United Nations Vote Presages State Sponsored Global Anti-Semitism

[Published September 2004]

The United Nations has embarked on a dangerous path that could unleash an unprecedented campaign of state-sponsored global antisemitism which needs to be swiftly denounced and halted in its tracks.

This threatening prospect follows member States voting by 150-6 to endorse the opinion of the International Court of Justice [ICJ] requiring the immediate demolition of Israel’s Security Fence in Judea and Samaria and declaring Israeli settlements there (including East Jerusalem) to be in breach of international law.

The ICJ has effectively branded 300,000 Jews living in Judea, Samaria and East Jerusalem as land robbers illegally occupying someone else’s land.

150 out of the 191 member States of the U.N. have unquestioningly accepted that opinion in the knowledge that it was given by 15 Judges drawn from 15 countries, all supposedly appointed for their outstanding legal qualifications as pre-eminent jurists and experts in international law.

U.N. Resolutions based on this ICJ opinion will now come thick and fast calling for the demolition of the Security Fence, the forced removal of all Jews from Judea, Samaria and East Jerusalem and reparations followed by sanctions on Israel if these demands are not carried out.

The Observer for Palestine at the U.N. has already stated it was time now for implementation, compliance and, at a later stage, additional measures, which ominously he failed to specify.

Not only Israel will suffer the fall-out from this barrage of righteous condemnation at future meetings of the U.N.

Jews living in many of those 150 member States endorsing the ICJ opinion such as France, United Kingdom, Argentina, Italy, Russia, Germany, Switzerland, Belgium and Holland will be exposed to far greater dangers to their personal safety and their institutions than they experienced prior to the ICJ opinion.

Even the large Jewish populations of the United States and Australia, whose countries both courageously voted to reject the ICJ opinion, or Canada who abstained, will not be immune from the forthcoming campaign of vilification of Jews designed to capitalize on this ICJ opinion.

The groundwork for this heinous campaign has been carefully planned over a number of years. Countless resolutions declaring Judea, Samaria and East Jerusalem to be “Occupied Palestinian Territory” and Jewish communities in Judea, Samaria and East Jerusalem to be “illegal in international law” have been passed by automatic majorities of Arab and Third World countries in the General Assembly and various Committees of the United Nations.

Now these Arab and Third World countries have had their resolutions anointed with judicial respectability.

But that ICJ opinion is fundamentally flawed and no reliance can be placed on it.

The ICJ incredibly failed to consider a comprehensive body of international law that specifically establishes that Jews have every right to live in Judea, Samaria and East Jerusalem and to protect themselves from the murderous attacks of their Arab neighbors.

The only obstacle now standing between the anticipated diplomatic onslaught at the U.N. based on this flawed opinion and the projected threat to Jews worldwide is Article 80 of the United Nations Charter, which binds all member States.

Article 80 was completely ignored by the United Nations in all resolutions passed on Judea, Samaria and East Jerusalem in the build-up to the ICJ case. It was not mentioned by U.N. Secretary General Kofi Annan in the voluminous dossier of documents furnished by him to the ICJ. It was never discussed or considered in the 64-page judgment of the ICJ or the separate decisions issued by the judges.

Article 80 preserves the right of the Jewish people to live in Judea, Samaria and East Jerusalem pursuant to rights first vested in them in international law in 1920 and codified in the League of Nations Mandate for Palestine in 1922.

Jews indeed had lived in Judea, Samaria and East Jerusalem until 1948 when they were driven out by invading Arab armies. Jews returned to live there again after those same Arab armies were defeated in the Six-Day War in 1967.

United Nations records attest to the critical importance of Article 80.

On 8 May 1947, Rabbi Abba Silver representing the Jewish Agency addressed the First (Political) Committee of the United Nations and he had this to say about Article 80:

“The Balfour Declaration, which was issued by His Majesty’s Government as a ‘declaration of sympathy with Jewish Zionist aspirations’, declares: ‘His Majesty’s Government views with favor the establishment in Palestine of a national home for the Jewish people.’ The mandate, in its preamble, recognizes ‘the historical connection of the Jewish people with Palestine’ and ‘the grounds for reconstituting’ - I call your attention to the word ‘reconstituting’ –‘their national home in that country’.”

“These international commitments of a quarter of a century ago, which flowed from the recognition of historic rights and present needs, and upon which so much has already been built in Palestine by the Jewish people, cannot now be erased. You cannot turn back the hands of the clock of history.”

“Certainly, the United Nations, guided by the great principle proclaimed in its Charter, ‘to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained’, can never sanction the violation of treaties and of international law.”

“With this situation and similar situations in mind, a specific provision, you will recall, was written into the chapter of the Charter of the United Nations which deals with territories which might become trusteeship territories, and which is therefore especially applicable to territories now under mandate. This is Article 80 of the Charter …”

In evidence given to the United Nations Special Committee on Palestine on 7 July 1947, David Ben-Gurion as a representative of the Jewish Agency said of Article 80:

“This is the special Article of the Charter which applies to Palestine. It was introduced only because of Palestine.”

There you have it in black and white - a specific article dealing with Palestine inserted in the United Nations Charter having a crucial bearing on the Court’s opinion is not given the light of day by the U.N. or the ICJ. This could not possibly be due to ignorance or oversight. Answers need to be given to explain this scandalous behavior.

For this reason the ICJ opinion should not be granted any further recognition or credibility and should be condemned for what it really is – a decision of a biased and politicized court that deliberately failed to look at a critical area of law legitimizing Jewish rights to settle in Judea, Samaria and East Jerusalem.

The failure of the ICJ to consider Article 80 has now set the stage for a possible outburst of antisemitism worldwide.

Jews were denied their right to live in 77% of Palestine in 1923. This area is today called Jordan and not one Jew lives there.

Jews also offered to surrender their right to live in the whole or parts of Judea and Samaria [5% of Palestine] in return for peace and an end to violence in 1937, 1948, 1967, 1979, 1993 and 2000 and still hold out hope that this might be possible. Until now there has been outright Arab rejection of any proposal. This Arab mindset will only harden in the light of the ICJ decision and the votes of those 150 member States.

Some soul searching is urgently required by the large number of those 150 States who believe justice must be dispensed in a fair and impartial manner and without fear or favor. They need to urgently review their initial endorsement of the ICJ opinion and repudiate it rather than give it any further credence.

They cannot possibly continue to endorse the ICJ opinion in future votes at the U.N. knowing it is so fatally flawed and then claim to have been unaware of what they were unleashing in their own countries and worldwide by adopting such a voting pattern.

Let them evaluate Article 80 and the words of David Ben-Gurion and Rabbi Silver and then make up their minds on their future voting intentions. Let their representatives demand that the ICJ and Mr. Annan explain why they ignored the ramifications of Article 80. Let those nations whose agenda is demonizing Jews stand alone in further support of the ICJ decision and be exposed for what they truly represent.

Those 150 countries must have the decency and humanity to have a second think about their earlier decision and not continue to be a partner in the ongoing attempt to use the discredited ICJ opinion as a battering ram against Jewish people wherever they happen to live.


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International Ignorance Incites Injustice

[Published July 2004]

The failure of the 15 judges of the International Court of Justice (ICJ) to fully examine the international legal status of the West Bank is an error of monumental proportions which has fatally flawed the advisory opinion it has given to the United Nations on Israel's right to erect a security fence in the West Bank.

The ICJ appears to have been totally ignorant of the existence of Jewish rights in the West Bank arising under international law created by Article 95 of the Treaty of Sevres 1920 and the Mandate for Palestine 1922, and preserved by article 80 of the United Nations Charter.

It is hard to believe that a Court composed of such eminent jurists could have acted in such an incompetent and reckless manner to the detriment of the Jewish people.

Israel's presence in the West Bank extends far beyond that of being a military occupier since 1967. Israel also has the right in international law to facilitate the settlement of Jews in the West Bank for the purpose of reconstituting the Jewish National Home in that area.

Any action taken by Israel in the West Bank must accordingly be considered from this dual perspective, which the ICJ has failed to do.

Ironically only Judge Elaraby, an Egyptian judge whose presence on the Court was unsuccessfully objected to by Israel, was prepared to state that "the international legal status of the Palestinian Territory merits more comprehensive treatment" than the Court gave to this fundamental issue.

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 adopt this principled stand before reaching its decision is inexplicable and is deserving of the strongest condemnation. Its judgement, as a result, is not worth the paper it is written on.

Judge Elaraby said: "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" by the League of Nations.

Rather than examining the terms of the Mandate document and articles 94 and 95 of the Treaty of Sevres, both the Court and Judge Elaraby incorrectly asserted that the Mandate for Palestine was established under paragraph 4 of Article 22 of the Covenant of the League of Nations.

Paragraph 4 of the Covenant provided that "certain communities, formerly belonging to the Turkish Empire have reached a stage of development where their existence as independent nations can be provisionally recognized subject to rendering of administrative advice and assistance by a Mandatory until such time as they are able to stand alone".

Article 94 of the Treaty of Sevres clearly indicated that Paragraph 4 did apply to the Arab inhabitants living within the areas covered by the Mandates for Syria and Mesopotamia, which were created at the same time as the Mandate for Palestine.

Article 95 of the Treaty of Sevres however made it abundantly clear that paragraph 4 was not to apply to the Arab inhabitants living within the area covered by the Mandate for Palestine. This Mandate was to be of a unique character and nature unlike any other Mandate established by the League of Nations.

Unlike the Mandates for Syria and Mesopotamia, the Mandate for Palestine

1. was not established under paragraph 4 of Article 22 of the Covenant of the League of Nations
2. did not consider the Arab inhabitants as an independent nation that could be provisionally recognized
3. At best promised local autonomy to the Arab inhabitants if circumstances permitted

What the Mandate for Palestine recognised in clearly expressed terms was

1. the historical connection of the Jewish people with Palestine and to the grounds for reconstituting the Jewish National Home in that country provided that nothing should be done which might prejudice the civil and religious rights of existing non-Jewish communities in Palestine or the rights and political status enjoyed by Jews in any other country.

2. the authority of the Administration of Palestine to facilitate Jewish immigration and to encourage close settlement by Jews on the land, including State lands and waste lands not required for public purposes, whilst ensuring that the rights and position of other sections of the population were not prejudiced.

Yet the Court makes not one mention at all of these Jewish rights to settle in the West Bank created by an international instrument to which Members of the United Nations were parties and of the obligation of the United Nations to ensure that these rights were preserved for the benefit of the Jewish people in accordance with the obligations imposed on member States by Article 80 of its own Charter.

Who within the ICJ undertook the legal research, which resulted in the ICJ delivering a judgement which failed to identify and consider the existence of those Jewish rights in the West Bank and their relevance to the issues before the Court?

Was such researcher influenced by unsubstantiated material appearing on sites such as palestinefacts.org or palestinerembered.com, which contain similar erroneous statements that the Mandate for Palestine was created under paragraph 4 of Article 22 of the Covenant of the League of Nations?

The ICJ urgently needs to disclose who carried out the research to enable its judgement to be so formulated and the facts justifying it to come to such an unrealistic conclusion.

Had the Court been aware of and considered such Jewish rights in international law, it would have been patently clear that the United Nations General Assembly had consistently sidestepped the rule of law in the many resolutions it had passed on the illegality of settlements established by Israel in the West Bank and on Israel's right to build a security fence in the West Bank.

Why too did United Nations Secretary General, Kofi Annan, omit to include copies of the Treaty of Sevres and the Mandate for Palestine in the extensive dossier of documents given by him to the Court? Was he guilty of misleading the Court by withholding material documents bearing on the issues relating to the advisory opinion being sought? Did he have an obligation to highlight Article 80 of his own Charter and seek the Court's opinion on the relevance of that Article to the legal opinion being sought by the United Nations?

The ICJ's failure to properly consider the legal status of the West Bank in international law has amounted to a gross miscarriage of justice, which will have serious repercussions for resolving the ongoing struggle between Jews and Arabs over the sovereignty of, and the rights of Jews to reside in, the West Bank.

The decision will give credence to the perception of a biased and anti-Israel United Nations and a Court that cannot be trusted to properly consider legal issues referred to it by the United Nations in a fair and impartial manner.

The decision will certainly encourage those web sites continually proclaiming that Jews have no legal rights to settle in let alone claim sovereignty in any part of the West Bank to continue their campaign of vilification and hatred against Jews.

The Jewish People has since 1922 consistently indicated its preparedness to forego its legal rights in part of Palestine but the Arabs have always rejected such overtures. For the Arabs it has always been all or nothing at all.

The ICJ's decision will only encourage the hardening of such a view and weaken those voices within the Arab community who want to see an end to the murder and killing visited on both Jews and Arabs in the last 120 years.

No amount of disinformation, lies or propaganda can change the legal right of the Jewish people to live in the West Bank and to take all reasonable measures to protect their lives from deadly attacks involving ambushes, drive by shootings, home invasion and suicide bombings carried out by their Arab neighbours contrary to the right to life of every human being.

The fact that the ICJ failed to spell out that message loudly and clearly because of its own perceived incompetence and failure to consider the legal status of the West Bank in international law, will be the lasting legacy of a decision which binds no one yet has the power to affect so many.

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