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Our Legal Rights and Title of Sovereignty to the Land of Israel
under International Law
Howard Grief
This paper is the introduction of
a forthcoming book on the legal rights and title of sovereignty of the
Jewish people to the Land of Israel and Palestine under international
law. These rights were recognized as inhering in the Jewish people
when the highest representatives of the Great Powers that had defeated
Germany and Turkey in World War I met at the Paris and San Remo Peace
Conferences in 1919 and 1920. Their purpose was to design a global
political and legal settlement to dispose of the conquered territories
that formerly belonged to the dissolved German and Turkish Empires.
Under this settlement, the whole of Palestine on both sides of the
Jordan was reserved, if not exclusively, for the Jewish people as the
Jewish national home, in recognition of their historical connection
with thatarea, dating from the Patriarchal period. Its boundaries were
to be delineated in accordance with the historical and Biblical
formula “from Dan to Beersheba” which denoted the entire Land of
Israel. The Arabs were accorded national rights in Syria, Mesopotamia
and Arabia, but not in Palestine. The British government as Mandatory,
Trustee and Tutor was charged with the obligation to create an
eventual independent Jewish state in Palestine, and for this purpose
only it could exercise the attributes of sovereignty vested in the
Jewish people.
The Palestine aspect of the
global settlement was recorded in three basic documents that led to
the founding of the modern State of Israel: the San Remo Resolution of
April 25, 1920, combining the Balfour Declaration with the general
provisions of Article 22 of the Covenant of the League of Nations; the
Mandate for Palestine confirmed on July 24, 1922 and the
Franco-British Boundary Convention of December 23, 1920, supplemented
by the Anglo-American Convention of December 3, 1924 respecting the
Mandate for Palestine.
The British Government repudiated
the solemn obligation it undertook to develop Palestine gradually into
an independent Jewish state. This began with the Churchill White Paper
of June 3, 1922, and culminated with the MacDonald White Paper of May
17, 1939. The US aided and abetted the British betrayal of the Jewish
people by its abject failure to act decisively against the 1939 White
Paper despite its own legal obligation to do so under the 1924 treaty.
The UN Partition Resolution of November 29, 1947 illegally recommended
the restriction of Jewish legal rights to a truncated part of
Palestine. Astonishingly, the State of Israel has contributed to the
denial of Jewish legal rights to the entire country by illegally
transferring substantial areas of Judea, Samaria and Gaza to the PLO,
representing a mythical Arabic-speaking Gentile nation called
“Palestinians” who falsely pretend to hold the real title of
sovereignty over the country.
Despite all the subversive
actions to smother and destroy Jewish legal rights and title of
sovereignty to the entire Land of Israel, they still remain in full
force by virtue of the Principle of Acquired Rights and the Doctrine
of Estoppel that apply in all legal systems of the democratic world.
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The Status of Palestine/the Land of Israel and Its Settlements
under Public International Law
Talia Einhorn
This paper discusses the
establishment of Israel, the state of the Jewish people, and the
rights of Jews to settle Palestine/the Land of Israel under public
international law. It explains why the Arab claim that there is a
legal right to a separate Arab state to be established in Judea,
Samaria and the Gaza Strip (“Yesha”), and the further claim that
Jewish settlement of Yesha is forbidden, have no basis in
international law.
Nonetheless, Israel has come
under incessant international pressure to recognize the “rights” of
the Arab people and to uproot the Jewish settlements in Yesha by
deporting hundreds of thousands of Jews and transferring them to tiny,
pre-1967 Israel. The international pressure has been supplemented by
internal pressure, exerted by Israeli Jewish citizens brought up to
prefer the comradeship among nations and universal values – even when
those were shattered by reality – to the basic needs of Jewish
national existence. The pressures from within and without made a part
of Israel’s Jewish population lose heart and start doubting the
justifiability of the Zionist endeavor itself. The Oslo agreements and
the Arab violence which has become part and parcel of the so-called
“peace process” since its inception, bear ample testimony to that.
It is submitted, however, that
international law does not compel Israel to agree to the establishment
of a sovereign Arab state west of the Jordan river. Neither is Israel
obliged to undo nor freeze the Jewish settlement of Yesha. Indeed, the
dangers emanating from an Arab terrorist state should make all lovers
and pursuers of true peace – not just a “peace process” – wary of such
a “solution” to the Arab-Israeli conflict.
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The Limited Conflict
Trap
Yehuda Wegman
The
security doctrine of the State of Israel, which is derived from its
geo-strategic situation, has always emphasized a short war and a rapid
victory over the enemy. In contrast, according to the doctrine of the
“limited conflict”, which was promulgated in the IDF as soon as the
“peace process” began, terror dictates ongoing warfare for the State
of Israel. At the time when “peace” was chosen as an alternative
strategy to security and it was proclaimed that “in the age of
missiles, strategic depth no longer has any value,” the IDF, too,
adopted as its new combat doctrine the US army’s rules of “operation
other than war” (OOTW), which was translated into Hebrew as “limited
conflict” in which the “weak” defeats the “strong” by attrition.
In
the process of “attrition”, the “strong” absorbs intensifying blows
from terror and guerrilla acts that are mainly directed at its
unprotected civilian interior. The accumulation of such blows over
time is aimed at fostering a social – not military – turnabout in the
“strong” party, which becomes convinced that it is not really
“strong”. The inability to defend itself leads the “strong” party to
surrender its principles in return for an end to the attacks. The
“limited conflict” doctrine portrays the IDF as the “strong” side,
which absorbs and reacts, and the Palestinians as the “weak” side,
which initiates and attacks. Amazingly, the “limited conflict”
doctrine, which, as mentioned, was accepted by the IDF, has no answer
to the question of how in the Israeli-Palestinian reality the
“strong”, attacked side is supposed to prevail over the “weak” one.
The
glaring flaw of the new “doctrine” is that it is based on a reality
and on modes of thought that were derived from other arenas, which
bear no similarity to the Israeli-Palestinian arena. Analysis of the
“limited conflicts” that other peoples have dealt with shows that in
contrast to the Israeli case, there is not a single civilian in
France, Britain, and the United States whose daily life was impaired
by the “limited conflict” that his country’s army waged overseas.
After an extended period of fighting according to the rules of the
“limited conflict” and at a heavy price in blood, both the political
echelon and the IDF were forced to give up on the “attrition” and
undergo a conceptual revolution, which brought them to the notion of
“high intensiveness” and aggressiveness that proved – again – to be
the only answer to terror.
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Weighing the Risk to the IDF Soldiers
in Their Efforts to Protect the Enemy’s Civilians (II)
Eliav Shochetman
In the course of the
IDF’s activity in Jenin, which was conducted in the framework of the
Defensive Shield operation (Spring 2002), warnings were received that
if a ground operation was carried out, it would entail a heavy price
in dead and wounded. Yet then-Defense Minister Binyamin Ben-Eliezer
rejected the proposal to bomb the area in question from the air so as
to avoid casualties, and ordered that the ground operation be carried
out.
In this operation,
thirteen IDF soldiers were killed and many were wounded. The defense
minister’s justification for his order was that harming Palestinian
civilians had to be avoided at all costs, even if it meant harm to IDF
soldiers. In fact, all the civilian residents of the Jenin refugee
camp were given an advance warning to evacuate the camp, which many of
them indeed did.
This article aims to
show that under the circumstances, the order that was given to the
IDF, despite the warnings, did not accord with the common rules of
morality, the rules of international law, the rules of Israeli law, or
the tradition of Jewish law.
The IDF’s supreme
obligation is to protect the lives of its soldiers, and any military
operation that is capable of preventing such losses must be carried
out, even if enemy civilians are likely to be harmed (unintentionally)
as a result. The responsibility for any such harm lies with the terror
organizations that force Israel to fight and defend itself in the
first place, and in this case the IDF had discharged its obligation
with its advance warning to all the civilians to evacuate as quickly
as possible.
The first part of the
article (which appeared in the previous issue, No. 91) deals with the
aspect of the Jewish legal tradition, and the second part (appearing
in the present issue) focuses on the common rules of law, the
international rules of law, and the stipulations of Israeli law.
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Our World-Historical
Gamble
Lee Harris
The war with Iraq will constitute one of those momentous turning
points of history in which one nation under the guidance of a
strong-willed, self-confident leader undertakes to alter the
fundamental state of the world. It is, to use the language of Hegel,
an event that is world-historical in its significance and
scope. And it will be world-historical, no matter what the outcome
may be.
Such world-historical innovations transcend the conceptual categories
of the old world, and call into existence an entirely novel set of
categories. Each one of them, by its very nature, is a crossing of the
Rubicon, from which there is no turning back, but only a going forward
– and a going forward into the unknown. This means that we must take a
hard look at even our most basic vocabulary – and think twice before
we rush to apply words like “empire” or “national self-interest” or
“multi-lateralism” or “sovereignty” to a world in which they are no
longer relevant.
Since the events of 9/11 the policy debate in the United States has
been primarily focused on a set of problems – radical Islam and the
War on Terrorism, the conflict between Israel and the Palestinians,
and weapons of mass destruction in the hands of Saddam Hussein in
Iraq.
The liberal world system has collapsed internally: there is no longer
a set of rules that govern all the players. Such rules are
trans-cultural. They constitute the precondition of any politically
stable system, for without them there is the danger of cognitive
anarchy – a situation in which no one can any longer predict with
confidence what the others will do. This collapse of the well-ordered
liberal system has come about exclusively from the side of the Islamic
world. And the cause of this disruption is the lack of a sense of the
realistic on the part of certain elements in the Islamic world.
Indeed, this is the common thread that unites Iraq, Al Qaeda, and
Palestinian terrorism.
The threat that currently faces us comes from groups who have utterly
failed to create the material and objective conditions within their
own societies sufficient to permit them to construct, out of their own
resources, the kind of military organization and weaponry that has
constituted every previous kind of threat.
If we look at the source of the Arab wealth we find it is nothing they
created for themselves. It has come to them by magic, much like a
story of the Arabian nights, and it allows them to live in a feudal
fantasyland.
What Osama bin Laden and Saddam Hussein have in common is that their
power derives entirely from the fact that the West had committed
itself, in the aftermath of World War II, to a policy of not robbing
other societies of their natural resources simply because it possessed
the military might to do so. The quite unintended consequence of the
West’s conduct is: the prodigious funding of fantasists who are
thereby enabled to pursue their demented agendas unencumbered by any
realistic calculation of the risks or costs of their action.
Nothing but force can break these from their illusion. Not because
there is something wrong with them as a race, but simply because they
are acting like any other individual who has been permitted to live in
a dream world – they continue to fantasize.
The greatest threat facing us – and one of the greatest ever to
threaten mankind – is the collision of this collective fantasy
world of Islam with the horrendous reality of weapons of mass
destruction.
We now live in a world in which a state so marginal that it would be
utterly incapable of mounting any kind of credible conventional threat
to its neighbors or to anyone else – such a state could still
make a devastating use of a nuclear weapon that literally chanced
to come into its hands.
The act of violence need possess only a magical or fantasy
significance to the perpetrator in order to motivate him to perform
it. It need not bring him any other goal than the sense of achievement
in having brought it off.
And beyond this, there is even a danger of rogue states, unable to
maintain their domestic viability, degenerating into being merely
front organizations for the social force of radical Islam, much as
occurred in Afghanistan under the Taliban.
The motivations of those who want to murder us are not complicated: To
watch an American city go up into a fireball is its own reward.
The fantasy ideology of
radical Islam does not want the West to fulfill its will, but to cease
to exist. And to achieve this end, any historical catastrophe will do.
This is the lesson that 9/11 should teach us in dealing with the
fantasists of the Islamic world. A fantasy does not need to make any
sense – that is the whole point of having one.
They are not playing by the
same rules of realism that we are. And it is this that renders so much
public debate so historically dated.
The US must be willing to discard the Clausewitzian goal of making
another nation state merely fulfill its political will. It must in
fact be prepared to dismantle and reconstruct the other state, if,
like Iraq, its behavior poses a threat to the general international
system.
There is only one solution, and that is for the United States
consciously to adopt a policy of what might be tentatively called
neo-sovereignty.
At the heart of the dialectically emergent concept of neo-sovereignty
is a double standard imposed by the US on the rest of the world,
whereby the US can unilaterally decide to act, if need be, to override
and even to cancel the existence of any state or regime that proposes
to develop WMD, especially in those cases where the state or regime in
question has demonstrated its dangerous lack of a sense of the
realistic.
If any social order is to
achieve stability there must be, at the heart of it, a double standard
governing the use of violence and force. There must be one agent who
is permitted to use force against other agents who are not permitted
to use force.
In its role as neo-sovereign the United States, in pursuing its
selfish policy, is also forced to increase the general level of
security throughout the world.
If we are to teach others a sense of the realistic, it is imperative
that we not lose our own. We must not let our noble ideals betray us
into betraying our very ideals. The only way that these ideals will
find a place in the world of tomorrow is if we are prepared to defend
them today – and to defend them at whatever cost is required.
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Islam and Nazism
Paul Eidelberg and Will Morrissey
What links Islam to Nazism is the
ethos of jihad. For both Islam and Nazism, war is not merely a
means to an end: mere conquest. War for both is a moral imperative:
for the Nazi, to purge the world of racial impurity, for the Muslim,
to purge the world of religious impurity.
Both have or require an enemy:
for the Muslim the “infidel”, for the Nazi the “Jew”, The genocide
perpetrated by Muslims against the Armenians preceded the genocide the
Nazis perpetrated against the Jews.
Although literary Islam and
Nazism have profound differences, these are of little significance to
the victims of these militant doctrines. The one reduces human beings
to dhimmis, the other to slaves.
Although Islam forbids
what may be termed “personal” suicide, it exalts suicide (i.e.,
martyrdom) in the context and ethos of holy war. That Arab parents can
exult in their children being sacrificed as human bombs is surely a
throwback to paganism. But this paganism indicates that the sanctity
of human life is not a normative Islamic doctrine. Indeed, on page
after page of the Qur`an¸ unbelievers are consigned to Hell – Islam’s
crematoria.
Some scholars contend that what
is here imputed to Islam should in truth be imputed to “Islamism”.
They allege that Islamism, as distinct from Islam, twists Qur`anic
teachings to un- Qur`anic uses. The candid scholar will admit,
however, that the Qur`an lends itself to such twists, and much more
clearly so when viewed from the Shari`ah, Islamic law.
The only way to eliminate what is
misleadingly called Islamism is to change the political regimes that
now rule the Islamic world. The existing Islamic regimes are highly
unlikely to change (except for the worse) by means of internal forces
– “inside-out”. Only a comprehensive geopolitical strategy will
transform these regimes, “outside-in”.
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The Destruction of the
Jews of Jedwabne
Laurence Weinbaum
At the beginning of the
new millenium, an unprecedented national debate raged in Polish
society. The controversy was precipitated by the publication of the
book Neighbors by Jan Tomasz Gross that chronicled the
destruction of the Jews of Jedwabne at the hands of local Poles in
July 1941. A Polish government commission ultimately confirmed that
locals were indeed responsible for the slaughter at Jedwabne (and two
dozen other hamlets in the same area of Poland). The chilling
description of what happened to Jews in Jedwabne (which has since
become a synonym for killings by locals) is in some sense a
vindication of Jabotinsky’s grim prophecy about a looming catastrophe
about to befall the Jews of East Central Europe. The deep-rooted
hostility of the autochthonous population among whom the Jews
had lived for generations, and who saw Jews hindering their own
national development, posed a mortal threat to Jews, warned
Jabotinsky. In his work The Jewish War Front, penned shortly
before his death in 1940, Jabotinsky made clear, that even if Jews who
have been displaced from their homes and places of work do survive,
one could not expect that the people who have replaced them will
acquiesce to their return. Governments may be persuaded to uphold the
concept of civil equality – however, in practice this notion is doomed
to ruin. This scenario was played out after the war in Poland and the
rest of East Central Europe – where returning Jews were met with
antipathy, and often murderous violence. Jabotinsky’s detractors
focused on his undeniable failure to predict the outbreak of the war.
They also emphasize that at the end of the day it was the Nazis (not
“Germans”) who carried out the murders, not the autochthonous
populations. At worst, the “neighbors” were accomplices – not prime
perpetrators. But in the last decade, after the collapse of Communism
and with newfound access to archives buried beyond the now-rusted Iron
Curtain, we find that people of many nationalities were more than mere
accessories to the destruction of age-old Jewish communities. The
author takes pains to explain that the revelations about Jedwabne
notwithstanding, history is obviously more nuanced than many of us
would like to believe and the question of how Poles behaved during the
Holocaust resists simple explanations and sweeping generalizations.
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