Half-Baked “Legal” Arguments about the Occupation and Borders

In recent years, it has become commonplace in discussions about Israel, the settlements and the “occupation” for those on the political right to insist that the West Bank is not occupied but a part of Israel under International Law from the time of the San Remo Conference (1920). Not only is this line of reasoning wrong, and has never actually been put forth by the Israeli Government’s own attorneys when arguing West Bank related cases in Israel’s High Court of Justice (HCJ), but, if the right-wing claims were true, it would end Israel as a Jewish and Democratic state and open the door to a Palestinian “right of return.” Unintentionally, the political right is making the case for Arab Palestine from the river to the sea.

  1. Occupation

The argument against even the existence of an occupation goes like this: there has never been a Palestinian State and from 1949-67, Jordan illegally occupied the West Bank but it was never the legitimate sovereign. Thus, since there is no sovereign state for Israel to return the land to, at best, it is disputed, not occupied territory.

International Law — and HCJ precedent — however, makes clear that the status of occupation does not relate to any legal title to land. Article 4 of the 4th Geneva Convention states “Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.” Israel captured and holds territory, which it has not annexed, and which is inhabited by people who are not Israeli citizens and who, when interacting with Israel, are adjudged by Israeli military law. This, de jure, makes Israel the occupying power. In Beit Sourik v. The State of Israel, the HCJ, following established precedent since 1967, wrote “The general point of departure of all parties — which is also our point of departure — is that Israel holds the area [Judea and Samaria] in belligerent occupation (occupatio bellica).” In all these cases, State of Israel as respondent never countered with “what are you talking about!? We can’t occupy our own land!” The IDF or Government, be it Labor or Likud, always conceded that it was operating under a legal framework of a military occupation.

  1. But San Remo and the Mandate!

The most obvious problems with arguing that San Remo and the Mandate set the borders of the State of Israel is that (a) the term “all of Palestine” as opposed to merely “in Palestine” for a Jewish National Home was never used; (b) the Mandate Charter qualified by entrusting  “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“, giving wide discretion on what the final frontiers may be; and (c)  Israel has rejected that it is a successor to the Mandate from its very beginning.

In May 1948, Eliahu Epstein, Agent for the Provisional Government  of Israel wrote in a letter to President Truman seeking recognition from the U.S government, “that the state of Israel has been proclaimed as an independent republic within frontiers approved by the General Assembly of the United Nations in its Resolution of November 29, 1947”. No mention of San Remo or the Mandate was made for territorial claims. In Shimshon Palestine Portland Cement Factory vs. The Attorney General, a Tel-Aviv registered company in February 1948 had sued the Palestine Government for the return of the sum of 2539 Palestine Pounds; the applicant argued that the now State of Israel was the legal successor to the Mandate of Palestine. The HCJ rejected this argument and wrote “The territory of the State of Israel does not coincide with all the territory under the former Mandate. . . . Consequently the problem before us is not dissimilar to the problem which a following the break-up of the Austro-Hungarian Empire after the First World War.” One could not claim that this was simply the court acknowledging in 1950 that not all of Eretz-Israel was in Israeli hands since the applicant here was based in Tel-Aviv. Rather, it shows a clear understanding by the highest legal authorities in Israel that the Mandate had terminated in its entirety and whatever had been the Mandate’s form or borders was no longer applicable to the new State.

  1. Be careful what you wish for

The most serious problem however with arguing that the Mandate set the borders of Israel, and one the far-right do not account for, is what would happen if their argument were true.

If by law, all the land from the river to the sea is ‘Israel’, then that means millions of Palestinians in the West Bank and Gaza are Israelis, and thus entitled to full civil liberties, including the right to vote. The same Mandate that supposedly sets Israel’s borders also states that nothing shall be done to prejudice the civil rights of the Palestine Arabs. But denying millions of people a voice in the state that governs them by definition prejudices their civil rights and would be in violation of Israel’s own Declaration of Independence and Basic Law. In addition, Israel is a signatory to human rights treaties on nationality and citizenship, which would preclude treating Palestinians as permanent aliens or stateless, second-class subjects (e.g. Convention on the Reduction of Statelessness “A Contracting State (e.g. Israel) shall not deprive a person of his nationality if such deprivation would render him stateless.”; “Contracting State shall grant its nationality to a person born in its territory who would otherwise be stateless.”). If the “true” and “legal” borders of Israel are and have always been that of the Mandate, Israel, by its own signature, would be required to give nationality to all Arabs from Ramallah to Gaza, who, of course, would otherwise be stateless since the Right-Wing likes to remind us to no end that there “never was a Palestinian State” and that Jordan’s occupation of the West Bank was illegal. According to Israeli Professor Yoram Dinstein, a leading specialist on international law, when territory is annexed, citizenship is automatically imposed upon the territory’s inhabitants without their application or request and when the Knesset first passed its nationality law, it included as Israeli citizens persons who had been Mandate Palestine citizens, now living in Israeli territory.  If Israeli territory is “by international law” everything between the Jordan River and the Mediterranean, then Palestinians are in fact, Israelis, and have been for 70 years, and are due all the rights that come with being Israeli, including the suffrage.

Moreover, if one reads legal arguments for a Palestinian Right of Return, one finds incredible agreement with the claims put forth by right-wingers in the comments sections of Times of Israel and The Jerusalem Post or “pro-Israel” websites. An argument for a Palestinian Right of Return, in part, hinges on the theory that Israel is the successor to the Mandate. Articles on Nationality of Natural Persons in Relation to the Succession of States, which was adopted by the UN, specifically provides for a right of return in the law of state succession for residents of a territory that underwent change of sovereignty, either from one country to another, or a former possession transformed into an independent, sovereign state.

I highly doubt support for a right of return for millions of Palestinian refugees or the granting of full citizenship to 5 million more Arabs is what the folks at Bayit Yehudi and their ilk have in mind when arguing that San Remo and the Mandate set the borders of the State of Israel, but that is exactly where taking their argument seriously (which, prudently, no Israeli government has yet done on an official capacity or has argued in a court of law) would lead us. It is more likely that as with virulent anti-Zionists, they pick and choose which aspects of “international law” they feel buttress their ideological presuppositions and conveniently ignore those that do not.

What the Right cannot and has never been able to do is square the circle of keeping Israel both a Jewish and Democratic state. They want all the land, but not all the people living on the land. Unfortunately for them – land and people are a package deal and all the talk about San Remo or the Mandate like it is Torah from Sinai cannot obscure this existential problem facing Israel and Zionism.

Upon concluding the armistice agreements, David Ben Gurion said: “We could have captured all of Palestine militarily, and then what? We’ll make it into one state. But the state would want to be democratic, and we will be a minority . . . . When we faced the question of the completeness of the land without a Jewish state, or a Jewish state without the whole land, we chose a Jewish state without the completeness of the land.” Israel, and its supporters, desperately needs more of Ben Gurion’s pragmatism and acceptance of reality, and much less retreads of ideology disguised as intellectualism designed for an echo chamber.

About the Author
Lawyer based in New York City, with a keen interest in Israeli politics, who has relished being in the minority since his days as a Jew in Catholic school.
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