Who Owns the West Bank? - Part 2
Like many commentators I had an opinion about the Arab/Israeli question, but it wasn’t until I began researching this topic for myself, that I began to understand the question from Israel's perspective. What disappoints me is that while popular opinion berates the Jews, very little of the rhetoric stems from informed or balanced opinion. The hardest question one might ask today is, “what is the truth about the West Bank, and where on earth do I start?”
The obvious question that arises from my first letter is, “how can you say that world opinion is creating a fictitious Arab state without historical or legal claim in the first place”? Or, “what about 1948 United Nations resolution, how can you say this is illegal”? The point of this letter is to provide evidence for “why” I believe the case for Israel is compelling, and suggest that many educated international lawyers, and legal scholars also agree. I want to show how their opinion differs from the stance taken by politicians such as New Zealand PM Bill English. Obviously I accept that other views exist, but that’s the point, this matter is not settled as the media might suggest. The unreliability of popular opinion is dangerous, and legal opinion is far more diverse than the rhetoric might suggest.
The following 8 headlines illustrate some of the legal, social, and political argument that makes the case for Israel. These headlines run in stark contrast to the commentary we generally hear in the media. Obviously I haven’t gone into great detail on each point, because the objective here is to convey that other opinions can be equally compelling.
1. The validity, strength, and legality of the United Nations resolution. The United Nations contravened Article 5 (prohibiting ceding or leasing) of the original Mandate, when it allowed Britain to give Jordan (then Trans-Jordan) to Saudi Arabia. The legal issues that exploded from this point can be challenged in many areas. History testifies to its failure in that the legal strength of the resolution was invalidated by the Arabs refusal to accept it, and weakened by the United Nations inability to enforce it. It was clearly obvious from debate in 1947 that the resolution was doomed to failure. Amir Faisal Al Saud (Saudi Arabia) stated in reference to the United Nations: “Is not what is being attempted today in Palestine a case of flagrant aggression? Is it not tyrannical that an international organization is intervening to partition a country in order to present a part of it to the aggressor”? Amir Arslan (Syria) “As for us, we will never recognize this proposed partition, and we reserve the right to act accordingly.
The Jews didn’t agree with the terms of the 1948 resolution, but unlike the Arab States they chose to accept the opportunity. However, the interim 60 years has seen no change in hostilities, but many changes in the nationhood of Israel. Israel is an established international nation with far reaching power, influence and authority. From all appearances it’s somewhat idealistic to expect that Israel would ever revert to, or accept the terms of a 60 year old resolution, that clearly failed. International law experts from Israel hold the view that Article 80 of the United Nations Charter “preserved intact all the rights granted to Jews under the 1922 Mandate for Palestine, even after the Mandate’s expiry on May 1948”. Under this provision of international law (the Charter is an international treaty), Jewish rights to Palestine, and the Land of Israel, were not to be altered in any way, unless there had been an intervening trusteeship agreement between the states, or parties concerned. There’s been no intervening agreement.
2. The 1948 United Nations resolution 181 was never implemented. Resolution 181 was a nonbinding recommendation to partition Palestine, but implementation hinged on acceptance by the Arabs and the Jews. There’s irrefutable evidence to support this did not happen. If the Arabs had accepted the partition plan, this matter would have been settled; however, in the absence of a treaty between these two parties, the only legally binding authority that remains is the 1922 League of Nations Mandate for Palestine, and even this would not work after 60 years. The Arabs vowed to destroy the Jewish presence by force, a goal the Arabs publicly declared, even before the resolution was brought to a vote. By 1949 the United Nations simply abandoned the recommendations when it lost all relevance due to the first Arab/Israeli war. Further, Israel’s independence was not a result of any implementation of resolution 181. It had no legal ramifications to recognize the Jewish right to statehood, and its legal validity was never consummated.
3. International disagreement about resolution 181 is equaled only by the diversity of legal opinion.
4. Israel still has an irrefutable legal claim to these territories backed by the 93-year-old Mandate for Palestine. The League of Nations entrusted Britain with the authority to facilitate Jewish immigration to Palestine, until a transition to full Jewish sovereignty could be made. This entrustment was abused by Britain, and the United Nations manipulated the intent of the original mandate.
5. Jordon has already been partitioned as an Arab Territory. This measure under the 1922 Mandate counters the false narrative, that Palestinian Arabs are somehow dispossessed and without a homeland. It’s unfortunate that popular commentary conveniently excludes Jordan from any discussion around the question of Palestinian Statehood? This selective and false narrative has focused on Israel as the aggressor, when clearly an Arab State already exists. Of interest is the fact that there was no talk of nationhood from the Arabs, until Israel recovered the West Bank in the second Arab/Israeli war.
6. A pragmatic view of Israel's current international status might at least acknowledge that political posturing over the past will not change reality. If the impasse is to move forward, the legal presuppositions need to be put aside. Time has moved on and quite frankly I don’t believe an agreement will ever be reached, but popular opinion appears incapable of grasping this reality. The cultural, religious, and historical tensions will never change because Arabs will never accept Israel’s right to exist, and Israel will never surrender its right to life. We might not agree, but if we continue to berate Israel on spurious legal grounds, we do so to our own detriment.
7. The claim that Israel is an “occupying power” as defined in article 49 of the Geneva Convention. This is perhaps the most common claim used by the Arab States and those opposed to Israel. The claim has become an exercise in political sympathies, and a means of defining Israel as the antithesis of global morality. Many international lawyers have voiced the absurdity of applying article 49(6) in the context of Israeli settlements, and Morris Abram, a member of the US staff at the Nuremberg Tribunal, who was involved in the drafting of the fourth Geneva Convention notes that article 49(6) wasn’t designed to cover the Israeli situation. Needless to say, this is another area where the rhetoric about international law is dubious at best.
8. Legal precedent for Israel’s occupation of the West Bank was established in France 1990, by the Court of Appeal. A French company was contracted to construct Israel’s new light rail system. The PLO filed a complaint, but for the first time since 1948 an independent court ruled in favor of Israel. Israel's legal position concerning the West Bank was indorsed under international law.
I hope these points illustrate that ownership of the West Bank is not legally settled. There’s a wide range of opinion that can make a compelling case for Israel. I also want to suggest there are other forces at work here. Forces bent on destroying, not only Israel, but the fabric of a free, democratic, and civil society. They speak with lips of love, tolerance and freedom, while they rape the moral and spiritual foundations that make love possible in the first place.
