Home Backgrounders Israel and the Jewish People’s Legal Rights to Judea and Samaria

Israel and the Jewish People’s Legal Rights to Judea and Samaria

by Mike Fegelman
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Often given a platform by the mainstream media, the biggest accusation leveled against Israel is that it’s an “illegal occupier of Palestinian land.”

Accordingly, when Israel fought a defensive war against annihilation by its Arab neighbours in 1967 – gaining control of a wide swath of land including Judea & Samaria (otherwise known today as the “West Bank”) – Israel was a colonizer that made an illegal land grab.

Misleading maps the Globe and Mail published on February 8, 2020 depicting disappearing “Palestine”.

Often ignored, the basis for Israel’s legal rights to Judea and Samaria is the 1920 San Remo conference. At San Remo, the international community recognized the Jewish people’s 3,000-year historical connection to the lands of what became British Mandate Palestine whose territory was designated for the establishment of a Jewish national homeland. The Mandate for Palestine was a League of Nations mandate for British administration of the territories of Palestine and Transjordan, both of which had been conceded by the Ottoman Empire following the end of World War I in 1918.

International law defines a state’s borders as being determined by the borders of the political entity that existed beforehand. If Israel is said to be “occupying” land, who was it occupying it from? In Israel’s case, that would be the British Mandate, whose borders stretched from the Mediterranean Sea to the Jordan River.

During Israel’s War of Independence in 1948 following the Partition Plan, it was immediately attacked by its neighbours, and Jordan ended up occupying Judea, Samaria and parts of Jerusalem, including the Old City, where it destroyed 58 synagogues. Jordan had a 19-year illegal occupation over this land which it unilaterally annexed, but never claimed sovereignty to from 1948 until 1967. Jordan held the land in trust only as custodians until a resolution could be procured.

Israeli fighters seen welcoming the first Israeli Prime Minister, David Ben-Gurion

Jordan never claimed to have legal title. Israel merely took back the land in the Six Day War, and in essence, reclaimed the land it was legally entitled to under the original Mandate for Palestine.

Many critics will say that according to the laws of occupation under the Geneva Convention, Jordan was still the last country to hold the land, so Israel is occupying Jordan’s land. But Jordan relinquished claims to Judea & Samaria under its 1994 peace treaty with Israel, which supersedes the Geneva Convention. Article 49 of the Fourth Geneva Convention is limited to transfers or deportations into or out of occupied territories which are forcible, and no one, neither Israeli or Palestinian, have been deported or transferred forcibly to these areas. Furthermore, there’s no element of international law that can be used to prohibit the voluntary return of individuals to the towns and villages from which they or their ancestors had been previously evicted by forcible means.

What then about the claim that Israel “occupies” the Palestinian people?

International law states that peoples have the right to self-determination, but that is not necessarily the same thing as an independent state. In fact, Israel does grant Arab residents of Judea & Samaria self-determination. For example, Israel does not pass legislation that governs the lives of Palestinians – they are governed by the Palestinian Authority and Knesset-enacted laws don’t apply to them. As well, Palestinian-Arabs pay taxes to the Palestinian Authority which is their official self-government and representative on the international stage. While Israel’s military presence in the area ensures its safety, international law recognizes that the Palestinian-Arabs in fact do have self-determination already and that the only land Israel “occupies” is in fact its own.

Accordingly, these binding instruments of international law provide for the legitimacy for Israel’s presence in Judea and Samaria.

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