hoffheimer column

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

Israel’s "occupation" under international law

The overwhelming weight of authority (rarely mentioned in the press) from international lawyers and scholars, is that Israel's re-occupation of Judea and Samaria in 1967 is completely lawful under international law. No state, except Israel, had ever possessed lawful sovereignty over this territory after the fall of the Ottoman Empire in World War I. When Turkey in 1918 lost sovereignty, which had been acquired by invasive force in the sixteenth century, Britain did not obtain sovereignty, but only a trust as a mandate under the League of Nations for the express benefit of the Jewish people. Jordan annexed the territory by force and without U.N. sanction in 1948 only after Israel fulfilled the legal mandate and declared its statehood. Jordan then controlled the territories in a state of war and by force from 1948 to 1967. Only Israel had been recognized as sovereign over the territory under international law. Any Jordanian claim to sovereignty was not recognized as legal by even a single other Arab state. Even the Palestinian Arabs in Judea and Samaria claimed no sovereignty over the land Israel reacquired in its defensive war in 1967.

No right to "Palestinian" self-determination

The Arabs' recent claim of Palestinian self-determination by the Arab inhabitants in Judea and Samaria postdates the Six Day War and has no basis in international law or in fact. The Arabs in Judea and Samaria are not a distinct ethnic or religious group that under long-standing international legal principles or political theory might entitle them to self-determination, as might be the case, for example, with the Kurds of Turkey, Iraq, and Iran. There has never in history been a sovereign state in Palestine except for a Jewish one. The Arabs who live in what formerly was the British mandate and is now Jordan, Israel, and the disputed territory, are the same ethnicity, speak the same language, share the same history and culture, and adhere to the same religion as Arabs in other parts of the region, particularly in Jordan. They consider and claim themselves to be part of one "Arab Nation,” the same "nation" found, for example, in Morocco and Kuwait -- or even Chicago, New York, and Cincinnati. Jordan was created, even if illegally, for them; it is a large, thinly-populated territory and is now accepted as a sovereign state.

Most of the contemporary Arab population of Judea and Samaria are those who are descended from those who emigrated from other Arab lands only recently, most during the British mandate. The Arabs in Palestine were small in number until Jewish resettlement and cultivation after World War I restored the barren lands and attracted Arabs from neighboring regions. The vast majority of the Arab population in Judea and Samaria voluntarily chose to live in an internationally-guaranteed Jewish state and to leave other lands legally committed to Arabs. The contemporary Arab cries that Israel is populating Judea and Samaria with Jews in order to secure the territory completely ignores that the Arabs populated it for the most part only after it had first been set aside and guaranteed for the Jewish people by the League of Nations under international agreement and had been resettled, cultivated, and made habitable by Jews.

In the face of these historical facts, the Palestine Liberation Organization and Hamas, among other organizations claiming to speak for the Arabs living in Palestine or who claim a right of return, have had little choice but to acknowledge that the claim of Palestinian Arabs to political self-determination is nothing but a political tactic in its political, terrorist, anti-Jewish, and anti-Zionist fight against Israel. Their claims directly contradict international law. This is an old antagonism, going back, metaphorically-speaking to Sarah and Hagar, Isaac and Ishmail. Zuhair Muhsin, head of the PLO Military Operations Department, told a European newspaper in 1977 that "There are no differences between Jordanians, Palestinians, Syrians and Lebanese. We are one people. Only for political reasons do we carefully underline our Palestinian identity. For it is of national interest for the Arabs to encourage the existence of the Palestinians against Zionism. Yes, the existence of a separate Palestinian identity is there only for tactical reasons. The establishment of a Palestinian state is a new expedient to continue to fight against Zionism.”

There already exists, in fact, a state whose majority population is comprised of Palestinian Arabs. That state is Jordan. Jordan occupies four-fifths of what was the British mandate for a Jewish homeland under the League of Nations, and the majority of Jordan's population is Palestinian Arabs. In 1970, Jordan's King Hussein stated that "Palestine is Jordan and Jordan is Palestine. There is one people and one land with one history and one identity. When the British in 1922 established Transjordan, Britain's Commissioner for Eastern Palestine made clear that the areas that lay "to the east of the [Jordan] river were intended to serve as a reserve of land for use in the resettlement of Arabs once the national home for the Jews in Palestine became an accomplished fact.” This Jewish national home would include Judea and Samaria. Thus, Palestinian self-determination has been legally recognized, and it does not entitle the Palestinian Arabs under international law to an additional independent Arab state in Judea and Samaria. International law, as codified in the United Nations Declaration on Self-Determination, lists all of the necessary and prerequisite criteria which must be met for any people to have a right to direct their political life in a particular territory. Even if all of these criteria were met in Judea and Samaria, this would not be sufficient to guarantee a right to separate statehood. The International Court of Justice has repeatedly rejected claims in other cases that self-determination necessarily means only independent statehood.

To be concluded next week in The American Israelite.

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