Removal of Jews Violates International Law

Dr. Yoram Shifftan

The overriding principle of International Law

What is the overriding principle of international law in relation to Palestine?  To answer this we observe that rights of nations that were obtained by virtue of a mandate of the League of Nations are still valid and this is indeed also enshrined in the Charter of the UN. That This is the general principle was further confirmed by the International Court of Justice and applied for example in South West Africa.

Specifically the mandate for Palestine of the League of Nations includes the following:

"The Mandatory shall be responsible for placing the country under such political, administrative and economic conditions as will secure the establishment of the Jewish national home...The Mandatory shall be responsible for seeing that no Palestine territory shall be ceded or leased to, or in any other way placed under the control of the Government of any foreign Power...shall facilitate Jewish immigration...and shall encourage...close settlement by Jews on the lands, including State lands and waste lands not required for public purposes"

These Jewish national rights were later "postponed or withheld" in Transjordan (what is today called Jordan), which is also part of Palestine, the Palestine to which the original mandate referred to. They were not postponed in all of the area west to the river Jordan, i.e. in all of Western Palestine (also referred to as Cisjordan). The mandate imposes a special urgency and does not allow any delay in the implementation of the Jewish state in all of Western Palestine. Thus Jewish settlement in all of Western Palestine is not only compatible with international law, but in fact international law calls for the active encouragement of this settlement and explicitly does not allow the postponing of this duty. Freezing of settlement activity is the anti-thesis of what international law prescribes. International law also explicitly does not allow the transfer of this land to any foreign non-Jewish Government. That this is the overriding principle is confirmed by leading professors of international law, for example by Professor Eugene Rostow (see e.g. his articles in think-Israel) and Professor Julius Stone (see e.g. Israel and Palestine, by Julius Stone, The Johns Hopkins University Press, 1981). These most eminent professors of international law and many of their colleagues are clear that according to international law Israel has the right to annex the whole of the land that is comprised in Western Palestine and to apply Israeli sovereignty to all of Western Palestine.

It results that any government that puts restrictions and delays on the Jewish settlement of Western Palestine, or worse, contemplates the transfer of parts of this land to a foreign government, or even worse, contemplating the transfer of Jews from this land instead of the obligatory to this land,  is involved in a serious transgression of international law. This applies to a Jewish government as well. In such a case remedy should be sought in national and international courts. A "Kal Vachomer" mode of reasoning is instructive: No ethnic minority, say Jews, could be instructed to move from a certain area of a democratic country where they happened to concentrate by chance. This results from the laws of basic human rights. Let alone Jews cannot be ordered to leave any part of Western Palestine where they have in addition special rights according to international law.

An appeal against a Jewish government that wants to transfer  Jews away from their own land has reasonable chance of success even in international court, or a British court for example. Indeed the Christian Zionists such as Winston Churchill, Loyd George, Lord Balfour and Orde Wingate were motivated by Jewish history in Palestine. The above overriding principle of international law did not arise out of thin air. It resides in the heart of Western Civilization. Even now the BBC produces a multitude of  historical, scientific, religious and archaeological programs on  Jews in Palestine. For example, in a recent one on Jesus the BBC narrator says: "Pontus Pilate [the Roman governor] did not like the Jews so he settled in Cesareia instead of in  Jerusalem which was the Jewish capital". I.e. the BBC admits that already 2000 years ago Jerusalem was the Jewish capital. The program  only mentions Romans and Jews in Palestine and Palestinian Arabs are conspicuous by their absence. It is not daily politics but many examples like this that are the true measure of Western civilization automatic acceptance that "Palestine" is the land of the Jews.

In fact this concept has been also acceptable to Muslims. For example the Feisal-Weizmann agreement in 1919 concluded at the peace conference in Paris,  refers to the "Arab State" (one only!) on the one hand and to  its Jewish counterpart referred to as "Palestine"! This forgotten agreement which is also part of binding international legality, has to be read nowadays to be believed. It breathes with good intentions and mutual congratulations on both sides. For example it includes statements such as:  "All necessary measures shall be taken to encourage and stimulate immigration of Jews into Palestine on a large scale, and as quickly as possible to settle Jewish immigrants upon the land through closer settlement and intensive cultivation of the soil."

One is bound to ask: is it not what Gush Katif settlements are doing  and thus fulfilling international legality? And is it not the case that the proposed evacuation of Jewish settlement by Sharon and Olmert is also a transgression of this 1919 agreement signed in international setting by the Arab leadership. Thus When Ben Gurion stated in the thirties said that no Jewish government has the right to cede Jewish land in Palestine he in fact complied not only with formal international law but also with a recognition arising from long Christian and Muslim-Arab tradition and commitment.

Expediency Considerations

As we saw Jewish leaders that call for the evacuation of Jews from parts of Western Palestine are transgressing international law which is explicit in not allowing any delay in the implementation of dense Jewish settlement in all of Western Palestine and in not  allowing the transfer of the land to the sovereignty of a foreign power . But it is also hard to accept their arguments of expediency. For example a statement like Sharon's: "those that delude themselves that in the current political circumstances prevailing in the world today, somebody in  the world, including the U.S.,  will support that Jews will be able to live in all of Eretz Israel, is dreaming, mistaken and misleading" (translation from Yediot Achronot, 24.2.2004) sounds hypocritical since if this was a consideration why then  for many years now (but not before the Oslo process) the government of Israel forbids its official representatives to declare on every world stage, on every TV program, in every opportunity, the above summarized overriding principle of international law? It is hard to accept Sharon's statement that world opinion would not let us keep even the Western part of Eretz Israel and in the same time to avoid openly reminding the world what is international law. After all the world public opinion can only know what Israeli representatives say on TV and in open publications. By not doing so it is actively concealing from the whole population of the world this overriding principle of international law that could mitigate the "political circumstances prevailing" mentioned above.

To appreciate the enormity of what Sharon-Olmert are contemplating, we have to remember that ceding national rights that have been enshrined in international law of nearly 100 years, will be a fateful irreversible act. In a normal democracy this would not be done at all, or after many internal discussions over many years. Sharon's way of immediately discussing his plan even with foreign leaders, before a proper discussion in his own government, is undemocratic.

A current example of the ongoing failure of the Israeli government over many years is provided by the question of the fence. Indeed the "Palestinians" and their friends have most recently focused on the fence. They say that the fence is illegal for  the same reasons that the settlements are illegal, i.e. because parts of the fence are built on "Palestinian land". This could have been used by the government of Israel as a stage and opportunity to highlight the above overriding principle of international law with the further resultant bonus that the fence also automatically becomes justified and legal since one is allowed to build, in general, and surely a lifesaving device, in one's own garden. Yet even here, in the face of the International Court of Justice, the government of Israel  refrained from invoking the overriding principle of international law. The question is why?

Sharon and Olmert also argue that evacuation is desirable for democratic and demographic reasons. But this assumes that the principle of democracy (one man one vote) requires territorial continuity. for 19 years Mount Scopus was an Israeli territory encircled by "Jordanian territory.” The UK spread not only across the water to Northern Ireland, or to Gibraltar, but to the Falkland Islands in the other end of the world. This argument is enough to refute the Sharon-Olmert thesis, but one could add to this that Arabs in Western Palestine do not serve in the IDF so anyhow they have not  earned the right to vote in the Israeli national level.

The willingness of Sharon to evacuate Gaza or parts of Judea and Samaria has to be compared to the willingness of the UK to evacuate Cambridge and Oxford for example. This will mean internal discussions spreading over many years before such a fundamental decision would have been reached. In fact in most states it is considered a treason to contribute to the transfer of the land of the state to a foreign power (surely to an enemy). But if the government of Israel conceals the fact that Israel has the right according to international law to sovereignty in all of Western Palestine, then neither its own citizens nor the citizens of the world at large, even know about this possible treason. So such a transfer of Jews is made easier and more acceptable in the presence of such a concealment. Also, the concealment for many years from the Israeli population that Palestinian incitement continued after the signing of the Oslo peace agreement helped to remove the  label of an enemy from the Palestinian Arabs, and thus contributes to alleviating the treason involved in transferring national land to the enemy. The irony is that even in other places in the world, where there are no special Jewish rights according to international law like those existent in Palestine, the singling out of Jews for a transfer would be considered as racist, anti-Semitic and illegal. Imagine for example her majesty government decreeing that all the Jews (only) in Cambridge and Oxford will have to evacuate these towns and move to other parts of the country!

For the U.K. for example, even a faraway part of its national entity such as the Falkland Islands was judged worthwhile to send a whole armada at an enormous cost and sacrifice. And here Sharon contemplates giving away national land at Israel's  doorstep. Even Kefar Darom that fell in the War of Independence and was resurrected is to be evacuated!  Could one imagine a better reward and encouragement for terrorism?  Imagine the degree of demoralization, confusion, the  irreversible loss of morale and pioneering spirit that will result.

An evacuation from Gaza is not only a reward for terror and is bound to encourage further terror. It is also true that it is only an Israeli presence in all of Western Palestine that would enable Israel to prevent the smuggling of weapons and to prevent the organization of murderous attacks against its citizens.  Also and most importantly, the proximity of Arab and Jewish settlement   has a beneficial value in that it deters the use of WMD on the Jewish population. So the presence of Arab habitation next to a Jewish habitation is not an argument to remove away the Jewish habitation. At a time of increasing fears from WMD, including from Iran's nuclear capability, a logical approach would entail explaining to the Israeli public and to the world at large the-greater-than-usual importance of densely settling Jews in the whole of Western Palestine and in YESHA in particular. An Arab settlement next to a Jewish one just increases the deterrence against the use of WMD. Instead the government wants to do the opposite and concentrate Jews in a very limited area with a minimum amount of Arabs around so that the Jews will constitute a more attractive target.  The evacuation of Gaza would be such a lamentable move.

Some Muslims  indeed see such a  "separation" and the creation of a purely Jewish territorial entity  as a sign from God that he indeed wants them to exterminate the Jews since the Jews themselves facilitate their own extermination. It is also clear that if the presence of nearby Arab villages and towns is a cause to root out Jewish settlement than one can find many more places to remove Jews from in addition to Gaza for example. The presence of Arab habitation has never been a reason to avoid Jewish settlement in the whole of history of Zionism. The Sharon-Olmert logic is not only antithetical to the spirit and the letter of international law, but it is against the spirit of the pioneering fathers and counterproductive to the existence, security and development of the state of Israel.