The fence is on whose land?

[Published July 2004]

The construction of Israel's security fence on land within the West Bank has aroused the ire of 90 of the 191 members of the General Assembly of the United Nations, who claim such land is "Occupied Palestinian Territory".

Is this true or is this land in fact "Jewish National Home Territory" in international law?

Are those 90 members of the United Nations and their legal advisors aware of the terms of the Mandate for Palestine and Article 80 of the United Nations Charter, which confer on Israel the right to construct the fence on its present location?

Why has the Secretary General, Kofi Annan, submitted to the International Court of Justice, a dossier purporting to set out the relevant documents relating to the case, yet has excluded the League of Nations Mandate for Palestine, which is the definitive legal document on who is entitled to build on West Bank land?

The West Bank is an area of land comprising about 5% of the territory once called Palestine administered by Great Britain from 1920 to 1948 pursuant to the Mandate for Palestine created by the League of Nations.

The West Bank was called Judea and Samaria in the Bible and had been continuously so described since then right up to the British War Maps of the 1940's and in the Mandate documents themselves.

The change of name from Judea and Samaria to the West Bank in 1950 was an attempt by Jordan to blot out the Jewish connection with this land, matching that of the Romans who changed the name of the country from its Hebrew name "Eretz Yisrael" (the land of Israel) to "Palestina" about 2000 years earlier so as to erase any recognition of Jewish sovereignty, which had finally succumbed to the might of the invading Roman Legions.

This semantic obsession is mirrored once again in the description of the land as "Occupied Palestinian Territory" in the brief presented to the International Court of Justice by the 90 United Nations members and their front man, Kofi Annan.

Again as in the past, this pathetic attempt to propagandise the status of this area will backfire on those who rely on it to assert land rights to the total exclusion of the principal beneficiary recognized in international law - the Jewish people.

I will however use the term "West Bank" to describe the area so as not to be accused of necessarily favoring the use of a name with obvious Jewish connotations and connections to advance Jewish rights in that area.

This is not necessary since international law has expressly recognized that Jewish rights do exist and still remain unfulfilled in the West Bank, irrespective of what name that area is given.

The Mandate for Palestine was the legally binding expression of the International Community of Nations - the League of Nations.

The Mandate document:

1.recognized the historical connection of the Jewish people with Palestine and the grounds for "reconstituting" their national home in that country;
2.created for the first time an identifiable territory called "Palestine" with defined territorial boundaries which incorporated today�s Israel, the West Bank and Gaza, and Jordan
3.safeguarded the civil and religious rights (but not any political rights as none were intended to be conferred) of the existing non-Jewish communities in Palestine;
facilitated Jewish immigration and encouraged "close settlement by Jews on the lands, including State lands and waste lands not required for public purposes" (Article 6);

All this might have been ancient history but for the occurrence of six subsequent events between 1945-1967, which together form the legal basis for Israel's construction of its present security fence in the West Bank.

The six events were the birth of the United Nations in 1945, the demise of the League of Nations in 1946, the United Nations Partition Plan of 1947, Israel's War of Independence in 1948, the decision of the International Court of Justice in 1950 in the South West Africa case, and the Six Day War in 1967.

Jordan (then called Transjordan), which had comprised 75% of the Mandate for Palestine, was granted its independence in 1946 at the last session before the League of Nations was dissolved. Although originally designated as part of the proposed site for the Jewish National Home, not one Jew then or until today has been allowed to live in this part of former Palestine.

The Arab inhabitants of Palestine were thus granted a sovereign State in 75% of Palestine, without a shot having to be fired in anger. Not a bad result, considering the Arabs had initially been granted no political rights there in 1920.

Arab political rights had been secured in other vast tracts of the former Ottoman Empire that today bear such names as Lebanon, Syria, Saudi Arabia and Iraq - areas hundreds of times larger and far richer than the pitiful area designated as the site for the reconstitution of the Jewish National Home.

The remaining 25% of Palestine, however, still remained under the League of Nations Mandates System, as did a number of other territories around the world, where the terms of those Mandates were yet to be completed at the time of the demise of the League of Nations.

To deal with these continuing Mandates, Article 80 was introduced into the United Nations Charter.

Article 80 provided that nothing in the International Trusteeship System set up under the United Nations Charter should be construed in or of itself to alter in any manner the rights whatsoever of any states or peoples or the terms of existing International Instruments to which members of the United Nations might respectively be parties.

The importance and relevance of this clause for the West Bank was not to become fully evident until 1950. A lot was to happen within the next three years to bring Article 80 into play in the West Bank.

The United Nations Partition Plan of 1947 had attempted to resolve the issue of sovereignty in that part of Palestine then still subject to the Mandate. The proposal was accepted by the Jews and rejected by the Arabs.

Had the Arabs accepted that proposal, Article 80 of the UN Charter would not need to be discussed today, and the proceedings before the International Court of Justice would not be happening.

After rejecting that proposal, six invading Arab armies marched into Palestine in May 1948 in a war to wipe out the newly declared State of Israel and replace it with Arab sovereignty in the entire 25% of the remaining Mandate.

The Arabs failed in this attempt, leaving Israel in sovereign control of the entire area with the exception of the West Bank, which came under the control of Jordan, and Gaza, which came under Egyptian control.

Israel was then recognized by the United Nations as the sovereign authority in 19% of the original Mandate for Palestine, whilst Transjordan continued to enjoy sovereignty in 75% of the original Mandate granted to it in 1946 and additionally it had gained control of another 5% - the West Bank - at the conclusion of the 1948 war.

There was no recognized international border between Israel and the West Bank, only an armistice line delineating the positions of the warring parties at the time of cessation of hostilities. This position still exists today.

The West Bank and Gaza - in total just 6% of Palestine - then remained the only territories of the Mandate in which sovereignty was unallocated between Arabs and Jews.

In 1950, when Transjordan changed its name to Jordan, it attempted to annex the West Bank but only Britain and Pakistan recognized the annexation.

In the same year the International Court of Justice in an advisory opinion on South West Africa (1950 I.C.J.Reports 128) decided that the substantive obligations of the Mandate over that territory continued in force despite the dissolution of the League of Nations. The Court affirmed that these obligations remained the essence of "the sacred trust of civilization" despite the dissolution of the League of Nations.

The ramifications of this case as applied to the mandated area of the West Bank, are, of course, highly significant

This case confirmed that Israel's right to closely settle and reconstitute the Jewish National Home on land within the West Bank was not extinguished by the demise of the League of Nations.

The Mandate continues to have important legal significance until this very day, because of the provisions of Article 80 of the United Nations Charter - something that has been consistently overlooked and ignored by the world body and those of its members who have taken their case to the International Court of Justice this week.

Jordan continued to occupy and administer the West Bank from 1948 until 1967 when Israel then gained control as a result of the 6-Day War. No mention was ever made during those 19 years of this land being "Occupied Palestinian Territory", nor was Palestinian Statehood in the area, with Jerusalem as its capitol, ever raised or demanded.

When control of the West Bank came back into Jewish hands in 1967 for the first time since its loss to the Roman Legions almost 2000 years before, Jews then began returning and settling in these areas as they were permitted and encouraged to do under Article 6 of the Mandate, in some cases returning to places from where they had been driven out in the 1948 War.

These six events and the Mandate itself have now become of the utmost importance in 2004 because they establish that:

1. The West Bank and Gaza are not "Occupied Palestinian Territory" but rather "Jewish National Home Territory" designated as such in the League of Nations Mandate for Palestine and Article 80 of the United Nations Charter.
2. Jewish settlements presently established in the West Bank and Gaza accord with the objectives of the Mandate which encouraged close settlement of these areas by the Jews. They are not illegal in International Law;

The Arab States have never accepted the legality of the Mandate for Palestine or anything subsequently flowing from it. They seem to have convinced Kofi Annan, that he can ignore it as well.

They have now run off to the International Court asking it to set aside a considerable volume of international law, as though it never existed, and have sought to make their own prejudgment as to who is entitled to build and what can be built on the land in the West Bank where the security fence is located.

International law clearly supports Israel's right to build that security fence in the West Bank providing it is either State land , waste lands not required for public purposes, or privately owned land if agreed with the owner of that land.

This situation will continue until sovereignty of the West Bank is determined between Israel and its Arab neighbours.

The United Nations endorsement of the Road Map can be seen as a positive step by the United Nations to bring the Mandate to a final resolution.

But it does not and cannot stop Israel's construction of its security fence until the provisions of the Road Map have been fully implemented and a Peace Treaty signed