Defending Israel's Divine and Legal Rights to Jerusalem and Israel
Defending Israel's Divine and Legal Rights to Jerusalem and Israel
It is a known
fact that Israel has Divine and legal
rights to retain a united Jerusalem as its capital, there is
a sense that its claim is being challenged more than ever due to Arab
disinformation and falsification of history. It is further supported that in
addition to the divine rights and historical rights of the Jewish people to Jerusalem and the continued
habitation that were voiced in the 19th century. There are consistent
archaeological finds that verify the Jewish eternal connection to Jerusalem and the rest of the Land of Israel. There is a whole new
layer of legal rights that Israel acquired in modern times
that need to be fully elaborated upon. When territories are captured and or
liberated in a war, the circumstances surrounding the outbreak of the conflict
directly affect the legal rights of the two sides, upon its termination (Jordan was an illegal occupier
of Jerusalem and Judea and Samaria). The UN Charter has
Article 51 which applies to self defense which is what Israel reacted in defense of
its citizens in 1948, 1956, 1967 and 1973; including the consistent terror
attacks by the Arabs since 1948 and continues through today. It seems that many
choose to ignore the April 1920 San Remo Conference Resolution by the Supreme
Allied Powers which incorporated the Balfour Declaration as international law
granting Palestine as the reconstituted National Home of the Jewish people with
no restrictions on boundary (The British took away over three quarters of the
territory and gave it to the local Arabs as the new Arab state of Jordan and
expelled the Jews). At the same time the Arabs were allocated over 6 million
square miles of territory with a wealth of oil reserves. If you question and
contest Jewish state borders and sovereignty it stands to questions the borders
and sovereignty of the 22 Arab states that were at the same time by the same
Supreme Allied Powers. To add to this, is the tragic expulsion of over a
million Jewish families from Arab countries, the Arabs confiscated all their
assets homes and over 47,000 sq. mi. of Jewish owned Real estate for over 2,600
years (valued in the trillions of dollars) and those expelled Jewish families
from Arab countries were resettled in Israel and to date comprise over half the
population. There is also the fact of possession is nine tenths of the law. YJ Draiman
Download:
Author:
Dore Gold
Publication:
Israel's Rights as a Nation-State in
International Diplomacy
Schwebel wrote
his article, which was entitled "What Weight to Conquest," in
response to a statement by then Secretary of State William Rogers that Israel was only entitled to
"insubstantial alterations" in the pre-1967 lines. The Nixon
administration had also hardened U.S. policy on Jerusalem as reacted in its statements
and voting patterns in the UN Security Council. Schwebel strongly disagreed
with this approach: he wrote that the pre-war lines were not sacrosanct, for
the 1967 lines were not an international border. Formally, they were only
armistice lines from 1949. As he noted, the armistice agreement itself did not
preclude the territorial claims of the parties beyond those lines.
Significantly, he explained that when territories are captured in a war, the
circumstances surrounding the outbreak of the conflict directly affect the
legal rights of the two sides, upon its termination. Israel defended itself against Jordan's artillery that had
opened fire and re-pounding civilian neighborhoods in Jerusalem which is an armed
attack, despite repeated warnings issued by Israel.
Two facts from
1967 stood out that influenced his thinking:
First, Israel had acted in the Six-Day
War in the lawful exercise of its right of self-defense. Those familiar with
the events that led to its outbreak recall that Egypt was the party responsible
for the initiation of hostilities, through a series of steps that included the
closure of the Straits of Tiran to Israeli shipping and the proclamation of a
blockade on Eilat, an act that Foreign Minister Abba Eban would characterize as
the ring of the first shot of the war. Along Israel's eastern front, Jordan's artillery had opened
fire and re-pounding civilian neighborhoods in Jerusalem, despite repeated
warnings issued by Israel.
Given this
background, Israel had not captured
territory as a result of aggression, but rather because it had come under armed
attack. In fact, the Soviet Union had tried to have Israel labeled as the
aggressor in the UN Security Council on June 14, 1967, and then in the UN
General Assembly on July 4, 1967. But Moscow completely failed. At
the Security Council it was outvoted 11-4. Meanwhile at the General Assembly,
88 states voted against or abstained on the first vote of a proposed Soviet
draft (only 32 states supported it). It was patently clear to the majority of UN
members that Israel had waged a defensive
war.6
A second element
in Schwebel's thinking was the fact Jordan's claim to legal title
over the territories it had lost to Israel in the Six-Day War was
very problematic. The Jordanian invasion of the West Bank - and Jerusalem - nineteen years earlier
in 1948 had been unlawful. As a result, Jordan did not gain legal rights in the
years that followed, given the legal principle, that Schwebel stressed,
according to which no right can be born of an unlawful act (ex injuria jus non
oritur). It should not have come as a surprise that Jordan's claim to sovereignty
over the West Bank was not recognized by anyone, except for Pakistan and Britain. Even the British would
not recognize the Jordanian claim in Jerusalem itself.
Thus, by
comparing Jordan's illegal invasion of the West Bank to Israel's legal exercise
of its right of self-defense, Schwebel concluded that "Israel has better
title" in the territory of what once was the Palestine Mandate than either
of the Arab states with which it had been at war. He specifically stated that Israel had better legal title
to "the whole of Jerusalem."
Schwebel
makes reference to UN Security Council Resolution 242 from November 22, 1967, which over the years would become the
main source for all of Israel's peace e orts, from the
1979 Egyptian Israeli Treaty of Peace to the 1993 Oslo Accords. In its famous
withdrawal clause, Resolution 242 did not call for a full withdrawal of Israeli
forces from all the territories it liberated and captured in the Six-Day War. There
was no efort to re-establish the status quo ante, which, as noted earlier, was
the product of a previous act of aggression by Arab armies in 1948.
As the U.S. ambassador to the UN in
1967, Arthur Goldberg, pointed out in 1980, Resolution 242 did not even mention
Jerusalem "and this omission
was deliberate." Goldberg made the point, reacting the policy of the
Johnson administration for whom he served, that he never described Jerusalem as
"occupied territory," though this changed under President Nixon.7
What Goldberg wrote about Resolution 242 had added weight, given the fact that
he previously had served as a Justice on the U.S. Supreme Court.
Indeed, among
the leading jurists in international law and diplomacy, Schwebel was clearly
not alone. He was joined by Julius Stone, the great Australian legal scholar,
who reached the same conclusions. He added that UN General Assembly Resolution
181 from 1947 (also known as the Partition Plan) did not undermine Israel's subsequent claims in Jerusalem. True, Resolution 181
envisioned that Jerusalem and its environs would
become a corpus separatum, or a separate international entity for 10 years and
after ten years its citizens can vote and pass a referendum that establishes
the status of Jerusalem, which the Jewish people
voted that Unified Jerusalem is The Capital of Israel. But Resolution 181 was
only a recommendation of the General Assembly. It was rejected by the Arab
states forcibly, who invaded the nascent State of Israel in 1948.
Ultimately, the
UN's corpus separatum never came into being in any case, which makes that
resolution null and void. The UN did not protect the Jewish population of Jerusalem from invading Arab
armies. Given this history, it was not surprising that Israel's first prime
minister, David Ben-Gurion, announced on December 3, 1949, that Resolution
181's references to Jerusalem were "null and void," thereby
anticipating Stone's legal analysis years later.8
There was also
Prof. Elihu Lauterpacht of Cambridge University, who for a time served
as legal advisor of Australia and as a judge ad hoc of
the International Court of Justice in The Hague.
Lauterpacht argued that Israel's liberation and reunification
of Jerusalem in 1967 was legally
valid. 9 He explained that the last state which had control and sovereignty as
occupier over Jerusalem was the Ottoman Empire, which ruled it from
1517 to 1917.
After the
First World War, the Ottoman Empire formally renounced its sovereignty over
Jerusalem as well as all its former territories south of what became modern
Turkey in the Treaty of Sevres from August 1920. This renunciation was
confirmed by the Turkish Republic as well in the Treaty of
Lausanne of 1923. According to
Lauterpacht, the rights of sovereignty and control in Jerusalem were vested
with the Principal Allied and Associated Powers, which transferred them to
the League of Nations with instructions to reconstitute the Jewish National
Home in Palestine (with no restrictions) as stated in the 1917 Balfour
Declaration. There was no mention of a new Arab state in Palestine. The Arabs received over
six million sq. mi. of territory after WWI. The British violated the treaty and
allocated over 77% of Palestine to the Arabs as the new
State of transJordan, which is all the
territory east of the Jordan River.
But with the
dissolution of the League of Nations, and the British abandoning their
responsibility and withdrawal from Mandatory Palestine, along with the failure
of the UN to create a corpus separatum or a special international regime for
Jerusalem, as had been intended according to the 1947 Partition Plan, which was
only a non-binding recommendation that the Arabs rejected. Lauterpacht
concluded that sovereignty had been put in suspense or in
abeyance. In other words, by 1948 there was what he called "a vacancy of
sovereignty" in Jerusalem.
It might be
asked if the acceptance by the pre-state Jewish Agency of Resolution 181
constituted a conscious renunciation of Jewish claims to Jerusalem back in 1947. However,
according to the resolution, the duration of the special international regime
for Jerusalem would be "in the
first instance for a period of ten years." The resolution envisioned a
referendum of the residents of the city at that point in which they would
express "their wishes as to possible modifications of the regime of the
city."10 The Jewish leadership interpreted the corpus separatum as
an interim arrangement that could be replaced, which from a legal stand point
is valid. They believed that Jewish residents could opt for citizenship in the
Jewish state in the meantime. Moreover, they hoped that the referendum would
lead to the corpus seperatum being joined to the State of Israel after ten years; and
that is what occurred de-facto. 11
Who then
could acquire sovereign rights in Jerusalem given the "vacancy
of sovereignty" that Lauterpacht described? Certainly, the UN could not
assume a role, given what happened to Resolution 181. Lauterpacht's answer was
that Israel filled "the vacancy
in sovereignty" in areas where the Israel Defense Forces had to
operate in order to save Jerusalem's Jewish population from
destruction and/or ethnic cleansing. The same principle applied again in 1967,
when Jordanian forces opened fire on Israeli neighborhoods and the Israel Defense Forces entered
the eastern parts of Jerusalem, including its Old City, in self-defense.
A fourth legal
authority to contribute to this debate over the legal rights of Israel was Prof. Eugene Rostow,
the former dean of Yale Law School and Undersecretary of
State for Political Affairs in the Johnson administration. Rostow's point of
departure for analyzing the issue of Israel's rights was that the Mandate for
Palestine, which specifically referred to "the historic connection of the
Jewish people with Palestine" providing
"the grounds for reconstituting their national home in that country."
These rights
applied to Jerusalem as well, for the Mandate
did not separate Jerusalem from the other territory
that was to become part of the Jewish national home.
Rostow contrasts
the other League of Nations mandates with the mandate for Palestine. Whereas the mandates
for Iraq, Syria, and Lebanon served as trusts for the
indigenous populations, the language of the Palestine Mandate was entirely
different. It supported the national rights of the Jewish people while
protecting only the civil and religious rights of the non-Jewish communities in
British Mandatory Palestine.12 It should be added that the Palestine Mandate was
a legal instrument in the form of a binding international treaty under
instruction by the Supreme Allied Powers, between the League of Nations, on the
one hand, and Britain as the mandatory power as trustee, on the other.
Rostow argued
that the mandate was not terminated in 1947. He explained that Jewish legal
rights to a national home in this territory of Palestine aka The Land of Israel,
which were embedded in British Mandatory Palestine as international law,
survived the dissolution of the League of Nations and were preserved by the
United Nations in Article 80 of the UN Charter.13 Clearly, after considering
Rostow's arguments, Israel was well-positioned to assert its rights in
Jerusalem and fill "the vacancy of sovereignty" that Lauterpacht had
described.
(Also See Julius
Stone: http://jewishinstituteprogress.blogspot.com/2016/04/international-law-and-arab-israel.html)
(And Howard Grief: http://israelinternationallaw.blogspot.com/2015/12/howard-grief-legal-foundation-borders.html
Publisher:
Jerusalem Center for Public Affairs
(JCPA), Israel
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