halakha, but also with the most important law of the State, i.e., the Law
of Return which embodies the sacred Right of Return of Jews to their ancestral
homeland.
THE TRANSFER OF JEWS
UNDER PRIME MINISTER SHARON'S
UNILATERAL DISENGAGEMENT PLAN
Howard Grief
The forcible
expulsion and transfer of about 8,000 Jews from 21 settlements in Gaza and
four in Northern Samaria under Prime Minister Ariel Sharon’s Unilateral
Disengagement Plan, though not “a crime against humanity” in the narrow sense
of the term, is nevertheless illegal under international law insofar as it
infringes upon or extinguishes the national and political rights of Jews to
all of the Land of Israel. It is also illegal under Israeli constitutional law
and Jewish religious law. Moreover, the Plan may also be classified as a crime
of treason under the relevant provisions of Israel’s Penal Code. Therefore,
continuous and widespread efforts must be made in every available forum –
public, political and legal – to halt the implementation of the Plan before it
becomes an accomplished fact and causes immense damage to the Rule of Law, to
Zionism and to the future of the State of Israel and Land of Israel.
The Disengagement
Plan under which Israeli citizens are to be uprooted from their
government-authorized settlements and transferred to other areas inside the
state’s present borders is a deliberate misnomer and deception fostered by the
Prime Minister and his chief advisers. The Israelis who are living in the Gush
Katif settlements and those in northern Gaza and northern Samaria are already
separated or disconnected from the Arab population. There is no interaction or
dealings between the two sectors of population in the areas where the
settlements are located. The Israelis reside in self-contained and
self-supporting units that are protected by the IDF in the same way as are all
other settlements in Yesha (Hebrew acronym for Judea, Samaria and Gaza). Thus
there is no actual requirement for “disengagement”. It is a fiction to assert
otherwise. What the so-called Disengagement Plan represents is really the
illegal territorial withdrawal from the Land of Israel that is part of the
Jewish National Home under international law, an uprooting and abandonment of
flourishing Jewish settlements and, last but not least, a forcible transfer of
Jews from Jewish land. All this is to be done unilaterally to separate most
Israelis from Arabs in the Holy Land under the false belief that this will
ensure greater security for Israel and ultimately bring peace, according to
the architects of the Plan. In this regard, the building of the security fence
is part of the overall strategy of disengagement from the Arab side.
It should, however,
be noted that the kibbutzim that lie not too far from Gaza, such as Nahal Oz,
Kissufim, Nir Oz and others, would under the same logic employed by the
proponents of the Disengagement Plan have to be uprooted and abandoned because
they, too, are very close to Gaza and require constant IDF protection for
their survival. This logic also applies to Israeli towns and cities, such as
Ashkelon and Sderot that are now or may one day be within firing range of
Arab-launched missiles from Gaza. Indeed, no place in Israel is completely
safe from Arab attack – including Tel Aviv, Jerusalem and Haifa and the whole
of Galilee which has a large Arab population. There is no need, therefore to
single out for evacuation the Gaza and Samaria settlements because of the
defense burden their very existence entails.
This is not the
first time that the Government of Israel has resorted to trickery or
euphemisms to hide what it was really doing. That already happened under the
Israel-PLO agreements when the act of surrendering territory in Judea, Samaria
and Gaza to an unrepentant terrorist and criminal organization was referred to
as the “redeployment” of the IDF in Yesha. This apparently innocuous
designation covered up the real purpose of what the Government had decided to
do: the giving up of parts of the Land of Israel to an Arab entity, the
so-called “Palestinian Authority”, contrary to Israeli law, in the hope that
this would bring “peace” and solve the Arab-Israeli dispute over the Land of
Israel. Instead, the dispute grew a thousand times worse, judging by the
number of Israelis murdered and wounded by the “Redeployment Plan” of Yitzhak
Rabin, Shimon Peres, Yossi Beilin and the two academics who helped to devise
this policy that became an unmitigated disaster for Israel.
The Disengagement
Plan will fare no better. It will make Gaza into a safe haven for Arab
terrorism and not stop the rockets hurtling into Israel. The solution is not
to withdraw from the Land of Israel and uproot Israelis from their homes and
settlements, but to expel the Palestinian Authority and all other Arabs who
support terrorism or work for the destruction of the Jewish state, including
the hundreds of thousands who have arrived in the land since the so-called
Oslo Peace Process began.
In examining the
planned transfer of Jews from Gaza and northern Samaria, the term itself
should be defined. Under international law, transfer does not mean voluntary
transfer, which can be assimilated to emigration and, in Zionist parlance, to
aliyah, ever since Theodor Herzl urged the mass evacuation of Jews from
Europe to the Holy Land to establish the Jewish state he visualized. Transfer
as a legal term only exists if there is coercion or intolerable conditions
which cause a movement of people from one place to another. It is equivalent
to compulsory displacement, expulsion, deportation or relocation. Under the
Rome Statute of the International Criminal Court, “transfer” means the “forced
displacement of the persons concerned by expulsion or other coercive acts from
the area in which they are lawfully present, without grounds permitted under
international law”. This definition would apply to any area of dispute in the
world, whether it concerns “occupied territory” or not.
Though the Rome
Statute is not part of Israeli law, the definition of “transfer” it contains
is useful in judging whether the contemplated evacuation of Israeli settlers
in Gaza and Northern Samaria under the Unilateral Disengagement Plan fits this
definition and would thus be considered “a crime against humanity” under this
Statute. These settlers are lawfully present in areas that international law
has designated as part of the Jewish National Home. Jews are not an alien
element of the population in Gaza or Samaria, but live there as of right. This
right was explicitly recognized under the Mandate for Palestine and the
Churchill White paper of June 3, 1922. They are also lawfully present in these
areas by virtue of the decision of the Government of Israel. Inasmuch as the
great majority of the settlers are peaceful, law-abiding and loyal citizens of
the State of Israel, there are no valid grounds permitted under international
law for their evacuation and transfer. Hence if and when the Government of
Israel carries out its Disengagement Plan, the forced displacement of the
settlers would constitute an illegal transfer of population that is forbidden
under international law. It would not, however, constitute “a crime against
humanity” as defined in the Rome Statute, since the transfer is to be carried
out by the decision of the home government of the settlers and does not
involve an attack from another state or an attack on a civilian minority
comprising a separate ethnic or religious population. On the other hand, those
who vociferously advocate the transfer of Jews from Gaza and Northern Samaria,
particularly members of Israel’s Labor, Yahad and Arab political parties,
would likely deem it “a crime against humanity” if the persons to be
transferred were Arabs rather than Jews.
Historically, the
transfer of Jews either from their homeland or from various lands in the
Diaspora has occurred several times in both ancient and modern days. We need
only recall the large-scale deportation of Jews from the Kingdom of Israel by
the Assyrians, those later exiled from the Kingdom of Judah to Babylonia, or
banished from Judea to Rome after the subjugation of the land by brutal
foreign conquerors. In the medieval period, Jews were also expelled from
England by Edward I (1290) and from Spain (1492) by Ferdinand and Isabella,
among some notorious examples. During the twentieth century, the most notable
example of the forcible transfer of Jews occurred when Adolph Hitler assumed
power in Germany and deported not only German Jews to concentration camps but
also the Jewish populations in all the neighboring European countries
conquered and occupied by Germany during World War II. The Jews were removed
from their homes and sent on trains to concentration camps for the purpose of
providing Germany with slave labor and for extermination. The deportation of
Jews carried out by Hitler’s Germany violated every norm of law in civilized
countries and was subsequently prohibited by Article 49 of the Fourth Geneva
Convention. This kind of transfer was not only a crime against humanity, but
also a war crime, a crime against the Jewish People and constituted the crime
of genocide.
In the period after
Israel’s War of Independence (1948-1949) and subsequent wars, approximately
800,000 Jews were forced to leave Arab lands, particularly Iraq, Yemen, Egypt
and Morocco, of which approximately 600,000 made their way to Israel in
various operations. The number of Jews who were forced to leave all the Arab
countries actually exceeded the number of Arab refugees who left the Land of
Israel in the wake of the first Arab-Israeli war, which – according to the
initial figure compiled by UNRWA – was put at 590,000. The forcible transfer
of Jews from Arab countries was illegal because the Jews were peaceful and
law-abiding citizens who were not disloyal, but merely caught up in the vortex
of the struggle between Arabs and Jews over Palestine. They were forced to
leave Arab League states, where in some cases they had resided a thousand
years before the advent of Islam and Arab rule, merely because as Jews they
were suspected of identifying with the Jewish state of Israel. In contrast to
the exemplary behaviour of Jews living in Arab lands, most of the Arabs who
have left the Land of Israel since 1948 either engaged in or supported a war
to drive the Jews out of the country. The Arabs who now live in the areas
under the control of the “Palestinian Authority” created in 1993 under the
first Israel-PLO Agreement (the Declaration of Principles) continue to act in
the most violent and lawless manner, committing acts of terrorism, murder and
sabotage that no other country in the world would tolerate. Their forcible
transfer to nearby Arab countries would not be considered illegal under
international law, for the same reason that 12 million Germans were expelled
after the end of the Second World War from Poland, Czechoslovakia (now the
Czech Republic) and other European countries. In each instance there was
active complicity in the wrongful and terrible acts that were being
perpetrated against the host countries they lived in, which made their
continued presence in those countries an abomination or simply intolerable.
Transfer in these circumstances is permitted under international law, provided
it is carried out in an orderly and humane manner, as decided in the Potsdam
Agreement of August 2, 1945 between the USSR, the USA and the U.K., and
subsequently approved by China and France.
In regard to the
forcible transfer of Jews from settlements set up with the approval of the
Government of Israel, a harmful precedent was set in April 1982 when about
4,500 Israeli civilians living in nearly a dozen settlements in the Rafa
Salient (Pit`hat Rafiah), including the town of Yamit, located on the northern
edge of the Sinai Peninsula, bordering on the Gaza Strip, as well as several
other settlements along the coast of the Gulf of Eilat and the Red Sea
including the town of Ophira (Sharm e-Sheikh), were transferred and the
settlements dismantled, pursuant to the Camp David Accords and the
Egyptian-Israeli Peace Treaty.
Prime Minister
Menahem Begin justified the demolition of these Jewish communities and the
transfer of their residents on the ground that this step was necessary to
secure a permanent peace with the largest Arab country in the region, which
would at the same time enhance Israel’s security and achieve good neighborly
relations, as spelled out in the Framework Agreement for Peace in the Middle
East. In any case, Begin did not consider Sinai to be part of the Land of
Israel, so he had no apparent misgivings about giving all of it up to Egypt in
return for peace. Begin’s view about Sinai not being part of the Land of
Israel differed sharply with the one held by Israel’s first and greatest Prime
Minister, David Ben-Gurion, who in a victory speech at the conclusion of the
Sinai War on November 7, 1956, told the Knesset that the IDF did not enter or
violate the territory of Egypt when it conquered Sinai. He believed that the
whole of Sinai, including the Red Sea islands of Tiran and Sinafer (Sennaper),
were part of the historical Land of Israel. He recalled that the island of
Tiran was the place where an independent Jewish state once stood in ancient
times, known as Yotva, until it was destroyed by the Byzantine Emperor
Justinian in the year 535, according to Procopius, a 6th century
Greek historian born in Caesarea in Palestine.
In truth, at least
half of Sinai was an historical and geographical part of the Land of Israel
ever since the days of King Solomon. If the Brook of Egypt or River of Egypt
was congruent with the Nile River, then all of Sinai would be within the
borders of the Promised Land, a point that is still hotly debated today among
Biblical scholars.
Under Ottoman
Turkish rule, the Sanjak of Jerusalem covered a major part of Sinai until
1906, when Britain forced the Ottoman Sultan to adopt a new administrative
border running from Rafiah to Eilat to protect its imperial interests in the
Suez Canal from military attack by creating an extended buffer zone away from
the Canal. This line differed from the previous one, from El-Arish to Suez.
However, neither of these boundary lines constituted an international border
between the Ottoman Empire and Egypt. It was only by virtue of the
Egyptian-Israeli Peace Treaty signed in Washington, D.C. on March 26, 1979 by
Menahem Begin and Anwar Sadat that the formal international boundary was
delineated, thus making Sinai a part of Egypt. Begin’s decision to destroy all
the Jewish communities of Sinai in April 1982 was illegal, because it
contradicted the Law of Return and other Israeli laws pertaining to the Land
of Israel, based on the assumption that these communities were located in the
area of Sinai that was undoubtedly a historical and geographical part of the
Land of Israel and still is.
The same argument
that was raised in regard to Sinai – that it is not part of the Land of Israel
and can therefore be given up because it does not belong to the Jewish People
– is heard again in regard to Gaza as a result of the Disengagement Plan. At a
meeting of the Knesset Constitution, Law and Justice Committee on November 14,
2004 to discuss the draft law for the implementation of the Disengagement
Plan, Ruth Lapidot, Professor of International Law at the Hebrew University,
is reported to have said1: ”Gaza is not part
of the Land of Israel; it is occupied territory”. This statement by a person
known as an expert in international law is ludicrous nonsense. Gaza was an
integral part of Mandated Palestine otherwise known as the Land of Israel.
Gaza never belonged to any Arab state and therefore cannot be classified as
“occupied territory”, as defined in Article 42 of the Hague Regulations. It is
one of the several territorial divisions of the Jewish National Home belonging
to the Jewish people.
None other than
Menachem Begin, who willingly gave up the Sinai to Egypt, vociferously opposed
Israel’s withdrawal from Gaza after the Sinai War of 1956 on the ground that
being part of the Land of Israel, it should not be given up. However, Israel
was compelled by joint Russian and American pressure a mere 24 hours after
Ben-Gurion’s victory speech to the Knesset on November 7, 1956 to agree to
withdraw not only from Sinai but also from Gaza. The USSR had threatened a
nuclear strike if Israel did not accept its demand, while the USA threatened a
cut-off of all financial aid as well as other sanctions. Ben-Gurion acted
under duress or force majeure when he decided to withdraw from what was
part of the Land of Israel, and therefore cannot be legally blamed for what he
did. Furthermore, no Jewish settlements then existed in either Sinai or Gaza
and no Jews were being transferred. That situation is vastly different from
what Israel intends to do under the Disengagement Plan, which is to
voluntarily abandon parts of the Land of Israel to non-Jews, uproot a score of
settlements and forcibly transfer Jews, when there is no pressing need to do
so.
Gaza was not always
considered a liability. In August 1946, the Jewish Agency put forward a
Partition Plan in which Gaza was included within the borders of a Jewish
state. In the Alon Plan devised by Yigal Alon in 1970 to determine which of
the territories Israel conquered in the Six Day War should be retained for
itself in any future peace agreement to be made with its Arab neighbours, he
advocated that the part of Gaza that did not contain a dense Arab population
ought to be left in Israel’s possession. This part was, in fact, the southern
half of Gaza, which is exactly where Gush Katif stands today, that Sharon is
so anxious to abandon.
Insofar as Northern
Samaria is concerned, no one can deny its status as an integral part of the
Land of Israel ever since the days of Joshua, despite the recent Supreme Court
judgment handed down by Aharon Barak, the President of the Court, who ruled it
to be held by Israel under “belligerent occupation”, which translates into
“occupied territory”.2 That the most senior
judicial figure in the country can so misjudge the legal status of Samaria is
a shameful mark of abysmal ignorance about Israel’s legal rights to the Land
of Israel under international law and Israeli constitutional law. That same
abysmal ignorance also underlies Sharon’s Disengagement Plan.
In determining the
legality of Sharon’s Plan to transfer Jews from Gaza and Northern Samaria,
attention must first be paid to Article 6 of the Mandate for Palestine, which
represents the legal recognition of the Jewish right of return to all of
Palestine and the Land of Israel, under international law. The Jewish right of
return embraces the twin right of immigration and the right of settlement in
all parts of the Land of Israel, including Gaza and Samaria. That is why the
British Government, during the time it governed Palestine and the Land of
Israel under the Mandate, never dared to uproot any Jewish settlement
established by Palestinian Jews even without its consent. The Mandatory
Government realized it would have been illegal for them to do so in light of
the specific text of Article 6 of the Mandate requiring the Government to
facilitate Jewish immigration and encourage close settlement by Jews on the
land. The Government was further required by Article 11 of the Mandate “to
introduce a land system appropriate to the needs of the country, having
regard, among other things, to the desirability of promoting the close
settlement and intensive cultivation of the land”. This article was a further
elaboration of Article 6 insofar as it related to close Jewish settlement on
the land. The uprooting of settlements and transfer of Jews by Britain from
any part of the Land of Israel would have defeated the purposes of Articles 6
and 11 of the Mandate and rendered these provisions without legal effect.
The rights of Jews
enshrined in Articles 6 and 11 did not lapse under international law with the
extinction of the Mandate on May 14-15, 1948. Neither did the prohibition
lapse on transferring Jews from the land on which the settlements had been
established. Under the principle of acquired legal rights, though the
international instrument upon which those rights were founded did indeed
expire, the rights themselves conferred on the Jewish People remained in force.
This principle of international law is now codified in Article 70(1)(b) of the
Vienna Convention on the Law of Treaties which states that “unless the treaty
otherwise provides or the parties otherwise agree, the termination of a treaty
under its provisions or in accordance with the present Convention... does not
affect any right, obligation or legal situation of the parties created through
the execution of the treaty prior to its termination”. Applying this provision
of international law to the Mandate for Palestine, the conclusion must be that
when international law recognized the Jewish right of immigration and right of
settlement in the Land of Israel, it also at the same time prohibited the
transfer of Jews from the land on which all settlements were established. This
prohibition represents the converse or flip side of the aforementioned rights.
This conclusion is
reinforced by the Rome Statute of the International Criminal Court, which
prohibits the transfer of persons from where they are lawfully present, unless
other grounds exist under international law for their expulsion. No such
grounds can exist for the expulsion of Jewish settlers living in Jewish
settlements in the Land of Israel.
It is also to be
noted that the rights of Jews to settle the Land of Israel under Articles 6
and 11 of the Mandate, the converse of which – as noted above – prohibits
their displacement, entered the legal system of Israel, at the conclusion of
the Mandate, by virtue of Article 11 of the Law and Administration Ordinance.
Articles 6 and 11 were modified only to the extent that account now had to be
taken of the changes brought about by the establishment of the State of
Israel. Thus it was now incumbent upon the Government of Israel – instead of
the Mandatory Government – to facilitate Jewish immigration and encourage
close Jewish settlement on the land and, conversely, not to uproot settlements
or transfer Jews from them.
The Supreme Court
of Israel, in several judgments handed down in the first years of Jewish
independence, overturned the previous interpretation of the British courts
during the Mandate period that the provisions of the Mandate for Palestine did
not form part of the domestic law unless specifically incorporated by a
separate law to that effect. However, it was decided in effect by the Supreme
Court that the provisions of the Mandate were indeed part of the
constitutional infrastructure of Israel unless otherwise changed by the
legislature of the Jewish state.
The Jewish right of
settlement in the Land of Israel could not be exercised in the regions of
Judea and Samaria during the 19 year period that Jordan illegally occupied and
annexed them. The same was true of Gaza during the period of Egypt’s
occupation of that region. Each Arab country was in a state of war with Israel
and barred entry of Jews to the areas of the Land of Israel under its control.
All that was completely changed by the Six Day War in June 1967, when
effective control over Judea, Samaria and Gaza passed into the hands of
Israel. The right of settlement in those regions of the Land of Israel, which
had been temporarily suspended or dormant, was now revived to its full extent.
The Government of Israel did not hesitate to establish new Jewish settlements
in the liberated Jewish lands that had never legally belonged to either Jordan
or Egypt as recognized sovereigns under international law. The Government was
now placed, as already noted above, in the same position as the British
Mandatory Government. It could only encourage Jewish settlements; it could
neither disband them nor transfer Jews from where they had a perfect right to
live.
In addition to the
recognition of Jewish immigration and settlement rights derived from the
Mandate, with the implicit ban it imposed on uprooting settlements and
transferring Jews from the land on which the settlements were built, the
Knesset passed the Law of Return on July 5, 1950, which reinforced those same
rights and further embedded them into the constitutional law of Israel. The
Law of Return is applicable not merely to the State of Israel but to all of
the Land of Israel, as is evidenced by the use of the Hebrew word eretz
(in the form artza, meaning “to the land”) rather than medina
(“state”), to describe the destination of the Jewish immigrant and Jewish
settler in the land. The distinction between eretz and medina,
which indicates the territorial scope of application of the Law of Return, was
made in the Law itself, as well as in the Explanatory Note when the bill was
first tabled in the Knesset on June 27, 1950. If the Law of Return had been
limited to the State alone, the Law when enacted would have used the term
medina instead of eretz. The Government of Israel cannot therefore
deprive Jews of their right to live in Gaza or Samaria, both of which, without
doubt, constitute integral parts of Eretz Israel. Any steps taken to
evict Jews from their homes and settlements in these two regions would be
unconstitutional, even if a special law that is now being prepared by the
Sharon Government is passed by the Knesset authorizing their displacement,
since that law would completely contradict the most fundamental law of the
State, namely, the Law of Return which enshrines the right of Jewish
settlement in Eretz Israel. This right indeed represents the essence of
Zionism and built the State of Israel. If settlements are uprooted and Jews
are forced to evacuate them, this would be a repudiation of Zionism and a
staggering blow to the highest value of the Jewish state.
The Jewish right of
return and of settlement in the Land of Israel is not only embodied in the Law
of Return and in Article 6 of the Mandate, it is also expressly referred to in
the Proclamation of Independence of the State of Israel, which declares in its
opening paragraphs that “Eretz Israel was the birthplace of the Jewish
People... [who] never ceased to pray and hope for their return to it and for
the restoration in it of their political freedom”. In light of the foregoing
constitutional instruments, any action taken by the Government of Israel to
oust Jews from any region of the Land would not only violate these instruments
of Israeli law, but such action can be justly construed as impairing the
sovereignty of the State over all areas of the Jewish National Home under the
rule of the State, whether included in it formally or not. Such an action
would constitute the crime of treason under Section 97(a) of the Penal Code.3
In fact, the mere intention to withdraw from any area under the sovereignty of
the State of Israel is enough to constitute the crime of treason under
sections 97(b)4 and 1005
of the Penal Code.
It is the author’s
original thesis6 that sovereignty over all of
the Land of Israel or Palestine was vested in the Jewish People as a direct
result of the adoption of the San Remo Resolution by Britain, France, Italy
and Japan on April 24-25, 1920. This resolution, which combined the Balfour
Declaration with the Smuts Resolution, the precursor of Article 22 of the
Covenant of the League of Nations, was actually an international agreement
between these four powers that was inserted into the three opening paragraphs
of the Preamble of the Mandate for Palestine and later confirmed by a total of
52 member-nations of the League of Nations, as well as separately by the
United States in a 1924 treaty with the United Kingdom.7
Inasmuch as the
State of Israel is the Sovereign Power over Gaza and Samaria, inheriting that
status from the Jewish People when the Jewish state was proclaimed in May
1948, any withdrawal from these areas which would automatically result in the
loss of Israel’s de facto sovereignty over them is an act tantamount to
the crime of treason under section 97(b). If the Unilateral Disengagement Plan
is implemented, all the members of the Government of Israel, including Prime
Minister Sharon, could be charged with this crime. Such a charge would
actually be officially made if Israel had an Attorney-General who truly
applied the provisions on treason found in the Penal Code and warned the
members of the Government in advance of what they were about to do. A warning
of this kind would undoubtedly put an end to the Disengagement Plan. The law
on treason would also be strengthened enormously if the Supreme Court of
Israel contributed its part to the enforcing of the provisions of this law, as
it failed to do in regard to the Israel-PLO Agreements.
Territorial
withdrawal from any area of the State of Israel has now been made legally
possible by a new law enacted on January 26, 1999, known as the
“Administration and Law Arrangements Law”. The purpose of this law was to make
it more difficult for the Government to withdraw from the Golan Heights, but
the law applies theoretically to any other area within the State of Israel as
well. Prior to the enactment of this law, there was no constitutional
procedure to effect any territorial withdrawal from the State of Israel. Under
the terms of this law, a government decision rescinding the application of the
law, jurisdiction and administration of the State of Israel to a particular
area of the State, such as the Golan Heights, must receive the approval of at
least 61 members of the Knesset, i.e., an absolute majority, and also be
approved in a referendum before there can be any territorial withdrawal. The
new law, however, does not apply to areas of the Land of Israel outside the
formal borders of the State of Israel; hence, it does not apply to Judea,
Samaria and Gaza. What that means is that even if 61 or more Knesset members
approve a government decision to withdraw from Gaza and Northern Samaria under
the Disengagement Plan, Knesset approval still would not suffice to prevent
the application of the penal provisions of treason to those directly
responsible for any territorial withdrawal from these two areas of the Land of
Israel that lie outside the borders of the State, but which are under the
sovereignty of the State. As a result, a charge of treason could still be
brought against Prime Minister Sharon for any withdrawal under the
Disengagement Plan, despite the existence of the new law.
One Israeli law
often cited to claim that Sharon’s Disengagement Plan is illegal is the Basic
law: Human Dignity and Liberty, which affirms that the right of a person to
his property is a fundamental human right recognized by the State of Israel as
a Jewish and democratic state, for which there shall be no violation (section
3 of the Law). While there is no doubt that if the Disengagement Plan is
implemented, there will naturally be a violation of the fundamental human
rights of all the people who own property in Gaza and Northern Samaria –
rights to real estate, for instance, will expire on the day people are
evacuated from their homes, and any movable property left behind will be
considered ownerless – the Basic Law: Human Dignity and Liberty cannot be
invoked to block the Plan in court because this law applies only to areas
within the borders of the State. Any appeal to the Supreme Court based upon
this law will be rejected because the Government will claim that persons who
live in so-called “occupied territory” have no permanent rights in the
immovable property located outside the borders of the State. The Government of
Israel was legally obliged – under a law called the Area of Jurisdiction and
Powers Ordinance – to apply the laws of the State to all areas of the Land of
Israel repossessed by the IDF in the Six Day War of June 1967. However, the
Eshkol Government evaded its legal responsibility at the time and, instead of
doing what it was supposed to do, brought in new legislation to give it the
option to decide which areas of the Land of Israel would be annexed and which
would not be. This new legislation was Section 11B of the Law and
Administration Ordinance.8 Since Gaza and
Northern Samaria were never formally incorporated into the State, the Basic
Law: Human Dignity and Liberty does not apply to the property rights of the
residents of Yesha who will be evicted and transferred under the Disengagement
Plan. They will have to rely primarily on the Law of Return which does apply
to Judea, Samaria and Gaza and also on the right of settlement which extends
to the whole of the Land of Israel, including areas not included in the State.
Another point of
contention that has arisen in the debate on the Sharon Disengagement Plan is
the legality of any military order given to Jewish soldiers of the IDF (or to
Jewish policemen of the Israel Police) to evacuate Jews from their homes in
the Land of Israel. In the opinion of the author, such an order will be
patently illegal in that it will violate the right of every Jew under the Law
of Return to live peacefully on the soil of the homeland. It will be an order
that runs counter to the highest values of the Jewish state, to settle and
build up the Land of Israel. This value is implanted not only in Israeli
constitutional law, but also in Jewish religious law. In the Book of Numbers,
the fourth book of the Torah (chapter 33, verse 53), God instructs Moses to
tell the Israelites as they are about to enter the Land of Canaan from the
plains of Moab, by the Jordan, opposite Jericho, “to drive out the inhabitants
of the land and dwell therein; for unto you have I given the land to possess
it”. This was a clear divine commandment to settle the Land of Israel in
addition to driving out the Canaanites, a commandment that was carried out in
the main. This commandment to settle the whole of the Land of Israel, and not
leave it in the hands of other nations, was adduced by the great 13th
century halakhic scholar, Nahmanides (Rabbi Moses Ben Nahman or RaMBaN)
in the work he compiled with the charming title “Positive Commandments which
the RaMBaM [Maimonides] Overlooked”. RaMBaM, the most outstanding halakhic
authority in the medieval period, had omitted this commandment in his own
work, Sefer Ha-Mitzvot, but he did include a commandment on war, known
in Hebrew as milhemet mitzva, which imposed a duty on the Jewish People
to go to war rather than let an enemy take over any part of the Land of
Israel. This evidently means that Jews are forbidden under any circumstances
to voluntarily surrender the land to non-Jews. Sharon’s Disengagement Plan is
therefore in clear conflict with what halakha rules must be done to
prevent the Land of Israel from being ruled by non-Jews, as interpreted by two
of the greatest rabbinical authorities on the subject.9
From the standpoint of halakha, therefore, it is forbidden to uproot
Jewish settlements in the Land of Israel and concomitantly, to transfer Jews
from the land. Former Chief Rabbis Avraham Shapira and Mordechai Eliyahu did
not misinterpret halakha when they, together with other prominent
rabbis, called upon soldiers and policemen to refuse an order to dismantle
Jewish settlements in Gaza and Northern Samaria.
In reaction to the
call of the rabbis, it was preposterous for Professor Mordechai Kremnitzer, a
criminal law expert, known as a great exponent of freedom of expression and
human rights, to say that Rabbi Shapira had committed a crime (supposedly that
of sedition),10 when in fact it is Sharon and
the members of his Government who will be committing a greater crime if and
when they drive out Jews from their homes. If Kreminitzer’s advice had been
followed in ancient times, some of the prophets of ancient Israel (such as
Nathan, Elijah and Jeremiah inter alia) would have been prosecuted for
the very same crime.
The plan to
transfer Jews from legally established settlements in the Land of Israel is
not merely a “painful concession”, as the Prime Minister has put it. It is a
clear violation of law, both secular and religious, and a severe blow to the
true ideals of Zionism. Those who are responsible for this illegal plan must
one day be held accountable, not only in the public and political arenas, but
also in a court of law when a true Zionist Government comes to power and
initiates prosecution.
Endnotes
|
1 |
Ha`Aretz, November 15, 2004. |
|
2 |
See the case of Beit Sourik Village Council vs. The
Government of Israel [HCJ 2056/04]. |
|
3 |
The text of section 97(a) of the Penal Code reads as
follows: “A person who, with intent to impair the sovereignty of the
State, commits an act calculated to impair such sovereignty, is liable to
the death penalty or to imprisonment for life.” |
|
4 |
Section 97(b) states: “A person who, with intent
that any area be withdrawn from the sovereignty of the State or placed
under the sovereignty of a foreign state, commits an act calculated to
bring this about, is liable to the death penalty or to imprisonment for
life.” |
|
5 |
Section 100 provides: “A person who does any act
evincing one of the intentions referred to in sections 97, 98 and 99 is
liable to imprisonment for ten years.” |
|
6 |
In a speech in the US (February 1991), later
reprinted as an article, Prof. Yuval Ne`eman, basing himself on a paper
written for him by the author, who then served as his adviser in matters
of international law affecting Eretz Israel, stated in regard to
Israel’s legal foundation: “[At a conference held in] San Remo (April
1920) [attended by] the Principal Allied Powers...the decision [was taken
to] establish a separate territory of Palestine...it is from this moment
at San Remo that the State of Israel draws its legal existence.
Sovereignty over the area of Palestine was thereby bestowed on the Jewish
people.” See the article by Prof. Ne`eman, “How to Save ‘the Peace
Process’”, Global Affairs, The American Journal of
Geopolitics, Washington, DC, Fall 1992, p. 85. The author of
the present article developed his thesis on sovereignty a few years
earlier. |
|
7 |
See the author’s forthcoming book on the Legal
Foundation and Borders of Israel under International Law, which discusses
in detail the question of sovereignty over Palestine and the Land of
Israel. See the Introduction of this book, “Legal Rights and Title of
Sovereignty of the Jewish People to the Land of Israel and Palestine Under
International Law”, published separately as Policy Paper No. 147, Ariel
Center for Policy Research, April 2003. See also an earlier article in
Nativ, Nov. 2001, Issue 6, pp. 18-19, “Jewish Legal Rights and
Title to the Land of Israel and Palestine” (Heb.), and its English
synopsis. |
|
8 |
The text of section 11B provides: “The law,
jurisdiction and administration of the State shall extend to any area of
Eretz-Israel designated by the Government by order.” |
|
9 |
In regard to what halakha says about the Land
of Israel, see the author’s, “A Petition to Annul the Interim Agreement”,
Policy Paper no. 77, Ariel Center for Policy Research, January 1999, pp.
86-92. |
|
10 |
Jerusalem Post, October 22, 2004. |
