In a historical trial carefully « forgotten » by the media, the 3rd Chamber of the Court of Appeal of Versailles declares that Israel is the legal occupant of the West Bank*.
When I first learned that the Court of Appeal of Versailles ruled that West bank settlements and occupation of Judea Samaria by Israel is unequivocally legal under international law, in a suit brought by the Palestinian Authority against Jerusalem’s light rail built by French companies Alstom and Veolia, that received no media coverage, I decided to put to work my years of Law Studies in France, and I meticulously analyzed the Court ruling.
To my astonishment, pro-Israeli media did not cover it either. The few who mentioned the case did not have any legal background in French law to understand the mega-importance of the ruling, and, as a few lefty English speaking Israeli websites reported it, they thought that it was a decision strictly pertinent to the Jerusalem light rail. It’s not.
To make sure I did not overestimate my legal abilities and that I wasn’t over optimistic – as usual-, I submitted my analysis and the Court papers to one of the most prominent French lawyer, Gilles-William Goldnadel, President of Lawyers without borders, to receive his legal opinion. He indeed validated my finding. Then I decided to translate it to English, and it will soon be submitted to Benjamin Netanyahu thru a mutual friend.
First and foremost, the Versailles Court of Appeals had to determine the legal rights of Palestinians and Israelis in West Bank. Their conclusion: Palestinians have no right – in the international legal sense – to the region, unlike Israel, who is legitimately entitled to occupy all land beyond the 67 line.
The context :
In the 90s, Israel bid for the construction of the Jerusalem light rail. The tender was won by French companies Veolia and Alstom. The light rail was completed in 2011, and it cross Jerusalem all the way to the east side and the « occupied territories » (more about this term later).
Following this, the PLO filed a complaint with the High Court (Tribunal de Grande Instance) of Versailles France, against Alstom and Veolia, because according to PLO, « the construction of the tram is illegal since the UN, the EU, many NGOs and governments consider that « Israel illegally occupy Palestinian territories ».
The quest for the International Legislation to establish the rights of each party.
In order to rule whether the light rail construction was legal or not, the court had to seek the texts of international law, to examine international treaties, in order to establish the respective rights of the Palestinians and the Israelis.
And to my knowledge, this is the first time that a non-Israeli court has been led to rule on the status of the West Bank.
Why is this an historical ruling: it is the first international case since the declaration of the State of Israel in 1948
It is the first time since the establishment of the State of Israel in 1948 that an independent, non-Israeli court has been called upon to examine the legal status of West bank territories under international law, beyond the political claims of the parties.
Keep in mind though, that the Court’s findings have no effect in international law. What they do, and it’s of the utmost importance, is to clarify the legal reality.
The Versailles Court of Appeal conclusions are as resounding as the silence in which they were received in the media: Israel has real rights in the territories, its decision to build a light rail in the West Bank or anything else in the area is legal, and the judges have rejected all the arguments presented by the Palestinians.
The Palestinian arguments
The PLO denounces the deportation of the Palestinian population, and the destruction of properties in violation of international regulations. Relying on the Geneva and Hague Conventions and the UN resolutions, it considers that the State of Israel is illegally occupying Palestinian territory and is pursuing illegal Jewish colonization. Thus, construction of the light rail is itself illegal (1).
The PLO adds that the light rail construction has resulted in the destruction of Palestinian buildings and houses, the almost total destruction of Highway 60, which is vital for Palestinians and their goods, and has conducted many illegal dispossessions. Therefore, several clauses from the annexed Regulations to the October 18, 1907 Fourth Hague Convention were violated (2).
Finally, the PLO alleges that Israel violates the provisions relating to the « protection of cultural property » provided for in Article 4 of the Hague Convention of May 14, 1954, Article 27 of the Hague Regulations of 1907, Article 5 of the Hague Convention IX of 1907, and Article 53 of Additional Protocol No. 1 to the Geneva Conventions.
The Court of Appeal does not deny the occupation, but it destroys one after another all the Palestinian arguments
Referring to the texts on which the PLO claim is based, the Court of Appeal considers that Israel is entitled to ensure order and public life in the West Bank, therefore Israel has the right to build a light rail, infrastructure and dwellings.
Article 43 of the Fourth Hague Convention of 1907 stipulates that « The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety ».
Israeli occupation does not violate any international law
« The Palestinian Authority misread the documents, they do not apply to the occupation »
The Court explains that the Palestinian Authority misinterprets the texts and they do not apply to the occupation:
First of all, all the international instruments put forward by the PLO are acts signed between States, and the obligations or prohibitions contained therein are relevant to States. Neither the Palestinian Authority nor the PLO are States, therefore, none of these legal documents apply.
Secondly, said the Court, these texts are binding only on those who signed them, namely the « contracting parties ». But neither the PLO nor the Palestinian Authority have ever signed these texts.
Propaganda is not international law
The Court, quite irritated by the presented arguments, boldly asserted that the law « cannot be based solely on the PLO’s assessment of a political or social situation.«
Humanitarian law was not violated
The PLO mistakenly refers to the wrong legal document because the Hague Convention applies in case of bombing.And … « Jerusalem is not bombed. »
The PLO invokes the violation of humanitarian law contained in the Geneva and Hague Conventions.
But on the one hand, says the judges of the Court of Appeal, international conventions apply between States and the PLO is not a State: « the International Court of Justice has indicated that [the Conventions] only contain obligations for the States, and that individual have no rights to claim the benefit of those obligation for themselves ».
Then the Court says that only the contracting parties are bound by international conventions, and neither the PLO nor the Palestinian Authority have ever signed any of them.
The Court draw the conclusion that the PLO is mistakenly referring to the wrong legal document because the Hague Convention applies in case of bombing. And … « Jerusalem is not bombed.«
The PLO and the Palestinians were dismissed
The PLO cannot invoke any of these international conventions, said the Court.
« These international norms and treaties » does not give the « Palestinian people that the PLO says he represents, the right to invoke them before a court.«
(1) The PLO relies on article 49 of the Fourth Geneva Convention of August 12, 1949, which states that « the occupant power may not deport or transfer part of its own civilian population in the Territory he occupies », and article 53, which states that « the occupant Power is prohibited from destroying movable or immovable properties belonging individually or collectively to private people, to the State or to public authorities or social or cooperative organizations, except in cases where such destruction is rendered absolutely necessary for military operations ».
(2) The PLO refers to the Fourth Geneva Convention of August 12, 1949:
Article 23 (g), which prohibits « the destruction or seizure of enemy properties except in cases where such destruction or seizure are imperatively ordered for the necessities of war. »
Article 27 according to which « in the sieges and bombardments, all necessary measures must be taken to spare as much as possible the buildings devoted to worship, the arts, sciences, charitable institutions, historical monuments, and hospitals … »
Article 46 which states that « private property can not be confiscated ».
News is breaking of a huge win in France. It’s a technical case but essentially a court has confirmed what most of us know to be true. It concerns the building of the light rail project in Jerusalem by Alsthom, Veolia and another firm.
The PLO/PA sued these firms in France indicating that they should not have taken the project.
The court has basically said Israeli “occupation” is not illegal and orders PLO/PA to pay court costs to Alsthom, Veolia, & another firm. The court costs add up to 90,000 euros.
The Court of Appeal of Versailles (PLO c / Alstom and Veolia) concludes that the Israeli occupation is not illegal
Here is a study that friends of Israel must be preserved carefully in their archives. France is not neutral in the conflict, and the judgment of the Court is of particular importance.
Veolia and Alstom built, following a call for tenders, the Jerusalem tramway through the city to the east, into the territories claimed by the PLO and the Palestinian Authority.
The PLO considers that the State of Israel is illegally occupying Palestinian land and continues an illegal Jewish settlement in the construction of the tram and is itself unlawful.
The legal arguments of the PLO removed one after another
Organization for the Liberation of Palestine has therefore embarked on a lengthy trial that just ended before the Court of Appeal of Versailles, March 13, 2013, by an overwhelming so inconvenient conclusions were spent hammering totally under silenced by the mainstream media to inform you loaded independently.
The occupation of Palestinian territory is not illegal
The PLO is based on international law and considers that Israel illegally occupies Palestinian territory and is pursuing an illegal Jewish settlement. The construction of the tram and itself illegal. In support, the PLO alleges infringement of several texts:
Article 49 of the Fourth Geneva Convention of 12 August 1949 which states that “the Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.”
Article 53, which states that “it is forbidden for an occupying power to destroy the real or personal property belonging individually or collectively to private persons, the State or public authorities and social or cooperative organizations except where such destruction is rendered absolutely necessary by military operations. “
The PLO added that the construction has caused destruction, virtually removing the 60 vital road for Palestinians and their goods, removal of tracks and paths, and expropriations. There had therefore been a violation of several articles from the Regulations annexed to the Fourth Hague Convention of 18 October 1907:
Article 23 (g) which prohibits “destroy or seize the enemy’s property except where such destruction or seizure be imperatively demanded by the necessities of war”
Article 27 that “in sieges and bombardments all necessary steps must be taken to spare as far as possible buildings dedicated to religion, art, science or charitable purposes, historic monuments, hospitals …”
and Article 46, which states that “private property can not be confiscated.”
Finally, the PLO says Israel violates the provisions relating to “the protection of cultural property” under Article 4 of the Hague Convention of 14 May 1954, Article 27 of the Hague Regulations of 1907, the Article 5 of the Hague Convention IX of 1907 and Article 53 of Additional Protocol 1 to the Geneva Conventions.
Niet! meets the Court of Appeal, without denying the occupation, said Israel was within its rightsbecause “… the authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country “(Article 43 of the 4th Convention The Hague 1907).
The occupation does not violate any international law
And the Court did not stop there … It explains why the occupation of the West Bank by Israel does not violate any international law.
The PLO, explaining that the occupation is illegal, says Israel is violating:
Articles 49-6 and 53 of the Geneva Convention,
Articles 23, 27 and 46 of the Regulations annexed to the Fourth Hague Convention of 1907,
Article 4 of the Hague Convention of 14 May 1954
Article 27 of the Hague Regulations of 1907,
Article 5 of the Convention IX of the 1907 Hague
and Article 53 of Additional Protocol 1 to the Geneva Conventions.
Not at all! meets the Court of Appeal of Versailles , which states that:
First, all of these texts are international acts signed between states and the obligations or prohibitions they contain are addressed to States. Neither the Palestinian Authority nor the PLO are States, none of these texts do not apply to them .
Second, the Court still remember, these texts are addressed to “the Contracting Parties”, ie both parties have signed – and again, neither the PLO nor the AP never signed these documents .
Propaganda does not replace the law
An irritated anything, the Court also added that the French law … “can not be based solely on the discretion [the PLO] a political or social situation.”
Humanitarian law is not violated either
The PLO, which then tries to hide the humanitarian standards, is once again sent into the ropes by the court, who said that while the Geneva Conventions and the Hague Convention are applicable in French law .
But “the International Court of Justice stated that they (the agreements) contain only obligations on states, and that the right of individuals to rely on was not mentioned” , only the parties contractors are bound by those conventions, and the Hague Convention of 1907 are not applicable because … Jerusalem is not bombed!
The PLO and the Palestinians can not rely on any international texts
Finally, the Court said, “the conventional international standards” do not give the “Palestinian people shows that the PLO represent the right to plead before a court. ”
PLO condemned AFD
The Court of Appeal sentenced the AFPS (Association France Palestine Solidarity) and the PLO to pay 30,000 euros to Alstom, 30,000 euros from Alstom Transport, and 30 000 Veolia Transport.
Landmark French Ruling on West Bank Construction and International Law
In an important but largely ignored case, a French Court of Appeals in Versailles ruled last week that construction of a light rail system in the Israeli-controlled West Bank by a French company does not violate international law. In doing so, the court sided with many of the arguments long made against the blanket application of the relevant provisions of the Geneva Conventions to Israeli settlements. National courts rarely if ever address such issues, and thus the decision is important both for its rarity and for what it says.
In this post, I’ll address issues relevant to the substance – Israel’s presence in the West Bank. In the next post I’ll deal with the “Kiobel” issues raised by the case – corporate liability, the value of American ATS cases, and so forth. I should note at the outset that what follows is based on a rough translation of the opinion and my vague French; I would be grateful for corrections on matters of language that I have misapprehended. I venture forward because it is an important decision that deserves attention, yet has been met by complete silence by international legal scholars.
The Jerusalem Light Rail, which began running last year after a long period of construction, links the Western part of the city with the parts occupied by Jordan prior to and annexed by Israel after the 1967 War. The project was widely criticized by pro-Palestinian groups, as was the participation of French rail companies in the project. Along with a variety of political pressure and boycott activities, a Palestinian group sued the French-based multinational conglomerate Alstom Transport for its role in in the project. The case was dismissed below in 2011, and the Court of Appeals upheld the decision last week.
Crucially, the Court held that only the Government of Israel, and not private parties, can violate the relevant provisions of the Geneva Conventions. The arguments that Israeli communities in the West Bank violate international law start with Art. 49(6) of the Fourth Geneva Convention, which provides that “The Occupying Power shall not deport or transfer its civilian population into the territory it occupies.” The provision was also relied on heavily in the lawsuit. The Court ruled that 49(6) only speaks to and applies to action by the Israeli government (“the Occupying power”), and does not regulate Alton’s activities in the occupied territory.
This is an extraordinarily important holding in light of the decades old-debate about the meaning of 49(6) in the context of Israeli civilian migration into the West Bank. It is in direct opposition to the political and international law position on settlements. In the standard narrative, any migration of Israeli Jews past the Green Line, or the expansion of their residences and communities once there, is a war crime. Thus when private citizens decides to buy or build a house across the Green Line, or even expand an existing one, it is a war crime.
Moreover, Israeli citizens who migrate to the West Bank are often said to be guilty of war crimes themselves as aiders-and-abettors. The Versailles decision would seem to reject such a position.
This conventional reading of 49(6) as generally banning Jewish settlements is disconnected from the text, which only speaks of “transfers” carried out by the Government. Some scholars, including myself, have long maintained that private movement of persons is in no way covered by 49(6), and the Court apparently adopts this position (though I am unclear how much of a role domestic legal principles played). Now one might say the government is always “involved” – roads, security, zoning, etc., but ubiquitous “background” roles do not trigger the state action doctrine in U.S. constitutional law, and it is not clear why they would under international law. (On the other hand, if one gets a package bus/light rail ticket, it would be an unusual literal case of “transfer” into occupied territory.)
Indeed, the French case would be a strong one for inferring governmental role, since the defendant worked under contract with Israeli governmental entities. My understanding of the Court’s opinion is a little fuzzy here, but it seems they say contractual privity is not enough to trigger 49(6) either. This would certainly make it inapplicable to the vast majority of Israeli settlers (not all, necessarily, since 49(6) is ultimately a case-by-by-case factual question.
The Court goes on the reject the notion that the relevant norms have become customary or jus cogens and apply without the particular textual restrictions of 49(6).
Israel’s critics have long claimed that “everyone agrees” that all “settlements” (a term referring to all Israeli activity in the West Bank, at least that benefits Jews) clearly violates international law, and that only Israeli apologists could believe the arguments to the contrary. I assume the Versailles Court of Appeals won’t be accused of being unduly sympathetic to the Jewish State.
Indeed, many might share my surprise on such a decision coming from a European court, especially given the supposed uniformity of views on the underlying legal issues. Perhaps two factors may explain the surprising decision: this is not an international court, but an ordinary municipal one, and it was an important French industrial concern, rather than Israel, in the dock. International lawyers may what could positively be described as professional or scientific knowledge of the matter, or more cynically as guild orthodoxy. Judges unversed in these verities might see things differently. And of course, here international law is being used against important and powerful domestic interests.
The plaintiffs could still appeal to the Cour de Casssation, which however is not obligated to hear the appeal.
French Court of Appeal rules that Israel is the legal occupier of West Bank aka Judea and Samaria By Jerry Gordon
h/t Imre Herzog. Here’s a stunner. M. Jean Patrick Grumberg of the French blog Dreuz made a useful discovery and somehow the Israel and world media didn’t cover.
The Arab PA brought suit in France against French companies building the light rail system in Jerusalem. The Arab PA lost in a decision that ruled that Israel is the legal occupant of Judea and Samaria.
So, why isn’t the Israeli and world media hopping all over this? Perhaps because they are intimidated by the threat of Islamic violence as their god Allah granted possession of any conquered lands in perpetuity. Which will never be held up in a Western court that doesn’t recognize sharia law ruling based on fiction rather than fact. But then the pack of Israel’s enemies gathering in Paris for tomorrow’s hate-fest doesn’t care about the facts and law. That would include that self -promoting ‘stalwart defender of Israel’, Secretary of State Kerry. Read this important French court case findings in this Dreuz blog post by the estimable M. Grumberg.
Grumberg, a French lawyer by training wrote:
In a historical trial carefully « forgotten » by the media, the 3rd Chamber of the Court of Appeal of Versailles declares that Israel is the legal occupant of the West Bank*.
When I first learned that the Court of Appeal of Versailles ruled that West bank settlements and occupation and liberation of Judea Samaria by Israel is unequivocally legal under international law, in a suit brought by the Arab Palestinian Authority against Jerusalem’s light rail built by French companies Alstom and Veolia, that received no media coverage, I decided to put to work my years of Law Studies in France, and I meticulously analyzed the Court ruling.
To my astonishment, pro-Israeli media did not cover it either. The few who mentioned the case did not have any legal background in French law to understand the mega-importance of the ruling, and, as a few lefty English speaking Israeli websites reported it, they thought that it was a decision strictly pertinent to the Jerusalem light rail. It’s not.
To make sure I did not overestimate my legal abilities and that I wasn’t over optimistic – as usual-, I submitted my analysis and the Court papers to one of the most prominent French lawyer, Gilles-William Goldnadel, President of Lawyers without borders, to receive his legal opinion. He indeed validated my finding. Then I decided to translate it to English, and it will soon be submitted to Benjamin Netanyahu thru a mutual friend.
First and foremost, the Versailles Court of Appeals had to determine the legal rights of Arab-Palestinians and Israelis in West Bank. Their conclusion: Arab-Palestinians have no right – in the international legal sense – to the region, unlike Israel, who is legitimately entitled to occupy all land beyond the 67 line.
The context : In the 1990's, Israel bid for the construction of the Jerusalem light rail. The tender was won by French companies Veolia and Alstom. The light rail was completed in 2011, and it cross Jerusalem all the way to the east side and the « occupied liberated territories » (more about this term later).
Following this, the Arab PLO filed a complaint with the High Court (Tribunal de Grande Instance) of Versailles France, against Alstom and Veolia, because according to Arab PLO, « the construction of the tram is illegal since the UN, the EU, many NGOs and governments consider that « Israel illegally occupy Arab-Palestinian territories ».
The quest for the International Legislation to establish the rights of each party. In order to rule whether the light rail construction was legal or not, the court had to seek the texts of international law, to examine international treaties, in order to establish the respective rights of the Arab-Palestinians and the Israelis.
And to my knowledge, this is the first time that a non-Israeli court has been led to rule on the status of the West Bank aka Judea and Samaria.
Why is this an historical ruling: it is the first international case since the declaration of the sovereign State of Israel in 1948
It is the first time since the re-establishment of the State of Israel in 1948 that an independent, non-Israeli court has been called upon to examine the legal status of West bank aka Judea and Samaria territories under international law, beyond the political claims of the parties.
Keep in mind though, that the Court’s findings have no effect in international law. What they do, and it’s of the utmost importance, is to clarify the legal reality.
The Versailles Court of Appeal conclusions are as resounding as the silence in which they were received in the media: Israel has real rights in the territories, its decision to build a light rail in the West Bank aka Judea and Samaria or anything else in the area is legal, and the judges have rejected all the arguments presented by the Arab-Palestinians.
The Arab-Palestinian arguments
• The Arab PLO denounces the deportation of the Arab-Palestinian population, and the destruction of properties in violation of international regulations. Relying on the Geneva and Hague Conventions and the UN resolutions which is non-binding and has no legal standing, it considers that the State of Israel is illegally occupying Arab-Palestinian territory and is pursuing illegal Jewish colonization. Thus, construction of the light rail is itself illegal (1).
• The Arab PLO adds that the light rail construction has resulted in the destruction of Arab-Palestinian buildings and houses, the almost total destruction of Highway 60, which is vital for Arab-Palestinians and their goods, and has conducted many illegal dispossession's. Therefore, several clauses from the annexed Regulations to the October 18, 1907 Fourth Hague Convention were violated (2).
• Finally, the Arab PLO alleges that Israel violates the provisions relating to the « protection of cultural property » provided for in Article 4 of the Hague Convention of May 14, 1954, Article 27 of the Hague Regulations of 1907, Article 5 of the Hague Convention IX of 1907, and Article 53 of Additional Protocol No. 1 to the Geneva Conventions.
The Court of Appeal does not deny the occupation, but it destroys one after another all the Arab-Palestinian arguments Referring to the texts on which the Arab PLO claim is based, the Court of Appeal considers that Israel is entitled to ensure order and public life in the West Bank aka Judea and Samaria, therefore Israel has the right to build a light rail, infrastructure and dwellings.
Article 43 of the Fourth Hague Convention of 1907 stipulates that « The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety ».
Israeli occupation does not violate any international law
« The Arab-Palestinian Authority misread the documents, they do not apply to the occupation »
The Court explains that the Arab-Palestinian Authority misinterprets the texts and they do not apply to the occupation: • First of all, all the international instruments put forward by the Arab PLO are acts signed between States, and the obligations or prohibitions contained therein are relevant to States. Neither the Arab-Palestinian Authority nor the Arab PLO are States, therefore, none of these legal documents apply.
• Secondly, said the Court, these texts are binding only on those who signed them, namely the « contracting parties ». But neither the Arab PLO nor the Arab-Palestinian Authority have ever signed these texts.
Propaganda is not international law The Court, quite irritated by the presented arguments, boldly asserted that the law « cannot be based solely on the Arab PLO’s assessment of a political or social situation.«
Humanitarian law was not violated
The Arab PLO mistakenly refers to the wrong legal document because the Hague Convention applies in case of bombing. And … « Jerusalem is not bombed. »
The Arab PLO invokes the violation of humanitarian law contained in the Geneva and Hague Conventions. • But on the one hand, says the judges of the Court of Appeal, international conventions apply between States and the Arab PLO is not a State: « the International Court of Justice has indicated that [the Conventions] only contain obligations for the States, and that individual have no rights to claim the benefit of those obligation for themselves ».
• Then the Court says that only the contracting parties are bound by international conventions, and neither the Arab PLO nor the Arab-Palestinian Authority have ever signed any of them.
• The Court draw the conclusion that the Arab PLO is mistakenly referring to the wrong legal document because the Hague Convention applies in case of bombing. And … « Jerusalem is not bombed.«
The Arab PLO and the Palestinians were dismissed The Arab PLO cannot invoke any of these international conventions, said the Court. « These international norms and treaties » does not give the « Arab-Palestinian people that the Arab PLO says he represents, the right to invoke them before a court.«
An Israeli settler looks at the West Bank - Judea and Samaria settlement of Ma'ale Adumim on the eastern outskirts of Jerusalem. (Photo: AP)
Editors Note: Jewish history in the Land of Israel is contiguous, spanning more than 3,000 years. Its capital has been in Jerusalem since King David’s rule in 1010 BCE. There were periods of occupation by Romans, Byzantines and Sasanids, Arabs, Crusaders, the Ayyubid dynasty and Mamluk Sultanate, and the Ottoman Empire – each leaving a footprint.
These occupations came and went across periods of greater and lesser Jewish habitation – but never without Jewish communities from those days to these.
UN Security Council Resolution 2334, adopted on 2 January 2017, asserts that land acquired by Israel in the course of defending itself in the 1967 Six Day War is to be considered “occupied Palestinian territory.” The resolution has no legal status, but it bears heavily on the politics of our time – politics grounded neither in history nor in law, but rather in anti-Semitism or the pigeon-hearted fear that drives countries to curry favor with Arab and Islamic potentates or terrorists.
The Editors at inSIGHT are departing from our usual pattern of writing and publishing in this column to balance the scales at least a bit to put history and law in their rightful place. For this, we go back to a time before this current political crush but anticipating it in important ways.
Professor Eugene V. Rostow (1913-2002) served as dean of Yale Law School, Undersecretary of State for Political Affairs, and director of the US Arms Control Agency. He co-authored UN Security Council Resolution 242 and was prolific on the role of international law in determining how and where Jews could settle. It is not a spoiler to say his view was “everywhere.” The following – and articles that will appear in the near future – are excerpts from his authoritative 1980 Yale International Law Journal article, “Palestinian Self-Determination: Possible Futures for the Unallocated Parts of the British Mandate.”
Who, today, even knows what the “British Mandate for Palestine” was a mandate/requirement/demand to do? Read on, and you will and realize how much current anti-Israel diplomacy and international lawfare have departed from history, law and justice.
The Soviet Interest
The exploitation of Arab hostility to the Balfour Declaration, the Palestine Mandate, and the existence of Israel has been a major weapon in the Soviet campaign to dominate the Middle East. The Soviet Union's use of this tactic is in itself a considerable psychological feat, since the Russians provided Israel with decisive help during the wars of Israeli independence in 1948 and 1949. The anti-Israel card is not the only asset in the Soviet Union's Middle East hand, but among the Middle Eastern masses it has been trumps.
The goal of the Soviet campaign in the Middle East is to control the oil, the seas, and the air space of the region, and to substitute Communist or Communist-oriented governments for royal and other traditional regimes. Once such control is achieved, the Soviet Union believes, it will be possible for it to outflank Europe and force the United States to dismantle NATO, withdraw its forces, and leave Europe to Soviet domination…
In pursuit of this objective, the Soviet Union has been active from Morocco to Pakistan, and throughout Africa as well, taking advantage of other regional conflicts, many of which it fomented itself. But the attack on the legitimacy of Israel has been the strongest and most effective tool of Soviet strategy in the Middle East. Since the early 1950's, the Soviet Union has actively supported four major Arab wars against Israel, as well as guerrilla raids, terrorist attacks, and the like beyond counting. The Palestine Liberation Organization (PLO) was planned and established in the 1960’s. In recent years, and especially since November 1973, when Yasir Arafat was first invited to the Soviet Union as guest of the Soviet government, the Soviet Union has played an active – one might say a dominant – role in its activities….
The Soviet calculation has been that Arab dependence upon the Soviet Union would grow as the war against Israel involved and radicalized more and more of the Muslim states of the region. President Sadat's decision to make peace with Israel, following Egypt's defeat in the 1973 war, was a serious setback for the Soviet Union. The USSR has moved with great energy to offset and reverse that disappointment, undertaking bold moves in Ethiopia, Somalia, Angola, Sudan, Yemen, Iran, Afghanistan, and the Persian Gulf to strengthen its position. And it has pressed the so-called Palestinian issue with increased emphasis to prevent peace between Israel and its neighbors.
From the beginning, the Soviet Union actively supported the movement to overthrow the Shah of Iran in 1978 and 1979, both through its own efforts and through those of the PLO and the Italian Communist Party… [T]he Soviet move against Iran was also closely linked to the Soviet campaign against Israel. Under the Shah, Iran was the principal bastion of American influence in the area, Israel’s close ally, a positive influence in Jordan, and an ultimate counterweight, should such action become necessary, against Iraq and Syria. Iran's relation with Israel was one of the reasons the PLO participated so vigorously in the revolt against the Shah.
After the Camp David Agreements between Israel and Egypt were signed in 1978, the Soviet propaganda drums beat with new intensity to encourage their repudiation, or at least their frustration. Policy followed suit…. Among these means, the so-called "Palestine" question is the most effective. Beneath the surface of the propaganda and guerrilla activities, there is a genuine political and human problem – a difficult but not insoluble problem of principle and of accommodation. But the real Palestinian problem bears no relation to the distorted version that has been imposed on the governments, press, and public opinion of the West….
Distorting the Problem
Throughout Europe and the United States, in the General Assembly and the Security Council of the United Nations, and in many other resonant forums, there is an increasingly shrill chorus of demands that Israel be more "flexible” and that the United States "force" Israel to acquiesce in the establishment of a third Palestinian state – an Arab state in the territories of Palestine generally known as the West Bank (including Jerusalem) and the Gaza Strip. It is expected that such a state would be under the control of the PLO. This view is now supported – nominally, at least – by most governments in Western Europe.
On March 1, 1980, the United States came perilously close to accepting the European position by voting in the Security Council in favor of a Resolution calling on Israel to dismantle all the West Bank settlements it had established since June 1967. President Carter, it would seem, was ready to vote for this measure, but not for the corresponding provisions about Jerusalem. In the early months of 1980, it was widely rumored that France had persuaded Great Britain and West Germany to back an effort in the Security Council to modify Resolution 242, adopted after the Six Day War in 1967, and the only feasible basis for efforts to make peace between Israel and its neighbors. The amendment the French are urging would favor "self-determination for the Palestinian people" – a formula intended to pave the way for a third Palestinian state.
As the Middle Eastern troubles of Western policy have become more ominous, with Iran in anarchy and the Soviet Union in control of Afghanistan, the West has been drawn more and more feverishly to the idea of doing something "positive" for the Arabs by getting Israel to accept a second Arab Palestinian state on the West Bank and the Gaza Strip. Such a concession on the part of Israel is necessary, the advocates of this course contend, in order to make it possible for the Arab states of the region to join the United States in resisting the further expansion of Soviet power…
The campaign for a state that is more and more explicitly a PLO state including the West Bank and the Gaza Strip is irrational from the point of view of Western security interests. The emergence of such a state would weaken Israel, the strongest military power in the Middle East, and the most reliable ally of the West in the area, by necessity and conviction. But the irrationality of the idea has not yet affected the momentum of European, American, and Egyptian policy.
They’re Not “Arab” Territories
The legal assumption behind this frantic impulse is that the territories in dispute are in some sense "Arab" territories held by Israel only as military occupant. Once that premise is accepted, it seems to follow that the natural path to peace would be for Israel to evacuate the area, and to allow the population to decide whether to establish a new state or to federate with Jordan.
But the premise from which the familiar prescription derives is erroneous as a matter of history and international law. The only possible geographic, demographic, and political definition of Palestine is that of the Mandate, which included what are now Israel and Jordan as well as the West Bank and the Gaza Strip.
The term "Palestinian" applies to all the peoples who live or have a right to, live in the territory – Jews, Christians, and Muslims alike. Thus, the West Bank and the Gaza Strip are not "Arab" territories in the legal sense, but territories of the Mandate that have never been recognized as belonging to Israel or to Jordan… For reasons that remain compelling, [U.N.] Security Council Resolution 242 prescribes that Israel is under no obligation to withdraw from the West Bank or the Gaza Strip until Jordan makes peace.
Despite its great political appeal, the idea of "self-determination" for all "peoples" is a puzzling and complex factor in the political life of an international system based on the existence and sanctity of states. Most states include more than one people: Spain has Basques and Catalans; France, Bretons; Belgium, Walloons and Flemish; Canada a considerable French-speaking population. The Soviet Union [was] of course a combination of many peoples, widely different in language, religion, and culture. Almost all the African states include a number of tribes.
The United Nations Charter lists self-determination as one of the aspirations of the organization, to be sought by political means, but not by the international use of force. The Charter has been generally interpreted to forbid international help for movements of secession based on the slogan of self-determination. The United States fought the bloodiest war of the nineteenth century to resist the plausible idea of self-determination for the South.
The Mandate
The controversy over the future of the West Bank and the Gaza Strip can be understood only as part of the history of the Palestine Mandate, and the international law of Mandates which lies behind and informs the Security Council Resolutions purporting to govern the process of establishing peace between Israel and its neighbors.
…The Mandate system of the League was the ancestor of the Trusteeship provisions of the United Nations Charter. It was viewed with high hope as an instrument of justice. The founders of the League established the Mandate system in order to liberate peoples who had lived in the colonies and protectorates of empire, and to launch their new states on a footing of dignity and equality. Mandates, they explained, were "trusts,” indeed "sacred trusts.”
Most of the Mandates were trusts for the benefit of their inhabitants. In the case of Palestine, the trust of the Mandate had two sets of beneficiaries.
The decision to establish the Mandate, the document said, recognized "the historical connection of the Jewish people with Palestine and ... the grounds for reconstituting their national home in that country.” Unlike other Mandates, the Palestine Mandate was established under the authority of paragraph 8 of Article 22 of the Covenant, which authorized the League Council explicitly to define the terms of a Mandate when the broad general statement of paragraph 1 was insufficient.
The purpose of the Palestine Mandate was "the establishment in Palestine of a national home for the Jewish people, it being clearly understood that nothing should be done which might prejudice the civil and religious rights of existing non-Jewish communities in Palestine, or the rights and political status enjoyed by Jews in any other country.” The Mandatory government was required to facilitate Jewish immigration and "close settlement" in Palestine, subject to the proviso that the Mandatory government could "postpone or withhold” the application of these (and related) articles of the Mandate in the area of Palestine east of the Jordan River. This was done when Britain established Transjordan as an autonomous province of the Mandate in 1922. But Jewish rights of immigration and close settlement in the West Bank and the Gaza Strip, established by the Mandate, have never been qualified.
