Scoop Feedback: On A Palestinian State

Friday, 15 March 2002, 11:44 am
Opinion: Scoop Feedback

Re: Security Council Says Get Back Israel

The concept regarding a separate Palestinian state was initially made back in 1947 by the UN. And I ask you by what right do the Arabs have to demand the very state they rejected back in 1948. They not only would have had Jordan, they would have had Palestine! The Israelis declared their Independence and were attacked only 24 hours later! Instead of living in Peace with their Jewish neighbors the Arabs chose war. There have been five wars, all were initiated by the Arabs. Each time Israel defended itself and won.

Former Chief Justice of the Supreme Court Meir Shamgar wrote in the 1970s that there is no de jure applicability of the 1949 Fourth Geneva Convention regarding occupied territories to the case of the West Bank and Gaza Strip since the Convention "is based on the assumption that there had been a sovereign who was ousted and that he had been a legitimate sovereign." In fact, prior to 1967, Jordan had occupied the West Bank and Egypt had occupied the Gaza Strip; their presence in those territories was the result of their illegal invasion in 1948. Jordan's 1950 annexation of the West Bank was recognized only by Great Britain and Pakistan and rejected by the vast majority of the international community, including the Arab states.

International jurists generally draw a distinction between situations of "aggressive conquest" and territorial disputes that arise after a war of self-defense. Former State Department Legal Adviser Stephen Schwebel, who later headed the International Court of Justice in the Hague, wrote in 1970 regarding Israel's case ; " Where the prior holder of territory had seized that territory unlawfully, the state which subsequently takes that territory in the lawful exercise of self-defense has, against that prior holder, better title." Israel only entered the West Bank after repeated Jordanian artillery fire and ground movements across the previous armistice lines; additionally, Iraqi forces crossed Jordanian territory and were poised to enter the West Bank. Under such Circumstances, even the UN rejected Soviet efforts to have Israel branded as the aggressor in the Six-Day War.

In any case, under UN Secretary Council Resolution 242 from November 1967, that has served as the basis of the 1991 Madrid Conference and the 1993 Declaration of Principles, Israel is only expected to withdraw "from territories" to "secure and recognized boundaries" and not from "all the territories" captured in the Six-Day War. This language resulted from months of painstaking diplomacy. Thus, the UN Security Council recognized that Israel was entitled to part of these territories for new defensible borders. Taken together with UN Security Council Resolution 338, it became clear that only negotiations would determine which portion of these territories would eventually become "Israeli territories or territories to be retained by Israel's Arab counterpart.

The last international legal allocation of territory that includes those strategic zones of what is today the West Bank and Gaza Strip occurred with the 1922 League of Nations Mandate for Palestine which recognized Jewish national rights in the whole of the Mandated territory. Moreover, these rights were preserved under the United Nations as well according to Article 80 of the UN Charter, despite the termination of the League of Nations in 1946. Given these fundamental sources of international legality, Israel cannot be characterized as a "foreign occupier" with respect to the West Bank and Gaza Strip.

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