The legal case for Judea and Samaria

Map of Mandate era Palestine, showing Israeli sovereignty over the area that was never legally superseded

The legal status for Israel’s possession of and settling in Judea and Samaria has been discussed here several times. Here are just a few posts that discuss this issue.

The question has come to the fore in the press again this week with two articles which rather complement each other. I will talk about the later article first because the second article forms an answer to it.

Isi Leibler in today’s Jerusalem Post says that it is crucial that Netanyahu form a coherent settlement policy in order to combat the rising delegitimization of Israel on the basis of its holding on to Judea and Samaria:

Netanyahu has a rare opportunity of developing a coherent policy strategy – which is currently lacking, particularly with regard to the settlements.

He has a better understanding of the world of diplomacy than any other Israeli politician. But heading a coalition government comprised of conflicting groups ranging from Tzipi Livni’s dovish Tnuah to Naftali Bennett’s hawkish Bayit Yehudi – not to mention the factions within the Likud itself – has made it extraordinarily difficult to develop a coherent strategy.

Besides this, Netanyahu faces ceaseless pressure from the Americans and Europeans, and is often intimidated by a rabidly hostile media and unduly influenced by fickle public opinion polls. These combined elements divert him from his course and result in paralysis, zigzagging and the implementation of contradictory policies and statements that benefit our adversaries and confuse our friends.

For example: Netanyahu condemns Mahmoud Abbas and the Palestinian Authority for their intransigence, incitement to hatred, calls for the demise of the Jewish state and criminal behavior. Yet, in order to placate the Americans and the dovish elements of his coalition, he frequently praises Abbas as a “genuine peace partner.”

But it is the absence of a coherent policy in relation to settlement construction which has most undermined our global status. On this explosive issue, over which there are serious and legitimate divisions within Israel, the prime minister’s inconsistencies have been a major contributing factor towards alienating our allies.

Netanyahu reassures right-wing elements that he will continue authorizing settlement construction. But in response to American pressure, settlement construction has largely been frozen. This erratic approach and repeated contradictory, ill-timed statements have heightened divisiveness within the country and enabled our adversaries to depict us as duplicitous.

[…]

Virtually the entire world is deluded into believing that settlements represent the principal obstacle to peace. In addition to making Israel appear dysfunctional and devious, our contradictory policies enable our enemies to blur the distinction between construction in the major settlement blocs and east Jerusalem, which will always remain part of Israel, and the isolated outposts and settlements located in heavily Arab populated areas within the disputed territories.

[…]

With the ongoing confrontation with the Americans, domestic party political considerations can no longer justify the government’s burying its head in the sand and avoiding this issue. To avert disaster, Netanyahu must now seize the moment to develop a coherent and consistent government policy.

He must strive, initially behind closed doors, to formulate a long-term strategy to be endorsed by leaders of the coalition. They should resolve, as a matter of policy, to commit to intensifying construction in those areas over the Green Line which would unquestionably be retained by Israel. But in isolated settlements primarily located in the disputed territories in Arab-populated areas, a status quo in relation to expansion should be maintained.

Adopting such a policy would deeply distress some of the most idealistic and Zionist elements in the country.

But nevertheless, even those who unreservedly support all aspects of the settlement enterprise and the legitimate right of Jews to live anywhere in the Land of Israel, must face the harsh realities confronting us and recognize that the time has come for clarity and tough decisions.

[…]

To persist with maximalist positions in this situation could threaten core security and other crucial areas where we are being pressured to make additional concessions.

For example, it is insufficient to merely demand that Israel maintain a presence in the Jordan Valley. We must also resist efforts to impose the 1949 armistice lines with minor adjustments. We must insist on adherence to UN Resolution 242, which refers to defensible borders. We must never concede to the division of Jerusalem.

The government must accept the daunting responsibility, set aside emotions and act rationally and pragmatically.

[…]

Regrettably, the Americans are promoting an Alice in Wonderland scenario based on the false premise that there is a Palestinian peace partner and are pressuring us into further unrealistic concessions that would threaten our security. This is compounded by Secretary of State John Kerry, who not so long ago described Syria’s Bashar Assad a as a “reformer”, now frenetically seeking to compensate for his dismal political failures by engineering a cosmetic peace settlement at Israel’s expense.

IF, WHEN negotiations collapse, we become the losers in the blame game, we could face devastating repercussions.

The potency of our adversaries should not be underestimated. It is highly unlikely that we will be able to accept the Obama administration proposals. The Boycott, Divestment and Sanctions movement has made massive progress in Europe, and is gaining ground amongst liberals and in academia in the US. Our enemies are determined to replicate the boycott against apartheid in South Africa and bring Israel to its knees.

We are dangerously isolated.

Netanyahu’s leadership qualities will now be put to the test. He has popular support and no real competitor, and is thus in a position to pressure his coalition leaders, Yisrael Beytenu’s Avigdor Liberman, Yesh Atid’s Yair Lapid, Bennett and Livni – as well as the hawks dominating his own Likud party – to work together in the national interest to craft common denominators for achieving a comprehensive strategic policy. This must be designed to enable us to stand firm and united, to confront the mounting international pressures facing us in the months ahead.

I am a great admirer of Isi Leibler and his clear-headed thinking. There is a lot to concur with in his article (read it all, the above is just an excerpt) including the possibility that Israel might need to evacuate some isolated settlements, much as I dislike the idea. But I found one sentence puzzling and contradictory which I will quote again:

IF, WHEN negotiations collapse, we become the losers in the blame game, we could face devastating repercussions.

There is no “if” about this. Negotiations with the Palestinians will collapse because they are inherently unable to accept a Jewish presence in the Middle East. And when they collapse, Israel will face the blame game. There is no “could” about it. It is a foregone conclusion. This being the case, why on earth should Israel give up anything, even its isolated settlements? To mangle an ancient proverb, if we are to be hanged (i.e. damned and isolated by the international community), it might as well be for a sheep (all of Judea and Samaria) as a lamb (i.e. only parts of Judea and Samaria).

World’s hypocrisy towards Israeli settlements

As if in response to the proposals put forward by Isi Leibler, Nadav Shragai, in a prescient article in Israel Hayom last week, showed us how teams of jurists have begun preparing “The legal case for Judea and Samaria“, something that is urgently needed not only to counteract international delegitimization but to counter Israel’s own incompetents, let alone its enemies, from within:

… Those roaming the halls of power worldwide — from the White House in the era of Barack Obama and John Kerry to the United Nations — have for years regarded the territories of Judea and Samaria as Palestinian territory that is currently under occupation.

The hostile attitude toward the settlement enterprise is a natural, direct derivative of this premise. If we were to make a gross generalization, the world has adopted the Palestinian narrative as it relates to the legal status of the territories. Even those who negotiate on behalf of the State of Israel, men and women who officially adhere to the party line that Judea and Samaria, the cradle of Jewish civilization and peoplehood, is not occupied territory, have long ceased to make this statement publicly, just as they haven’t even bothered to make use of a long list of legal and historical arguments that support this position.

While it may seem that this train has long left the station, we were surprised to suddenly learn that for months now a counterattack has been waged over “the historical, legal truth.” This is a campaign that is being waged by hundreds of jurists from Israel and abroad who aren’t making do with the usual “rights of our forefathers” or “Zionism” rejoinders which are now devoid of currency in the international arena and the High Court of Justice.

Last summer, right-wing organizations and settlers managed to bring together a number of highly regarded legal minds — including those who are not traditionally aligned with right-wing politics. These individuals set out on a mission to change the terminology and the legal discourse that the left, including groups like Peace Now, has assumed control of for quite some time.

The battle over the narrative

The so-called “new” jurists are really just dusting off old arguments that were first made and eventually accepted in the initial years following the Six-Day War. This new line of discourse categorically rejects the premise of “occupied territories.” The State of Israel did indeed conquer Judea and Samaria in 1967 as the result of a war of self-defense, but from a legal standpoint these territories are not occupied since the foreign power that held these territories between 1948 and 1967 — Jordan — did so illegally.

These jurists note that with the exception of Britain and Pakistan, the international community refused to recognize the Jordanian annexation of the West Bank. Therefore, the legal status of these territories is in dispute. From the standpoint of international law, there is an enormous difference between occupied territories and disputed territories.

Those who bolster this argument — and some jurists do indeed do this — with what is referred to as “the historic right of the Jewish people to sovereignty over the Land of Israel” add another legal statement in support of their case: “Demanding the right to this sovereignty, which supersedes any counter-demand by the Palestinians.”

[…]

The renaissance that the “new jurists” are trying to infuse into the discourse to make an Israeli case for Judea and Samaria has for years been proudly trumpeted by the Foreign Ministry on its web site. It has even been articulated into a codified doctrine by the former president of the Supreme Court, Meir Shamgar. This case rested on a number of international resolutions and historical facts that were almost wiped clean from the public record but in recent years have been resurrected by a number of organizations.

 Two of these groups, which began work just recently, are drawing the most attention. First, there’s the Regavim Institute’s Center for Zionism, Justice, and Society. For years, Regavim has provided assistance in court cases which hear petitions brought on by left-wing groups against settlements in Judea and Samaria. It even shocked the judicial system when it brought its own petition against “Palestinian outposts” in an attempt to defend Jewish settlement in these areas.

 The other organization is the Legal Forum for the Land of Israel, which was originally founded as a group dedicated to pursuing legal means to defeat the disengagement plan.

The inaugural convention held by the Center for Zionism took place a few weeks ago at the Mishkenot Sha’ananim event hall in Jerusalem. The occasion also featured the unveiling of an impressive new book that delves into property laws and international law in Judea and Samaria. The book is 560 pages long, and it includes a number of articles by renowned legal scholars like Prof. Haim Sandberg and Prof. Einhorn.

One of the most noteworthy articles that appeared in the book was written by Col. (res.) Daniel Reisner, an expert in international law and the former head of the international law department in the Military Advocate General’s Corps. Today, Reisner is a partner in the Herzog Fox Neeman law firm.

Reisner’s position is interesting not just because of his professional background, but also because he is a jurist who is not aligned with the political right and who recognizes that the Palestinians also have claims to Judea and Samaria.

In his article, Reisner expresses understanding for Israel’s formal position “because since the territories of Judea and Samaria were never a legitimate part of any Arab state, including the Kingdom of Jordan, it is impossible to determine that Israel is an occupier in Judea and Samaria in the accepted legal definition. What’s more is that the Jewish people have a historic, legal, and physical link to Judea and Samaria.”

[…]

“Even if it seems that the battle is lost, that doesn’t mean it’s a reason to give up on a real, genuine legal argument,” he said. “Israel didn’t conquer these territories from any state because Jordanian control of the West Bank was illegal. If Israeli control over Rachel’s Tomb in Bethlehem in 1967 was illegal because of the illegality of taking over a territory by force, then the Jordanian occupation of that same complex in 1948 suffers from exactly the same problem.”

“Conversely, if one claims that the Jordanian occupation of 1948 was legitimate because before that the territory wasn’t under the sovereignty of another state, then that just strengthens a similar Israeli argument,” he said.

From Jerusalem to Al-Khader

Reisner recommends that we do not take the simplistic approach of treating Judea and Samaria as a single, solitary entity.

“There is no uniform law that applies equally to Ramallah — where there was never a Jewish presence — and Hebron — where a constant Jewish presence spanning hundreds of years was cut short by a horrific massacre,” he said. “There is no uniform law that applies equally to Al-Khader, which was and remains an exclusively Arab village, and the settlements of nearby Gush Etzion, which like Rachel’s Tomb was in sole Jewish control before the War of Independence. And of course there is no uniform law that applies equally to the Old City of Jerusalem, the historic site of two Jewish temples, and the neighborhood of Abu Dis nearby.”

[…]

If there is a legal case to be made, why don’t the state’s negotiators use it in the talks?

“Because inside the negotiating room it’s almost irrelevant. International law has a relatively marginal role to play in Israeli-Palestinian agreements. The bottom line is the one that both sides need to live with. Legal arguments help you. They give you an internal anchor, but in negotiations it is almost never a winning argument. In any event, a legal claim is never weakened or nullified because it is up to people to either make the claim or not make the claim. If you have a truth and you believe in it, speak up!”

Do the political opinions of jurists who are participating in the negotiations or the opinions of prosecutors have an effect on their legal positions?

Reisner: “I don’t know.”

Stop apologizing

Alan Baker, an attorney and a member of the Levy Committee which was formed in 2012 to investigate the legal status of the outposts and the settlements and which came to the conclusion that Judea and Samaria are not occupied territories, echoes much of what Reisner has to say.

Baker, a former legal advisor in the Foreign Ministry who also served as ambassador to Canada, heads a newly formed group of experts in international law which has already written to Kerry and EU foreign policy chief Catherine Ashton in protest of their “mistaken and misleading” positions. [Ed.’s note: see Baker’s Open Letter to Kerry].

[…]

“The Israeli government for years has refrained from waging a hasbara campaign based on advancing our rights,” Baker said. “Instead, it has waged a hasbara campaign based on apologies. The right thing to do was to operate out of a sense of advancing our rights, the rights of the Jewish people as an indigenous nation in its land. The Jews are the oldest nation here, but the State of Israel rarely mentioned this. It has rarely mentioned the fact that these are territories where we have had rights from time immemorial. It has rarely mentioned international documents like the Balfour Declaration, the San Remo Declaration, the U.N. Charter, and the British Mandate as approved by the League of Nations, all of which are very relevant as they relate to our rights here.”

“Most importantly, it has refrained from emphasizing that what we are dealing with is not occupation,” he said.

You’re “talking history.” Who even takes that into account these days?

Baker: “If we refer to it, others will refer to it. It’s a process that takes time.”

[…]

Baker: “There’s a problem with the State Attorney’s Office. There is a group of people there that have a very one-dimensional approach when it comes to the status of the territories and settlers.”

[…]

Bezalel Smotritz, a senior figure at Regavim, said that while his organization adopted the “offense-is-the-best-defense” approach in its arguments before the High Court of Justice, he and his friends realized that they were busy “putting out fires.”

“The settlement enterprise in Judea and Samaria exists today within the bounds of an untenable legal situation which is the byproduct of the judicial delegitimization that has been waged for years by the left against Judea and Samaria and the settlements there,” he said. “These bounds toe the line between ‘illegitimate’ and ‘war crime.’ One should add that the law that is applied today to the settlement enterprise is outdated and unsuitable for normalized living in Judea and Samaria. We are talking about the remnants of Ottoman law, British Mandatory law, Jordanian law, and Israeli defense edicts. All of this requires that we change the ongoing dialogue.”

“If we seriously want to deal with the justice system as it relates to the settlements, there is no alternative but to equip ourselves with a legal bulldozer and break through,” he said. “We need to establish an entirely different legal foundation which will enable the settlement enterprise to breathe and combat the legal delegitimization, and to convince the public that settlements are legitimate.”

[…] One can say, ‘It’s too late,’ and throw up his hands in despair and go home, like [what we’ve done] in the Negev. I’m not ready to give up, not on the Negev and not on Judea and Samaria. For years, a certain legal school has been in charge, and many academics and jurists were afraid to speak up. Now they are not alone.”

After reading Isi Leibler’s words of warning to Israel’s leaders, Nadav Shragai’s article gives us some cause for optimism. Let us hope that these jurists’ opinions and reports receive a fair hearing, and let us wish them the greatest success, for the sake of all of us.

UPDATE: After posting this, I came upon “News from Arlene in Israel” in the Australian”Jews Down Under” blog, in which Arlene Kushner announces a new Facebook page promoting the Levy Report. The Levy Report’s findings (which I wrote about here) were as follows:

The Levy Report was written by a three person committee headed by Justice Edmund Levy; the committee was mandated by Prime Minister Netanyahu with determining the status of building in Judea and Samaria.  The Report was released in July 2012 after a year of extensive research based on law and history:

It concluded that Israel’s situation is unique, that Israel is not an occupier in Judea and Samaria, and that the “settlements” are not illegal.  Nor, says the Report, do the Geneva Conventions apply to Israel’s situation.

Prime Minister Netanyahu accepted the Report and then, because of pressures, shelved it without even so much as a committee discussion.

Please “like” the facebook page and spread the word. I’ll update when the Levy Report website is operational.

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4 Responses to The legal case for Judea and Samaria

  1. Although, these legal arguments have their own inherent validity, it must be recognized they are made in an opposing environment utterly devoid and unconcerned of legal, analytical, historical or moral reality. These arguments have been well established for decades but disregarded, nevertheless, by those intent on achieving their ends irrespective of the legitimacy of the means. For Israel to succeed, it must be clear that it will be intransigent to illegitimate claims to its legal territorial rights. Furthermore, that there is no reasonable possibility of negotiations achieving successful results as long as Palestinians openly seek to destroy the State of Israel, refuse to recognize it as a Jewish State and continue to indoctrinate generations to kill Jews indiscriminately. Those that continue to advocate Israeli concessions in the face of these conditions expose themselves as not only ignorant of historical predicates but as immoral as well. These nations, societies and individuals cannot be taught to change their anti-Semitic bigotry and this fact should be openly exposed. In light of this reality, Israel must remain a nation that will rain unrelenting devastation to its adversaries who have chosen to risk by military attack their own existence rather than enter the civilized world of abiding to legal authority and moral imperative.

    • anneinpt says:

      You are totally correct of course. I think the importance of these new guidelines and principles are as much for internal Israeli discourse as for in international forums. As you say, Israel’s legitimate claims will be ignored by the international institutions as always.

      The trouble is that Israel itself has been ignoring her own legal rights because of international or leftist pressure, and general “drift” over the years under the influence of such pressure and leftist governments. That is why making our legal case now is so important and so exciting.

      • It seems that since the Hamas/election/Jewish expulsion debacle, liberal Israelis have had a political reality come-uppance forcing their realization that there is no likelihood of a peace agreement with adversaries who have made abundantly clear and have held tenaciously to their genocidal goals. Although the rest of us expected an earlier epiphany, you and this article suggests a potential change from their former seemingly designed ignorance of Israel’s legitimacy to a new and more assertive position of their legal rights. Among the “pigs” who will never learn to sing, there may be some statesmen and women who will join our choir.

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