Catherine Ashton - High Representative of the Union for Foreign Affairs and Security Policy/Vice-President of the European Commission - was merely parroting European Union policy when she told the European Parliament in Strasbourg on 30 December 2009:
"East Jerusalem is occupied territory, together with the rest of the West Bank.”
It was justification enough however for Israel’s Deputy Foreign Minister Danny Ayalon to pen an article in the Wall Street Journal on 30 December 2009 pointing out that Israel considers these territories to be “disputed territories” rather than “occupied territories” - the nomenclature adopted by the United Nations General Assembly and the International Court of Justice.
Mr Ayalon stated the reasons for Israel‘s position as follows:
“That’s because the land now known as the West Bank cannot be considered "occupied" in the legal sense of the word as it had not attained recognized sovereignty before Israel’s conquest. Contrary to some beliefs there has never been a Palestinian state, and no other nation has ever established Jerusalem as its capital despite it being under Islamic control for hundreds of years.”
Mr Ayalon criticised the perception that:
“... Israel is occupying stolen land and that the Palestinians are the only party with national, legal and historic rights to it. Not only is this morally and factually incorrect, but the more this narrative is being accepted,the less likely the Palestinians feel the need to come to the negotiating table.”
Mr Ayalon was affirming that the West Bank was at present “no man’s land” in which no recognized State - including Israel - had yet attained sovereignty.
The current claimants - Israel on behalf of the Jewish people and the Palestinian Authority (PA) on behalf of the Palestinian Arabs - are yet to finally negotiate on and conclude the allocation of sovereignty between them based on their competing claims.
It was therefore particularly pleasing that Ms Ashton stated:
“ Negotiations should be based on international law and respect previous agreements.”
This should be seen as a welcome statement from the European Union since the international law dealing with the legal status of the West Bank and Jewish rights to claim sovereignty there has been consistently and studiously - perhaps even deliberately - overlooked since Israel‘s capture of the West Bank from Jordan in the 1967 Six Day War.
The International Court of Justice (ICJ) is a prime example of such oversight.
In its 2004 advisory opinion on the legality of the security barrier constructed by Israel - the ICJ omitted to even mention - let alone consider - the international law applicable to the entitlement of the Jewish people to reconstitute the Jewish National Home in the West Bank by close settlement on West Bank land - including State lands and waste lands not required for public purposes.
These rights were vested in the Jewish people pursuant to Articles 94 and 95 of the 1920 Treaty of Sevres, the League of Nations Mandate for Palestine 1920 and Article 80 of the United Nations Charter.
The failure of the ICJ to consider these Jewish rights is exacerbated by the fact that one of the Judges who heard the security barrier case - Judge Elaraby - gave this warning to his fellow 14 judges sitting on that case:
"... the international legal status of the Palestinian Territory merits more comprehensive treatment" .
Judge Elaraby identified the need for such a review saying:
"A historical survey is relevant to the question posed by the General Assembly, for it serves as the background to understanding the legal status of the Palestinian Territory on the one hand and underlines the special and continuing responsibility of the General Assembly on the other. This may appear as academic, without relevance to the present events. The present is however determined by the accumulation of past events and no reasonable and fair concern for the future can possibly disregard a firm grasp of past events. In particular, when on one or more than one occasion, the rule of law was consistently sidestepped."
The failure of the ICJ to consider the legal status of the West Bank was therefore inexplicable.
Judge Elaraby continued:
"The point of departure, or one can say in legal jargon, the critical date,is the League of Nations Mandate which was entrusted to Great Britain"
True the Arab League has never accepted the Mandate in which inalienable Jewish rights to closely settle the West Bank were created. But they were created by the unanimous vote of the then members of the League of Nations, still do exist for the benefit of the Jewish people today and are entitled to be taken into consideration in negotiations on the future sovereignty of the West Bank.
The Jerusalem Post reported on 25 September 2008 that there were 13.3 million people around the world who define themselves as Jewish and who do not belong to any other faith according to a survey conducted by Prof.Sergio Della Pergola from the Jewish People Policy Planning Institute and the Harman Institute of Contemporary Jewry at the Hebrew University.
5.55 million Jews live in Israel and 7.75 million live outside Israel, meaning 58.7 percent of World Jewry now resides outside the Jewish state.
The reconstitution of the Jewish National Home in the West Bank is as much a concern for a large number of those Jews living outside Israel as those who live within Israel - if not for themselves going to live there then for their children and future generations who might want to do so.
Ms Ashton is therefore to be commended on drawing attention to the need to base any resumed negotiations on international law.
Ms Ashton further stated:
“The EU will continue to support and work closely with the US via the Quartet [America, Russia, EU and the United Nations - author]. The Quartet needs reinvigoration. The current stalemate in the peace process demands it. The Quartet can provide the careful yet dynamic mediation that is required.”
The first steps in that invigoration should involve the Quartet gaining a full understanding of:
1. The current legal status of the West Bank and
2. Jewish rights to claim sovereignty in the West Bank under international law.
Ms Ashton said she will be travelling to the region shortly adding:
“ My main objective will be to meet the main actors and see first hand how the EU can be a force for change. I think we all share the overall and overriding priority of a resumption of Israeli-Palestinian negotiations. Not negotiations for negotiations sake but negotiations to achieve a peace deal and turn the page. We cannot, and nor, I doubt can the region tolerate another round of fruitless negotiations. Negotiations have taken place on and off for several years starting with the Oslo Declaration of Principles signed in September 1993.”
Negotiations to achieve that peace deal can only realistically take place within the context of the European Union recognizing Jewish rights to sovereignty in the West Bank and comprehending the current legal status of the West Bank.
Otherwise her visit to the region will end up in total failure like the hundreds - if not thousands - of earlier attempts at peace making by well intended but totally misinformed envoys.