The media thinks so.

The UN General Assembly and even the Security Council have adopted resolutions that say so.

Even the International Court of Justice has so stated.

They are wrong!

The Bible, history and international law all support the right of Jews to live and build in Judea, Samaria and Jerusalem.

I will focus on international law. I will discuss three different theories, each of which provide a legal basis for the right of Jews to live and build in Judea, Samaria and Jerusalem.  They are:

1. The League of Nations Mandate for Palestine;
2. The 1967 War;

• The Oslo Accords.

1. The League of Nations Mandate for Palestine.

The League of Nations Mandate for Palestine was the culmination of the Balfour Declaration and the San Remo Resolution. So let’s take a look at those.

1. The Balfour Declaration, issued by Lord Balfour, the Foreign Secretary of Great Britain, Nov. 2, 1917, stated:

“His Majesty’s Government view with favour the establishment in Palestine of a national home for the Jewish people, and will use their best endeavours to facilitate the achievement of this object.”

This was endorsed by the United States. President Woodrow Wilson said (Mar. 3, 1919):

“I am, moreover, persuaded that the Allied nations, with the fullest concurrence of our own government and people, are agreed that in Palestine shall be laid the foundations of a Jewish Commonwealth.”

2. San Remo Resolution

The Balfour Declarations was given legal effect in a treaty entered into by the WWI Allies (Britain, France, Italy, Japan),  on April 25, 1920,  in San Remo, Italy. It provided:

The High Contracting Parties agree to entrust . .  .  the administration of Palestine, within such boundaries as may be determined by the Principal Allied Powers, to a Mandatory, to be selected by the said Powers. The Mandatory will be responsible for putting into effect the declaration originally made on November 2, 1917, by the British Government, and adopted by the other Allied Powers, in favour of the establishment in Palestine of a national home for the Jewish people, [it being clearly understood that nothing shall be done which may prejudice the civil and religious rights of existing non-Jewish communities in Palestine, or the rights and political status enjoyed by Jews in any other country.]

The terms of the mandates in respect of the above territories will be formulated by the Principal Allied Powers and submitted to the Council of the League of Nations for approval.

            The Balfour Declaration was a statement of British policy, but the San Remo Resolution was a treaty that was legally binding on the parties. The policy announced in the Balfour Declaration and made legally binding by the San Remo Resolution, was implemented by the creation of the Mandate for Palestine by the League of Nations. 

3. The League of Nations Mandate

The League of Nations Mandate for Palestine (July 24, 1922) provides in the preamble:

…[T]he Principal Allied Powers have agreed. . . , to entrust to a Mandatory selected by the said Powers the administration of the territory of Palestine, which formerly belonged to the Turkish Empire, within such boundaries as may be fixed by them; and

…[T]he Principal Allied Powers have also agreed that the Mandatory should be responsible for putting into effect the declaration originally made on November 2nd, 1917, by the Government of His Britannic Majesty, and adopted by the said Powers, in favour of the establishment in Palestine of a national home for the Jewish people, [it  being clearly understood that nothing should be done which might prejudice the civil and religious rights of existing non-Jewish communities in Palestine, or the rights and political status enjoyed by Jews in any other country;] and

…[R]ecognition has thereby been given to the historical connection of the Jewish people with Palestine and to the grounds for reconstituting their national home in that country; and

[T]he Principal Allied Powers have selected His Britannic Majesty as the Mandatory for Palestine … .

It provides in the operative part,

Article 2

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, as laid down in the preamble, [and the development of self-governing institutions, and also for safeguarding the civil and religious rights of all the inhabitants of Palestine, irrespective of race and religion.]

***

Article 5

The Mandatory shall be responsible for seeing that no Palestine territory shall be ceded or leased to, or in any way placed under the control of, the Government of any foreign Power.

Article 6

The Administration of Palestine … shall facilitate Jewish immigration … and shall encourage . . . close settlement by Jews on the land … .

Article 7

The Administration of Palestine shall … facilitate the acquisition of Palestinian citizenship by Jews who take up their permanent residence in Palestine.

Although the United States was not a party to the San Remo treaty or to the League of Nations, it fully supported the establishment of a Jewish national home in Palestine.

Thus, President Harding wrote,

“I am very glad to express my approval . . .  of the restoration of Palestine as a homeland for the Jewish people … . I hope the efforts now being carried on in this and other countries in this behalf may meet the fullest measure of success.”

And Congress adopted the Lodge-Fish Resolution, (June 30, 1922) titled “Favoring the establishment in Palestine of a national home for the Jewish people.” It provided,

“Resolved by the Senate and House of Representatives of the United States of America in Congress assembled. That the United States of American favors the establishment in Palestine of a national home for the Jewish people, [it being clearly understood that nothing shall be done which should prejudice the civil and religious rights of Christian and all other non-Jewish communities in Palestine, and that the holy places and religious buildings and sites in Palestine shall be adequately protected.”]

The total territory of the original Palestine Mandate was about 45,000 square miles. In 1922, Britain suspended application of the Mandate for Palestine to almost 80% of the territory that was originally designated for the Jewish national home, which later became Transjordan. Ironically, this was later justified by the British on the grounds that when the Jewish national home becomes a reality, these Arabs who did not want to live in a Jewish state would need a place to go. This left about 10,0000 square miles for the Jewish national home, or .002% of a total of 5 million square miles of territory captured from the Ottoman Empire and allocated by the Allies.

In his speech to the UN General Assembly last fall, PA President Abbas stated:

“Yes, 100 years have passed since the notorious Balfour Declaration, by which Britain gave, without any right, authority or consent from anyone, the land of Palestine to another people.”

Did the Balfour Declaration and the San Remo Resolution violate international law, as Abbas claims, or did the victors of WWI have a right to determine what happened to the territories they captured from Turkey?

International law as it existed for hundreds –  perhaps thousands –  of years, did not prohibit the use of force or the acquisition of territory by the use of force, In the words of a prominent treatise on international law:

“Under general International Law conquest is not the result of an illegal act; on the contrary, it is the consequence of the use of force permitted by international law.”

Almost every country in the world has territory it acquired by the use of force. [For example, the U.S. acquired a great deal of territory, including California, Arizona, New Mexico, and Utah, by use of force.]

Thus, under international law as it existed at the time, the victors could have simply divided the territory they captured from the Ottoman Empire among themselves. Partly as a result of President Woodrow Wilson’s push for “self-determination”, they decided not to do that, but to establish “Mandates” and “Trusteeships” in the captured territories.

As we all know, Britain unfortunately did not comply with the Mandate.  In 1939 it issued the McDonald White Paper, drastically limiting Jewish immigration to Palestine. Following WWII, it barred ships carrying holocaust survivors from entering Palestine, forcing some to return to Europe and interring some in Cyprus.

4. N. General Assembly Resolution 181: The Partition Plan

In 1947, Britain decided it did not want to continue as the Mandatory and asked the UN to deal with the matter.  The UN appointed a Commission which recommended partition of the territory into two states, one Jewish, one Arab. and in November 1947 the U.N. General Assembly adopted Resolution 181, “the Partition Plan”. This divided the remaining 10,000 square miles, leaving a little over 5,000 square miles for the Jewish National Home.

Under the UN Charter the General Assembly can only recommend. It has no authority to adopt binding resolutions. The Jews, after much soul searching, accepted the General Assembly recommendation, but the Arabs did not. Seven Arab states attacked Israel. Transjordan captured and annexed the old city of Jerusalem, and Judea and Samaria, which it renamed the “West Bank”, and changed its own name from Transjordan to Jordan. Only two states recognized Jordan’s annexation: Britain and Pakistan. And, of course, Israel captured these territories in 1967.

A Mandate is a binding treaty. According to Eugene Rostow, a preeminent scholar of international law, Dean of Yale Law School, and Under Secretary of State, the territories seized by Jordan in 1948 and captured by Israel in 1967 are “unallocated territories” under the Mandate and Israel has a right to remain in these territories until they are allocated.

1. The 1967 War

Jews also have a right to live and build in Judea and Samaria because these territories were captured in a war of self-defense.

As I stated earlier, for most of history, use of force by one State against another was not prohibited by international law. The laws of war regulated the conduct of war, e.g. it was unlawful to attack civilians or to shoot soldiers if they surrendered, but did not prohibit use of force. Even the League of Nations Covenant did not prohibit the use of force. That is the major innovation of the UN Charter. However, even the UN Charter does not explicitly prohibit the acquisition of territory by the use of force.

            Article 2(4) provides:

“All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.”

Those who take the position that the Charter prohibits acquisition of territory by use of force argue that one should not be permitted to benefit from a transgression. Since article 2(4) of the Charter prohibits “the threat or use of force against the territorial integrity or political independence of any state,” a state should not be permitted to acquire territory by use of force in violation of Art. 2(4). However, the UN Charter recognizes the right to use force in self-defense. Article 51 provides:

“Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs . . . .”

If the use of force is in self-defense, it is not a violation of Art. 2(4). Therefore, the argument that acquisition of territory resulting from the use of force is not permittable because a State should not be permitted to benefit from its transgression does not apply where the use of force is lawful self-defense under Article 51. This is very controversial in international law. Those scholars who oppose acquisition of territory by the use of force even if the use of force is in self-defense argue that in almost every conflict each side claims that the other side was the aggressor and it was acting in self-defense. Therefore, all acquisition of territory by the use of force should be prohibited. One of the problems with this approach is that it removes one of the major deterrents to aggression, the risk that the aggressor may lose some of its territory.

Those who believe a distinction should be made  between unlawful use of force and lawful use of force and that acquisition of territory by the lawful use of force should not be prohibited argue that the purpose of the UN Charter was to eliminate aggressive use of force. An interpretation of the Charter barring acquisition of territory by the use of force even if it is in self-defense would have exactly the opposite effect because it would remove a deterrent to the use of force that existed in pre-Charter days.

Another question under Art. 51 is whether anticipatory self-defense is permissible or if use of force is only permissible “if an armed attack occurs.” Clearly, in today’s world of nuclear weapons a state cannot wait until an armed attack occurs to defend itself. At what point use of force in self defense is permissible is a very complex and very controversial question, beyond the scope of this lecture. However, there can be no question that Israel had a right to act in self-defense in 1967.

In 1967, Egypt ordered the UN Peacekeeping Force, which has been stationed in the Sinai following the 1956 war, to leave; closed the Strait of Tiran;  and Egypt and other Arab states made numerous belligerent statements threatening the imminent destruction of Israel. For weeks before the war, Arab states threatened to annihilate Israel. Here are a few examples:

Syrian Defense Minister Hafez Assad, May 20, 1967:

“Syria’s forces are ready … . [T]he time has come to enter into a battle of annihilation.”

Gamal Abdel Nasser, President of Egypt, May 27, 1967:

Our basic objective will be the destruction of Israel. The Arab people want to fight. . . . The mining of Sharm el Sheikh is a confrontation with Israel. Adopting this measure obligates us to be ready to embark on a general war with Israel.”

Nasser, May, 30, 1967, after signing a defense pact with Jordan’s King Hussein:

“The armies of Egypt, Jordan, Syria and Lebanon are poised on the borders of Israel . . . .[S]tanding behind us are the armies of Iraq, Algeria, Kuwait, Sudan and the whole Arab nation. … [T]he critical hour has arrived. We have reached the stage of serious action and not declarations.”

Yemeni Foreign Minister Salam:

“We want war. War is the only way to settle the problem of Israel. The Arabs are ready.”

King Hussein of Jordan, after signing the pact with Egypt, May 30, 1967:

“All of the Arab armies now surround Israel. The UAR, Iraq, Syria, Jordan, Yemen, Lebanon, Algeria, Sudan, and Kuwait. … There is no difference between one Arab people and another, no difference between one Arab army and another.”

President Abdel Rahman Aref of Iraq, May 31, 1967:

“The existence of Israel is an error which must be rectified. This is our opportunity to wipe out the ignominy which has been with us since 1948. Our goal is clear – to wipe Israel off the map.“

Nasser, June 2, 1967:

“We are now ready to confront Israel.”

Israel sent a note to Jordan, through the UN, asking it not to join Egypt in its war against Israel and promising not to attack Jordan, a request which Jordan rejected. In 1970, Richard Falk, notoriously anti-Israel (he just wrote a report that Israel is in an apartheid state, which even the UN rejected), said that he was revising his earlier views on the law of self-defense:

…in light of my conviction that Israel was entitled to strike first in June of 1967, so menacing and imminent was the threat of aggression being mounted against her.

Following the 1967 war, the UN Security Council adopted Resolution 242. Although it states in the Preamble,

            “Emphasizing the inadmissibility of the acquisition of territory by war”,

it states in the operative part that it

“1. Affirms that the fulfilment of Charter principles requires the establishment of a just and lasting peace in the Middle East which should include the application of both the following principles:

(i) Withdrawal of Israel armed forces from territories occupied in the recent conflict;

(ii) Termination of all claims or states of belligerency and respect for and acknowledgment of the sovereignty, territorial integrity and political independence of every State in the area and their right to live in peace within secure and recognized boundaries free from threats or acts of force”

Famously, it does not say withdrawal from “all the” territories, or even “the” territories. That was not due to oversight. An amendment that would have so provided, proposed by the Soviet Union, was rejected, and the Arab States on the Security Council voted against the resolution because it did not require Israel to withdraw from all the territories.

Thus, the Security Council clearly anticipated that Israel would retain some of the territory it captured. Ambassador Goldberg, who was the U.S.  representative to the U.N. and was involved in drafting the resolution, wrote an article making this point very clear.

III. The Oslo Accords

Third, the right of Israelis to live and build in the territories it captured in 1967 can be justified based on the Oslo Accords. The Oslo Accords consist of two agreements:

the Declaration of Principles on Interim Self-Government Arrangements, entered into on Sep. 13, 1993 (Oslo I), and

the Interim Agreement on the West Bank and the Gaza Strip, entered into Sep. 29, 1995 (Oslo II).

Oslo II is a very long and comprehensive agreement, with many provisions and annexes.  Although the term “settlements” appears numerous times – 38 by my count – and there are many provisions that refer to the “settlements”, dealing with such matters as water, electricity, security, nowhere does it state that Jews may not live in or build in Judea, Samaria, or Jerusalem. During the negotiations, the PA requested the addition of a side letter to the agreement that would limit construction in the “settlements”. Israel did not agree and they withdrew the request. Oslo II provides in a number of places that matters pertaining to the settlement s will be resolved in final status negotiations.

Thus, even if Israeli presence and/or construction in Judea and Samaria were otherwise a violation of international law, as is claimed by some of its critics — with which I strongly disagree — it would not be a violation because the parties entered into a treaty in which they agreed that these questions will be resolved as part of the final status negotiations.

In sum, there are three distinct legal bases that support Israel’s right  to remain in or retain the territories in dispute:

1. Judea, Samaria and Jerusalem are part of the territories allocated for the Jewish National Home by the League of Nations Mandate, which is a legally binding treaty and remains in effect until it is superseded by another treaty.
2. Judea, Samaria and Jerusalem were captured by Israel by the use of force in self-defense. Although the U.N. Charter prohibits the threat or use of force and it is generally agreed that a State should not be permitted to keep territory it captured by the use of force in violation of the Charter, since it should not be permitted to benefit from a wrong, that should not apply to a territory in which the use of force was not a violation of the Charter but in lawful self-defense.
3. In the Oslo Accords the parties to the dispute agreed that various issues, including the rights of Israel in the territories in question, would be resolved by negotiations between them. Until they are so resolved Israel has a right to remain in the territories in question.

Does Resolution 2334, adopted by the Security Council (Dec. 23, 2016), change that? That resolution provides, in part:

The Security Council

1. Reaffirms that the establishment by Israel of settlements in the Palestinian territory occupied since 1967, including East Jerusalem, has no legal validity and constitutes a flagrant violation under international law and a major obstacle to the achievement of the two-State solution and a just, lasting and comprehensive peace;
2. Reiterates its demand that Israel immediately and completely cease all settlement activities in the occupied Palestinian territory, including East Jerusalem, and that it fully respect all of its legal obligations in this regard;
3. Underlines that it will not recognize any changes to the 4 June 1967 lines, including with regard to Jerusalem, other than those agreed by the parties through negotiations;
4. Stresses that the cessation of all Israeli settlement activities is essential for salvaging the two-State solution, and calls for affirmative steps to be taken immediately to reverse the negative trends on the ground that are imperilling the two-State solution;
5. Calls upon all States, bearing in mind paragraph 1 of this resolution, to distinguish, in their relevant dealings, between the territory of the State of Israel and the territories occupied since 1967;

Notwithstanding this strong language by the Security Council, Israel’s presence in Judea, Samaria and Jerusalem, does not violate international law.

First, Res. 2334 itself reaffirms Res. 242 which recognized Israel’s right to retain some of the territories captured in 1967. Second, although the Security Council, unlike the General Assembly, has the authority to adopt binding resolutions, not all S.C. resolutions are binding. Only resolutions under Chapter VII are binding. This resolution was not adopted under Chapter VII, and is, therefore, not binding.

Having said that, this resolution will, without doubt, have negative consequences for Israel. It will lead people not knowledgeable about the intricacies of the Arab-Israeli conflict to believe Israel is acting in violation of international law. It creates the impression that there was a Palestinian State, which Israel captured and is illegally occupying, even though there never was a Palestinian State and the territories in question – except Jerusalem – were designated for the Jewish National Home in two binding legal documents, the San Remo Resolution and the League of Nations Mandate for Palestine. It will also, in all probability, lead some states and UN organs to take actions adverse to Israel.

Malvina Halberstam is a professor of law at the Benjamin N. Cardozo School of Law, Y.U. She served as Counselor on International Law  in the U.S. Department of State, Office of the Legal Adviser.

This is one of four lectures presented April 15-18, 2017,  at the Lake Las Vegas Westin in Henderson Nevada. The material may not be reproduced , in whole or in part, without the author’s written permission, but may be quoted with appropriate attribution.