hoffheimer column

This is the sixth of eight installments on Israel under international law. Daniel Hoffheimer is an attorney in Cincinnati and writes about Jewish history.

Abandonment of the mandate and partition

In 1947, exhausted by World War II but without permission from the United Nations or other international agreement, Britain simply abandoned mandatory power over Palestine and withdrew without finishing its legally-obligated directive and unilaterally turned over all responsibility for Palestine to the U.N. General Assembly. The United Nations soon recommended a further partition plan, not of the whole territory of the British Mandate already legally committed to the Jews, but only of the small territory that was left after Britain illegally established Transjordan. This occurred just as the world was coming to terms with the enormity of the Holocaust and addressing the refugees who survived the Nazi destruction of European Jewry.

Many Jews were opposed to the 1947 partition plan on the obvious grounds that there was so very little territory left and that this territory remaining was already just a small fraction of what the post-World War I international agreement had guaranteed for the Jewish people, now so desperately needed for the survivors of the Holocaust who had nowhere else to go. However, given that several hundred thousand Jews who had survived the Holocaust were now homeless and stateless refugees, and that no country, including the United States, was willing to admit any but a relative few of them, the United Nations pressed the Jews to accept partition in order to resolve the dispute and provide a haven for survivors. The Jews, therefore, were forced reluctantly to agree, though conditionally, to the U.N.-sponsored partition plan, that is, to accept much less than the territory to which they were legally entitled under international law. The Jews' proffered compromise would have given much of Judea and Samaria to the Arabs, but the U.N. compromise was explicitly conditioned upon the Arabs' peaceable acceptance and recognition of a Jewish state in the remaining land of Palestine still not given to the Arabs.

The state of Israel 

If the Arab states had agreed to this 1947 U.N. partition plan and to a Jewish state, partition would have happened. However, the Arab states violently did not agree, and on May 14, 1948, with Great Britain dishonorably having fled as mandatory power, Israel itself fulfilled the mandate and declared its independent statehood (as the Arabs had already done elsewhere) on the meager New Jersey-sized territory left to it following Britain's creation of Transjordan. The very next day, May 15, 1948, Israel was attacked by the armies of seven Arab states, well-armed by their European sponsors. Today, with the exception of the nations with which Israel has signed treaties—Egypt and Jordan—most Arabs explicitly or implicitly reject the U.N. partition plan.

Israel, miraculously, survived the wars against its existence, and has lived as the victim of a state of declared war ever since. Jordan in 1948 by armed force seized Judea and Samaria and the ancient, walled city of Jerusalem, which, until 1948 when Jordan killed or forcibly expelled all of the Jews from the Old City of Jerusalem, had a Jewish plurality. In contrast to Israeli protection of Arab and Islamic culture in Israel, Jordan razed to the ground every one of the forty-plus synagogues in the Old City, some of which had stood for centuries. From 1948 to 1967, Jordan retained its military control of Judea, Samaria, and Jerusalem pursuant to its war of aggression in violation of the League of Nations mandate, U.N. Charter and resolution, and principles of international law. During that period, no Jews were allowed in Jerusalem. No Jews were allowed on the Temple Mount. The ancient Jewish cemetery on the Mount of Olives was completely desecrated, and the grave stones were used by the Arabs to pave roads and for latrines.

The Arabs never established a Palestinian state 

From 1948 to 1967, even while the Jordanian and Palestinian Arabs had exclusive, if illegal, control of the territory of Judea and Samaria, they did not establish or even attempt or ask to establish a Palestinian Arab state. Jordan was internationally established and remained the Palestinian State for the Palestinian Arabs. That is why Britain established it. Not a single Arab state throughout the Middle East even suggested establishing another Palestinian Arab state in Judea and Samaria, and no suggestion was advanced that there existed a Palestinian nation or separate Palestinian people, other than Jordan, for whom such that state was needed to fulfill the League of Nations accepted principle of self-determination. The United Nations was never presented with such an issue.

In 1967, after Israel once again was forced to fight in self-defense, largely against Egypt, Syria and Jordan, Israel recaptured the territories of Judea and Samaria that had been part of the ancient Jewish state, that had been awarded to the Jews under international law and by treaty following World War I, and that had been explicitly recommitted to the Jews even after Britain illegally established Transjordan. While most nation-states, in varying degrees, have come into existence through the acquisition of territory by force, this was not the case with the State of Israel and Judea and Samaria. Even if one refers to the U.N. Charter, which proscribes the "threat or use of force against the territorial integrity or political independence of any state", Israel cannot -- on the facts or on the law -- be accused of having acquired Judea and Samaria by force. It only reacquired them in defensive war.

That Israel's "use of force" in 1948 and 1967 was lawful self-defense under Article 51 of the U.N. Charter is barely disputed, except by Arab propagandists and their supporters. Israel's "use of force" in 1967 was a response to Egypt's closure of the Straits of Tiran, its blockade of the Gulf of Eilat, its removal of U.N. peacekeeping forces, Nasser’s promise to annihilate the Jews of Israel, and Egypt’s massing of offensive forces on, and then invasion across, the internationally-recognized Israeli border. Egypt made no secret of its intentions and, as President Nasser openly declared: "Our basic objective will be the destruction if Israel. The Arab people want to fight."

Even so, just prior to the 1967 invasion, Israel sent a diplomatic note to Jordan through the U.N. Secretary-General, so that there could be no doubt as to its authenticity, requesting that Jordan not join Egypt in its aggressive war. Israel assured Jordan that if it did not join Egypt's war, Israel would not cross the Jordan River and attack Jordan. Jordan rejected the request, joined Egypt, invaded Israel, and lost Judea, Samaria, and the walled city.

To be continued next week in the American Israelite.

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