US Secretary of State John Kerry apparently does not know the law in his own country. According to Kerry, all Israeli construction east of the Green Line is now considered by the executive branch of the US Federal Government to be “illegitimate”. But the function of the executive branch is to carry out the laws of the land. So how is it that the Obama administration hadn’t heard of the 1922 Joint Resolution of Congress endorsing the Mandate for Palestine which allowed Jews to settle in all parts of their historic homeland except the Transjordan?
The 1922 Joint Resolution of Congress was passed unanimously by both the Senate and the House of Representatives. Thereupon, it was signed into law by US President Warren G. Harding. In the United States Congress, a joint resolution is a legislative measure presented to both House and Senate for approval and then sent on to the president for his/her signature. In legal terms, it is exactly the same as any other bill. The 1922 Joint Resolution of Congress on the Mandate for Palestine declared that Palestine would become the national home of the Jewish People, while the civil and religious rights of non-Jews would be protected. There is a clear and unmistakable political distinction within the Mandate between national rights and civil rights. In other words the Mandate for Palestine, an international document signed into law by the League of Nations and endorsed thereafter by US law, states unequivocally that Jewish national habitation is permissible on all territory west of the Jordan River.
The international legality of the Mandate for Palestine was not terminated with the collapse of the League of Nations. Instead, it was extended into the very charter of the United Nations. Article 80, under Chapter XII of the UN Charter states: “nothing in this Chapter shall be construed in or of itself to alter in any manner the rights whatsoever of any states or any peoples or the terms of the existing international instruments to which the Members of the United Nations may respectively be parties”. By 1948, Israel was a member of the United Nations. According to international law, under article 80 of the UN Charter, it had every right (national right) to settle its citizens on the West Bank of the Jordan River. However, the West Bank had been illegally occupied in an Arab war of aggression by the Hashemite Kingdom of Jordan.
In the aftermath of WWII the UN took up the issue of Palestine. After a period of study, they devised a resolution to deal with the conflicting claims. According to UN Resolution 181, the western portion of Palestine was to be partitioned into two states, one Jewish and the other Arab. The Jews of Palestine accepted this formula, but the Arabs categorically rejected Resolution 181. There is no doubt whatsoever that the Arab states and the Arab residents of Palestine were in violation of international law and were the aggressors in 1947-1948 War. To say otherwise is to say that up is down and down is up. Jordan’s illegal takeover of the West Bank and the Palestinian rejection of 181 had under international law terminated the resolution, thereby making it null and void. Within this historical context, the only document with force of law in this period remained the 1922 Mandate for Palestine. In 1922, the original territory of Palestine was partitioned at the Jordan River. An Arab state to the east (Transjordan) would live next to a Jewish State to the west of the river.
Certainly, there had been an armistice agreement between Israel and Jordan in the aftermath of the 1948 War. But the armistice was not a termination of the conflict, and the lines drawn were in no way international borders. On the contrary, the original division of Palestine at the Jordan River remained in force according to international law. None of the events in the period of 1947 through 1949 changed the status of the West Bank. By international law, it should have belonged to Israel. Instead, it was illegally occupied by Jordan.
By 1967, Jordan’s illegal occupation of the West Bank was nearing twenty years. From the time of the Mandate right through to the illegal occupation, an Arab policy of apartheid had been in force. No Jews were able to reside in the territories, and those who attempted to do so were slaughtered. Jews were not allowed to visit their holy places. In fact, their holy places were trashed, another Arab violation of international law. Jerusalem was divided and illegally occupied by the Jordanian authorities. The Western Wall of the ancient Jewish Temple was off-limits to Jews. While American tourists and US government officials visited the site with regularity, no one in the US State Department seemed to object that Jews were excluded. The 1922 Joint Resolution of Congress had become a forgotten document. The various US Secretaries of State were not pressuring the King of Jordan to leave the territories. In fact, the Arabs were building up for another round of aggressive war.
The Arabs used their illegal occupation of the West Bank in an attempt to “drive the Jews into the sea”. Throughout May of 1967, they gathered their forces. Finally, in early June an Egyptian commander took control of the Jordanian Army on the West Bank. Israel didn’t wait to be annihilated. In a brilliant preemptive strike, Israel gained control of the West Bank. This was the first time since the establishment of the Mandate that Jews would be allowed to establish their legal rights under international law. Finally they had control of the territory that they had never been allowed to live in, the West Bank of the Jordan River. With UN Resolution 181 null and void, the only international document with any legal authority was the 1922 Mandate. From June until November 1967, the Mandate reigned solo and supreme.
Then came UN Security Council Resolution 242. As of today, forty-six years later, only two international documents have authority in the West Bank (excluding Jerusalem). Those two documents are 242 and the original League of Nations Mandate for Palestine. These documents are not contradictory. They are complementary, and both documents are the framework for international law in the territories. Every US Secretary of State from William Rodgers (1969) to Hillary Clinton understood that while the Jewish towns and villages on the West Bank might be “unhelpful to the peace process”, they are most certainly not illegal or “illegitimate”. For the last ninety years, the Jewish people have been certain that, unlike any other country, the US understood the reality of the “rule of law”. After all, this is the guiding principle of constitutional democracy.
Secretary of State John Kerry’s use of the word “illegitimate” is an outrage. It is another example of how this current administration has tilted its policy away from Israel. The Republicans claim that President Obama will sooner or later throw Israel “under the bus”. Governor Romney said as much in the last election. It is time for Israel to remind its American friends that its rights are not to be taken lightly. Yes, the acquisition of territory by a war of aggression is illegal. But the liberation of legitimate territory long denied is not. UN Security Council Resolution 242 was written under Chapter VI of the UN Charter. Although Israel’s attack was a preemptive strike, under Chapter VI it is deemed defensive. According to international law, Israel is entitled to secure borders. It is also international law that Jews are entitled to live anywhere from the Jordan River to the Mediterranean. Perhaps it is time for the Congress of the United States to remind the executive branch of the 1922 Joint Resolution on the Mandate for Palestine. Maybe even a second joint resolution is in order. I wonder if President Obama (a constitutional lawyer and professor of law), would sign it.