To better understand the legal status of Judea and Samaria under international law consider the following:

To better understand the legal status of Judea and Samaria under international law consider the following:

AXIOM: In 1967 Israel liberated occupied Jewish Palestinian territories.  This was done not only for the enemies of Israel, but also to appease Allies and a majority of Israelis.  However, the world community, and the enemies of Israel hold forth that during the Six Day War, Israel “captured” the same liberated Jewish Palestinian territories.  Furthermore, Israel is accused of then installing its’ “settlers” with impunity and in obvious violation of international law. Which is true, the AXIOM of 1967 or the current interpretation of international law by the enemies and critics of Israel? For obvious current political and diplomatic reasons, the truth has been swept beneath a new wave of anti-Semitism. 

However, in order to clarify the legal status of Judea and Samaria under international law, we only need to examine HISTORICAL DOCUMENTS which many have chosen to forget or ignore. Upon examination of said HISTORICAL DOCUMENTS the only factual conclusion to arrive at is the critics (whether Arab, American, European, or the Israeli Extreme-Left) who accuse Israel of “occupation” are wrong.

Prof. Eliav Cho'hatman, lawyer and lecturer at the Graduate Institute of Law "Shaare Mishpat” wrote: "When I heard of two states for two peoples, I understood why ... Balfour and San Remo”.  To understand this issue, we must go back to November 2, 1917.  At that time, Lord Balfour, Foreign Minister of Great Britain, in writing agrees with Chaim Weitzman, then president of the World Zionist Organization. Lord Balfour, in an official letter to Lord Lionel Walter Rothschild, (honorary president of the Zionist Organization of England) writes that the UK is in favor of the establishment of a national home for the Jewish people in Palestine. This is the famous "Balfour Declaration" when in the aftermath of World War I, the League of Nations entrusted Britain with a mandate over Palestine. 

Three years after the Balfour Declaration in April 1920, a conference is held in San Remo, during which the great powers share the "spoils of victory”, namely the conquered territories during the war. At this conference, it was decided to introduce the 1917 Balfour Declaration as part of the Agreement giving it the force of International Law, The San Remo Treaty of April 1920, confirmed by the August 1920 Treaty of Sevres Article 95 and the Treaty of Lausanne (its terms are in effect in perpetuity) and the British Mandate for Palestine as trustee for the Jewish people. This decision confirms the international recognition of the Jewish right to “self-determination” in Palestine without boundary restrictions.  Furthermore, Britain is entrusted and obligated to work towards the realization of this statement (Balfour. note): “to found a national home for the Jewish people in Palestine." Furthermore, and of great importance, The San Remo Treaty of April 1920, and documents thereto, DID NOT state of any other nation, entity or people; ONLY the Jewish people were allocated ALL of Palestine (about 46,000 sq. mi.) At the same time The Arabs-Muslims were allocated over 6 million square miles of territory with a wealth of oil reserves.

It must be noted that including the incorporation of the Balfour Declaration in the Palestine Mandate of the United Kingdom, the text is the same international resolution supported by 52 member countries of the League of Nations, and the United States, which becomes a member of the international organization a few years later and accepted by the United States Congress and signed by the President. 

In paragraphs 5, 6 and 7 of the Protocol of April 1920 San Remo, we read: "No territory of Palestine will be sold or leased or held in any way under the control of the government of any foreign power." Also: "The Administration of Palestine, while ensuring that the rights of other parts of the population are not altered, shall facilitate Jewish immigration under suitable conditions and encourage, in cooperation with the Jewish Agency The dense settlement of Jews on the land (of Palestine with no boundary restrictions), including State lands and waste lands not required for public purposes."

Furthermore, the text states: "The Administration of Palestine is responsible for the adoption of a law on nationality. Must be included in this law provisions framed so as to facilitate the acquisition of Palestinian citizenship by Jews who acquire permanent residence in Palestine." At that time, it must be remembered, Palestine is not just the West Bank  of the Jordan, but also, and most importantly (at 70% of the territory) the East Bank, where today is located the new State of Jordan.  Per the above stated documents, Jordan is in fact unlawfully occupying land which belongs to Israel.

*Mi'kmaq of the British Empire: (*Treaties signed between the British Empire and the Mi'kmaq people. The first treaty was signed in 1725 after Father Rale's War. The final treaties of 1760-61, marked the end of 75 years of regular warfare between the Mi'kmaq ...)

What happens next is related to internal political changes in Britain and the election of a government hostile to the creation of a Jewish homeland throughout the territory of Palestine. Britain, having clearly supported the conclusions of the San Remo Conference of April 1920, decides to change its’ mind.  Britain begins to weave tenuous diplomatic ties with the Arab countries surrounding the area of Palestine and with several Arab leaders in an effort to control natural resources, such as oil.  It was after this rapprochement in 1921 that Transjordan is created.  Transjordan is a semi-autonomous state compared to the British, led by Abdullah Hussein, son of Sharif Hussein of Mecca Ibn Ali, and great-grandfather Abdullah, the current king of Jordan. 

In regards to the West bank of the Jordan River, and the West Bank - Judea and Samaria - nothing changed: these regions are still part of the territories over which should be established the Jewish national home. 

According to many lawyers, including Prof. Dr. Cho'hatman with Talya Einhoren and American lawyer Eugene Rostow, (one of the drafters of the famous U.N. Resolution 242), the Partition Plan of 29 November 1947 which is non-binding with no legal standing, DOES NOT change the legal right of Israel either. Indeed, having been adopted by the U.N. General Assembly and NOT by the Security Council, the Partition Plan cannot be considered legally binding. At most, it is only a recommendation that only obtains legal validity upon endorsement by the parties in question: The Jews and the Arabs. The Jews accepted it provided the Arabs accepted it also. It must be noted, since the Partition Plan was rejected by the Arab powers, its status remains protocol with no legal implications.. 

For other lawyers, ignoring documented claims, the non-binding Partition Plan has somehow transformed the Judea and Samaria territories into a status which remains cloudy. On one hand, they are not part of the state of Israel created in 1948.  Yet, Judea and Samaria do not belong to Jordan which occupied the territory during the War of Independence until the 1967 war liberated it. 

The Jordanian occupation
Question; Did the Jewish people lost temporarily the rights to Judea and Samaria with the Jordanian occupation between 1948 and 1967? For many lawyers, the answer is no. Jordan formally annexed the West Bank on April 24, 1950. However, the annexation was held illegal and void by the Arab League and others.  Jordan proclaimed sovereignty of the territories of which the support of only two countries, Britain and Pakistan. Moreover, the same Jordan decided in 1988 to abandon its sovereignty in Judea and Samaria. Incidentally, the term West Bank would therefore no longer be needed it is called Judea and Samaria.

Does the dissolution of the League of Nations, which was replaced by the UN, and the end of the British Mandate for Palestine cause any change in the rights of the Jewish people to their land? Again, the answer is no because, under section 80 of the UN Charter, "nothing in this Chapter shall be construed as affecting directly or indirectly in any manner the rights whatsoever of any states or any peoples or the terms of existing international instruments to which Members of the Organization may be parties. " Clearly, this means that the UN is committed in 1945 to protect the legitimacy of the Jewish land rights established by the League of Nations based on the April 1920 San Remo International Agreement. 

For Professor Eugene Rostow, mentioned above, the UN CHARTER above clearly holds that "the right of the Jewish people to settle in the land of Israel has never been interrupted on all the territory west of the Jordan River, and since a peace agreement has not and will not be signed between Israel and its neighbors.” He later wrote that "Israel has an undeniable right to establish settlements in all the territory of the West Bank  aka Judea and Samaria." 

No unilateral approaches 
Did the Oslo agreements affect the status of Judea and Samaria under international law point of view? Again, the answer is to be found in the texts themselves. Indeed, it is stated in the preliminary agreement in 1993 that the final peace agreement will be signed by both parties "through negotiations". The agreement called Oslo II, ratified in 1995, provides for its part that neither side "does not initiate or commence proceedings can change the status of the West Bank and the Gaza Strip to the end of negotiations on the final peace agreement." In other words and clearly stated, ANY unilateral approach - such as the announcement in September by the Arab-Palestinians of an independent state - will therefore be in stark contrast not only with the Oslo agreements, (which may be null and void), but also with resolution 242 of the UN that supports each party has the right to "live in peace within secure and recognized borders." The borders of a Palestinian state proclaimed are of course far from being "secure and recognized" the point of view of Israel ... Incidentally, Resolution 242 does not speak of at all about ''Arab-Palestinians'', but only of existing states, that is to say, Jordan, Egypt and Syria. 

The above text and documents, written in black and white and dating, for some, a century old are easy to read and understand.  Yet, it seems hardly anyone in the Prime Minister's office, the Minister of Foreign Affairs, or that of Hasbara, has taken the time to build a strategy based upon these documents.  Documents which clearly prove Israel is NOT the colonial and occupying power it is accused of being since 1967.

Moreover, when considering the media archives that preceded the Oslo Accords, it is evident that the official Israeli narrative concerning the Israeli presence in the West Bank aka Judea and Samaria was much less ''scared'' than it is today. Until 1993, Israel gave the impression of much less need of justification for founding Jewish settlements beyond the Green Line (Armistice Line). Until that time, Israel did not seem to plead for the international community, and the Arab world in particular, to grant Israel the ultimate favor of keeping the famous "settlement blocs."  According to Prof. Eliav Cho'hatman, lecturer at the Graduate Institute of Law "Shaare Mishpat”: “there is no doubt that the Oslo Accords marked the starting point of this attitude” which he deemed as "catastrophic."  He explained, “Until then, our leaders did not hesitate to brag of our rights over all the land of Israel from the point of view of international law, but since the agreements were signed, only security patterns are referred to beg that part of these territories we are entitled to remain in our hands." Prof. Cho'hatman says he sent to Prime Minister Binyamin Netanyahu during his first term (1996-1999) his work on the above, but regrets such effort was to no avail.

Do not just be right, but also know. 
There are other arguments for the legitimacy of the Jewish presence in Judea and Samaria.  For example, the fact these territories cannot be considered ''busy'' since they do not belong, de facto, to an enemy state. Nor can be considered the inconsistency of the term ''1967 borders”, which are NOT “borders” but the cease-fire line between Israeli and Jordanian armies at the end of the War of Independence of 1948.  Based upon Documents and International law, the only fully supported rational legal conclusion is Israel has the right to full expectations of “TERRITORIAL INTEGRITY”.  As such, and under International Law, any imposition by force or coercion of a border change is “an act of aggression”. 

Yet the above arguments are not raised. The reasons? They are many: Israel and the Israelis became wrongly convinced themselves that they were a colonial power and archives in the world will not be able to release this distorted image. Also in Jerusalem, it probably feels that right or not right, the world has already chosen sides. In the corridors of the Foreign Ministry, it is even said that under international law, "it is 99% opinion, and 1% policy of law." But in Israel, there is another expression that says it is not enough to be right, but you must also be smart. Thus, it is time now for the good of the State of Israel, to be smart and to make the world know what is right. There is also the issue of possession of which Israel is in possession of the territory.

The Jewish and Arab Refugee resolution   

Since the late 1940's the Arab States have expelled over a million Jewish people. The Arab States confiscated Jewish assets, personal assets, businesses, homes and Real Estate which amounts to over 120,000 Sq, Km (47,000 sq. mi.). The confiscated land is about 6 times the size of Israel and with the other confiscated assets it is valued in the trillions of dollars. The Arab States, like the Nazis, could not then, and cannot now justify such confiscation.  

The State of Israel has resettled the majority of the million Jewish families expelled from the Arab countries in Greater Israel. The Arabs claim that about 600,000 Arabs were displaced from their homes during the 1948 war. What seems to be forgotten is the fact most of the Arab population abandoned their homes at the request of the 5 Arab Armies who were sure to defeat the newly reconstituted Jewish State. About 300,000 Arabs stayed.

Since then the Arab and Jewish population has increased dramatically. Many new Arabs have moved into the area and many new Jews from the Holocaust and other areas have immigrated to Israel. It is about time that the Arab countries that expelled over a million Jewish families should resettle the Arab refugees in their vast lands (over 6 million sq. mi. of 70% is vacant). Instead of funding weapons and war, the Arab countries should utilize the funds to help the Arab refugees to relocate, build housing, schools, commerce and industry and resolve this tragedy once and for all. This simple solution will bring peace and tranquility to the region. 

Edited and modified by YJ Draiman

On the Question of the Legality of the Jewish Civilian Communities in the Disputed Areas of Judea, Samaria and Gaza

Within the context of international law, we draw attention to the Balfour Declaration of 1917. The text of the Declaration, as noted by the Palestine Royal Commission Report of 1937, p. 22, had been approved by U.S. President W. Wilson prior to its publication. Indeed, the Inquiry Commission established by President Wilson affirmed “that Palestine should become a Jewish State” and that “Palestine...was the cradle and home of their vital race”, a succinct statement of the essence of the principle of self-determination.

That document, issued by the British Government and later to serve as the basis for the League of Nations Mandate approved in 1922, refers on the one hand to “a National Home for the Jewish people in Palestine” while on the other, refers to “non-Jewish communities in Palestine”.

The distinction is not coincidental. National and historical rights are recognized clearly in the context of the Jewish people whereas the opposing parallel, that the land in question ‘belonged to an Arab people’ as it were, was not mentioned and purposefully ignored. What was included in the Balfour Declaration and the Mandate were the “civil and religious rights” of non-specified “non-Jewish communities”, without reference to Arabs at all.

Furthermore, the aforementioned Mandate text acknowledges that “recognition 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”. In Article 6, the administration apparatus of the Mandate, a temporary form of government, was charged with facilitating and encouraging “close settlement by Jews on the land, including State lands and wastelands not required for public purposes”.

It is worthy to note that the United States House of Representatives and the Senate adopted resolutions supporting the Mandate, on June 30, 1922 and May 3, 1922 respectively. President W. Harding signed a proclamation on September 21, 1922 that stated that “the United States of America favors the establishment in Palestine of a national home for the Jewish People...and that the holy places and religious buildings and sites in Palestine shall be adequately protected”. These acts reinforced the position fully understood that the rights accruing a national grouping belonged solely to the Jewish people and that non-Jewish elements could claim but protection for singular and individual buildings and sites.

What cannot be ignored is the historical connection of the Jewish people to this Land. The continuous presence of Jews in their homeland over many centuries under Jewish independent rule (tribal federation and monarchy) and centuries of foreign rule is itself a proof of right and legality. This presence included, indeed primarily so, the areas known as Judea, Samaria and Gaza. This presence was maintained despite destruction of political sovereignty, conditions of exile, oppression and persecution by the Babylonian, Greek-Syrian, Roman, Persian, Arab and Ottoman Empires. Despite the early favorable attitude of the British Empire, the pursuance of the internationally recognized goals of the Mandate necessitated acts of national liberation akin to those of the American Colonies in 1777, as well as other countries such as India, Ireland and African nations. This struggle for freedom forced Great Britain to turn to the United Nations in 1947.

The resolution adopted by the General Assembly of the United Nations on November 29, 1947 and accepted by the governing institutions of the Jewish People is to be seen as the fountainhead of the recognition of Israel as an Independent State possessing sovereignty. In rejecting that resolution and in declaring war on the nascent state of Israel, the Arab communities and neighboring states severed all legal connection to claims they did or would, in the future, make. In a sense, that rejection of the compromise proposal of partition revived the full and inalienable rights of Jews to all the territories included in the Mandate. These territories include Judea, Samaria and Gaza.

As a result of armed acts of aggressions, the Jordanian entity subsequently conquered portions of the Palestine Mandate and Egypt occupied the Gaza Strip district. The non-Jewish communities of the areas of Judea and Samaria, never having expressed themselves in criteria of nationhood and geo-political sovereignty previously, never established a state on this territory following the 1947 Resolution and, in fact, requested, at the Second Palestine Arab Conference convened in Jericho on December 1, 1948, that these territories be enjoined to the Hashemite Kingdom. Indeed, a resolution of unification was signed into Jordanian law on April 24, 1950, which purported to transfer to the Hashemite Monarchy sovereign rights to those areas of Western Palestine not under Israeli control following the 1948-49 War of Independence. That law negated the terms of international law, and, in any case, was only recognized by Great Britain and Pakistan.

In the matter of General Assembly Resolution 242, we refer you to the testimony of Eugene V. Rostow who participated in the negotiations of that Resolution. For example, in The New Republic issue of October 21, 1991, page 14, Mr. Rostow treats the issue of illegality. He makes it plain that Jewish settlement in Judea and Samaria is indeed legal, and that the Jewish right of settlement west of the Jordan River is “unassailable”.

We now briefly address another point. The status of the areas of Judea, Samaria and Gaza (YESHA) can in no way be conceived as being governed by the Fourth Geneva Convention for the simple reason that they are not occupied territories as defined in this document. Paragraph (6) of Article 49 of the said Fourth Geneva Convention is irrelevant to the question at hand in that Article 2 stipulates that the territory under issue must belong to a High Contracting Party. This is not the case, as the territory under discussion did not belong to any such Party. Furthermore, the drafting history of Article 49 was directed against the practices of the Nazi regime in forcibly transporting populations. It would border on the ridiculous to claim that Article 49 (6) which was fixed so as to prevent a return of heinous Nazi practices of Judenrein should now be understood as meaning that Judea, Samaria and Gaza (YESHA) must become empty of Jews.

Moreover, the Convention does not and could not prohibit the establishment of communities, towns or other civilian centers. Even government economic incentives cannot be considered as “mass deportation” or “transfer”. Over 90 percent of the communities populated by Jews are located on state land, not land privately owned by Arabs. Indeed, some of the communities are built on land that was either owned by Jews prior to 1967 or purchased afterwards.

One last point. The basis for an Arab claim to Palestine, formulated by the PLO which represents itself as the legal vehicle for that claim, is the Palestinian National Covenant. This document can only be described as racist and invalid on humanitarian grounds and unacceptable in international law. In fact, a Palestinian identity has always been a tactical move by Arabs who always viewed themselves as belonging to a greater Arab nation as in the case of the request of the General Syrian Congress on July 2, 1919 “that there should be no separation of the southern part of Lebanon [that is, the Palestine territory] from the Syrian country”, a position repeated ever since as, for example, by Yasser Arafat when he declared over the Voice of Palestine on November 18, 1978 that “Palestine is southern Syria and Syria is northern Palestine”.

In an interview with Matt Lauer on NBC’s The Today Show on October 1, 1997, Secretary of State Madeleine K. Albright related to building in Yesha and said: “I wasn't happy…I felt that going forward with those kinds of buildings was not helpful. Mr. Lauer pressed her and stated: “ It's legal. “

And Albright admitted: “It's legal.”

The need for this legal commentary stems from the fact that Arabs aligned with the PLO have announced that Jewish communities established in the territories of YESHA are a priori “terrorist” in nature and are a form of “aggression”. Having thus defined Jewish civilian in this way, Arabs make the claim that they are defending themselves and are justified in using all means at their disposal including shooting, bombing and stabbing such as has been used in this latest wave of violence. We reject such an approach as immoral, illegal and reminiscent of war crimes of the recent past.

Israel is the only state established whose legitimacy was officially acknowledged by the League of Nations and the UN. The League of Nations Mandate did not grant the Jewish people the rights to establish a national home in Palestine without boundary restrictions; it simply recognized a pre-existing right that had never been surrendered or forgotten. The Jewish people had been sovereign in their own land for 1,000 years before many were forced into exile. The establishment of the state of Israel did not represent a creation ex nihilo. These rights were upheld by the UN under Article 80 of the UN Charter after the UN replaced the League of Nations.