Summary ... To truely determine the legal status of the area known as Yesha (Judea, Samaria and Gaza), it is important to understand the different types of UN resolutions. Once this is understood, it becomes clear there is no such thing as the Israeli-occupied territories. (If anything, they are actually Arab-occupied territories.)
One of the most misused, misapplied and misunderstood definitions in the dictionary of the Arab-Israeli conflict is the term "occupied territories". The vast majority of people simply do not know the facts or misinterpret them, thus completely distorting the real picture of the land distribution between the Arabs and the Jews. The truth of the matter is that, according to international law, the Jews have the complete and unquestionable right to settle the territories of Judea, Samaria and Gaza (collectively known as Yesha). Not a single enforceable international document exists that forbids them from settling the lands of Yesha.
On the contrary, the only existing enforceable document actually encourages Jewish settlement. This document was created on April 24, 1920 at the San Remo Conference when the Principal Allied Powers agreed to assign the Mandate for the territory of Palestine to Great Britain. By doing so the League of Nations "recognized the historical connection of the Jewish people with Palestine" and established "grounds for reconstituting their national home in that country." Article 6 of the Mandate "encouraged ... close settlement by Jews on the land," including the lands of Judea, Samaria and Gaza (Yesha).
There is nothing whatsoever in the Mandate that separates Yesha from the rest of the mandated territory. That means that the right of the Jews to settle the land spreads to the whole of Palestine. As a side note it is worth mentioning that the 76% of the territory of Mandated Palestine known today as Jordan, were [sic] not permanently exempt from settlement by the Jews either. Article 25 only allowed to "postpone or withhold application of [this] provision."
With the disbanding of the League of Nations, the rights of the Jews to settle the territories of Palestine, including Yesha, were not hurt. When in 1946 the United Nations was created in place of the League of Nations, its Charter included Article 80 specifically to allow the continuation of existing Mandates (including the British Mandate). Article 80 stated that "nothing ... shall be construed in or of itself to alter in any manner the rights whatsoever ... of any peoples or the terms of existing international instruments to which Members of the United Nations may respectively be parties."
Then in November 1947 came time for Resolution 181, which recommended the Partition of Palestine. Like all UN Resolutions pertaining to the Jewish-Arab conflict it was not enforceable. It was simply a recommendation, and the Arab countries rejected it. As the Syrian representative in the General Assembly stated:
"In the first place the recommendations of the General Asembly are not imperative on those to whom they are addressed.... The General Assembly only gives advice and the parties to whom advice is addressed accept it when it is rightful and just and when it does not impair their fundamental rights"(1).
If the resolution had been implemented maybe it would be possible to argue that it replaced the San Remo Conference resolution, which had legitimized the rights of the Jews to settle in any place in Palestine. However, it was not only rejected by the Arabs, but in violation of the UN Charter they launched a military aggression against the newly reborn Jewish state thus invalidating the resolution. By the time of the ceasefire at the end of the War of Independence there was still no other enforceable document pertaining to the rights of the Jews to settle Eretz Yisrael - they remained intact.
Now we approach the most misunderstood aspect of the scope and application of international documents. In order to resolve the puzzle of the "occupied" territories, one must clearly distinguish between the different types of resolutions passed by the United Nations. Misconceptions about the issue led to the question of a double standard that was constantly raised by the Arabs after the Persian Gulf War. The Arabs were unable to understand why from Iraq the UN demanded compliance with the decisions of the international body while Israel was not forced to comply with UN resolutions.
On April 3, 1998 Swedish Foreign Minister Lena Hjelm-Wallen, well known for championing the Arabs' position, in an interview with the London al-Quds al-'Arabi, gave an explanation of this "paradox." She was asked, "What about the double standards that the United States and Europe adopt when it comes to Arab issues?" She answered,
"I understand this view, which is common in many Arab countries. Nevertheless, the UN resolutions passed on Iraq are different, because they are binding for all nations according to Article 7 of the UN Charter. Meanwhile, the resolutions passed against Israel are not subject to Article 7 of the Charter."
To better understand the way UN resolutions work, it is worth reading an open letter by Uri Lubrani, coordinator of Israeli activities in Lebanon, addressed to Lebanon's Foreign Minister Faris Buwayz and published on February 27, 1998 in the Paris newspaper al Watan al-'Arabi. Although the letter was written regarding Resolution 425, it talks about all resolutions pertaining to the Arab-Israeli conflict. Uri Lubrani wrote the following,
"... There are two types of resolutions in the Security Council. The first type are resolutions passed on the basis of Chapter Six of the UN charter that relates to the settlement of disputes through peaceful means. Such resolutions are considered recommendations. They are not binding, and they do not require immediate implementation.... The second type of resolutions are based on Chapter Seven of the UN charter.... This chapter grants the UN Security Council resolutions an implementative authority and commits the international community to use force if necessary to implement these resolutions.... None of the UN Security Council resolutions pertaining to the Arab Israeli conflict, including Resolution 425, were passed on the basis of Chapter Seven. They were passed on the basis of Chapter Six of the UN charter, which is the basis also of UNSC Resolutions 242 and 338 ."
Since no mandatory UN Resolution exists pertaining to the Arab-Israeli conflict, we are left with the San Remo Conference decision that governs land ownership in Palestine. That means that not a single enforceable internationally valid document exists that prevents or prohibits the Jews from settling anywhere in Judea, Samaria, Gaza and all the rest of Eretz Yisrael. Or, to put it differently, from the standpoint of international law for the Jews it is not an occupied land.
This conclusion was confirmed not long ago by an unexpected (for Israel) source. It is hard to argue with the fact that James Baker, former US Secretary of State, was not the best friend of the Jewish state. However, he categorically rejected the mislabeling of the lands of Yesha. This happened at the Middle East Insight Symposium in Washington on May 4, 1998. Hoda Tawfik, from the newspaper Al Ahram asked him, "What do you think is right? That these are occupied Arab territories and not disputed territories?" Baker replied, "They're clearly disputed territories. That's what Resolutions 242 and 338 are all about. They are clearly disputed territories."
All of this means that when the Jews build settlements in Yesha, they are not building them on "occupied" territories. If one wants, one may call them "disputed" territories, as Baker did. However, this will still not change the fact that from the standpoint of international law it is the very land where the Jews were encouraged to settle.
And as a final note, it should not be surprising that the San Remo Conference plays such an important role in this particular case. The majority of the other players in the conflict: Egypt, Syria, Iraq, Lebanon, Jordan, etc. gained sovereignty over their territories based on the decisions of exactly the same conference. The Jews finally deserve to settle freely on their territories as well. It is time to stop labeling them "occupied".
1. Abba Eban. Voice of Israel. Horizon Press, New York, 1957.
[ Boris Shusteff | Published: May 28, 2009 | Original: May 16, 2001 ]
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