The legal basis for Israel’s existence

By Prof. Jack Cohen

The two extreme views of the West Bank situation are the liberal view, that the Palestinians are a poor, colonized people who were there before Israel was founded and who deserve a state of their own, and the religious view that the land was promised to the Jews in the Bible, and who can argue with God. Frankly, I reject both of these views, I argue from a legal and historical point of view, taking into account the facts.

Let us start with the Balfour Declaration of 1917, in which the British Government “viewed with favor the establishment of a national home for the Jews in Palestine.” This policy would not have had any significance had not Britain conquered the area from the Turks and then the Balfour Declaration was accepted both by the US Congress and Pres. Wilson in 1918.

The Paris Peace Conference of 1919 was supposed to resolve all matters arising from WWI. Pres. Wilson of the US was strongly against his erstwhile allies, Britain and France, taking any colonial advantage from the defeat and subsequent break-up of the Ottoman Empire. But, not having declared war on Turkey he had little influence on the outcome in the Middle East. As a compromise to satisfy him, Britain and France agreed to a Mandate system, whereby they would each take control of areas of the previous Ottoman Empire but for a limited period of time with a view to eventually granting independence to the subject peoples. Because various issues were left unresolved and each leader had to consult his own country, the final disposition was left to a follow-up conference.

This was held in San Remo in 1920, and it was here that the Mandates were actually assigned. Britain of course got Palestine (actually called Southern Syria until then) and Iraq (a country invented by the British) and France got Syria, from which it separated Lebanon. These assignments accorded with the secret Sykes-Picot agreement between Britain and France negotiated during the War. Britain also had nominal control over Iran. Although it was offered Armenia and central Turkey, America refused any Mandates because it rejected colonialism and foreign entanglements.

Although the British secretly expected to control the area in perpetuity as a means to defend the Suez Canal, a vital link with the British colonies in India and elsewhere, the Mandate for Palestine was understood in the legal documents to be for the purpose of establishing a Jewish homeland. The Arabs were expected to eventually have independence in Syria and Iraq, to satisfy the agreements that the British had made with the Hashemite Sherif Feisal of Mecca.

These arrangements were formally ratified by the League of Nations in 1922. However, Britain, under Winston Churchill unilaterally divided the Palestine Mandate in 1922 to form an Arab State, Trans-Jordan. Meanwhile, taking advantage of the weakness of Turkey, Greece invaded in order to reclaim the lands in western Anatolia that had previously been Greek. But the Turkish Army under Kemal Attaturk counter-attacked, defeated the Greek forces and then proceeded to massacre the Greek civilians around Smyrna, that became Izmir. The existence of the Turkish Republic was recognized de facto at the further Treaty of Lausanne in 1923. In 1932, an alliance of Ibn Saud and the Wahhabi sect of Islam conquered Mecca and Medina from the Hashemites and established Saudi Arabia, thus negating any previous understandings.

During this period, the Arabs, while themselves denied self-determination by Britain and France, agitated against the Palestine Mandate’s provision for a Jewish entity. The Arab revolt of 1936 in Palestine massacred many Jews, but was defeated by the colonial British Army. However, a tacit agreement was reached between them, that in order for the British to avoid further outbreaks of Arab violence they would restrict Jewish immigration into Palestine. This the British did in the so-called White Paper of 1938, which in effect (illegally) reversed the terms of the Balfour Declaration and the Mandate provisions. As we know this had tragic consequences for the Jews caught in the Holocaust during WWII. The Jewish Yishuv (settlement) fought against the British before and after WWII and eventually forced the British to surrender their Mandate.

The State of Israel was then declared by Ben Gurion and was recognized by the UN and all major powers. As a result of the War of Independence of 1948 Trans-Jordanian forces (they subsequently dropped the “trans”) occupied the so-called West Bank of the Jordan River. This occupation was never recognized internationally (only Pakistan and Britain recognized it) and consequently the legal disposition of the West Bank was in no way made distinct from that of the rest of Palestine that had become the Jewish State of Israel.

Israel recaptured the territories as a result of the Six-Day War of 1967. The claim of Israel to the West Bank and East Jerusalem remains legally intact. Whether or not to build settlements there is a political decision. This territory under international law is “disputed” between Israel and a putative sovereign Palestinian entity, and in fact has had no recognized sovereignty since the defunct Ottoman Empire.

This is also true of the Gaza Strip that was occupied by Egypt from 1948-1956 and by Israel from 1956-2006. According to UN resolution 242 of 1967 the fate of these territories is supposed to be determined in negotiations between the parties. Simply because Arabs live there does not mean that it should automatically become an Arab State, the world is replete with groups that have not achieved sovereignty (the Kurds for example). After the Israel-Egypt Peace Treaty of 1979, the Madrid Peace Conference of 1991, the Israel-Jordan Peace Treaty of 1994 and various wars in almost every decade, this is how the situation remains. After direct talks for 16 years, the Palestine Authority, that was formed as a result of the Olso Accords of 1993, has reverted to requiring preconditions and indirect talks. We Israelis would be happy if we thought that the Palestinians are ready for peaceful coexistence, but according to the Bush “Road Map” plan of 2003, the PA was supposed to stop incitement and terrorism. When that happens let us know.

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One Response to “The legal basis for Israel’s existence”

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